In Re DR

616 S.E.2d 300
CourtCourt of Appeals of North Carolina
DecidedAugust 2, 2005
DocketCOA04-953
StatusPublished

This text of 616 S.E.2d 300 (In Re DR) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re DR, 616 S.E.2d 300 (N.C. Ct. App. 2005).

Opinion

616 S.E.2d 300 (2005)

In the Matter of D.R., Minor child.

No. COA04-953.

Court of Appeals of North Carolina.

August 2, 2005.

Charlotte W. Nallan, for petitioner-appellee Buncombe County Department of Social Services.

David Childers, Mount Holley, for respondent mother-appellant.

Richard E. Jester, Louisburg, for respondent father-appellant.

*302 TYSON, Judge.

S.J.R. ("respondent-father") and P.R. ("respondent-mother") (collectively, "respondents") appeal a judgment terminating their parental rights over their child, D.R. We affirm.

I. Background

D.R. was born on 16 October 1996 to respondents and at the time of the hearing, was seven-and-one-half years old. Buncombe County Department of Social Services ("DSS") became involved with D.R. in December 2000 when it received reports of overly severe discipline by respondent-father. DSS learned of ongoing domestic violence between respondents, substance abuse by respondents, and unstable living arrangements. The record shows respondent-mother obtained a domestic restraining order against respondent-father in Fall 2001. DSS attempted to help respondents care for D.R. at their residence. Physical and recurring substance abuses in the home led to the removal of D.R. and his placement with his paternal grandmother in January 2002.

D.R. exhibited serious mental health problems and aggressive behavior which prevented the paternal grandmother from caring for him. DSS took custody of D.R. on 25 January 2002 and placed him with foster parents where he has since remained. DSS petitioned the trial court to find D.R. neglected. On 18 April 2002, the trial court ordered: (1) D.R. neglected; (2) D.R. to remain in DSS's custody; (3) respondents and D.R. undergo psychological evaluations and treatment; (4) respondents complete anger management, substance abuse, and parenting classes; (5) respondents maintain employment and provide financial support to D.R.; and (6) respondents receive weekly visitation with D.R.

While D.R. remained in foster care, DSS received reports of inappropriate sexual discussions and behavior by D.R. He told his foster parents that he had watched respondents engage in sexual intercourse and participated with them in sexual activities. D.R. also reported that a step-brother had engaged in oral sex with him at respondent-mother's home. The foster parents learned D.R. had instigated sexual conduct with another boy at church. In August 2002, DSS petitioned the trial court to find D.R. an abused juvenile, alleging the facts as provided by the foster parents. In response, respondents moved the trial court for expenses to cover expert psychological evaluations, which was denied. The petition was not immediately heard due to discovery motions, requests for continuances, and the trial court's calendar. DSS later voluntarily dismissed the abuse petition, without prejudice, on 28 August 2003.

D.R. underwent extensive psychological evaluations and treatment during placement with his foster parents. He was treated for depression, anxiety, conflict, aggressiveness, abusiveness, Post Traumatic Stress Disorder, and inappropriate sexual knowledge and conduct.

In January 2003, respondents were arrested and charged with multiple counts of first-degree sexual offense and taking indecent liberties against a child. Their criminal trial is pending. A permanency planning and review hearing was held in March 2003. The trial court ordered D.R. to remain in DSS's *303 custody and for reunification efforts with respondents to continue. Based on respondents' failure to address the issues causing D.R.'s removal and D.R.'s continued emotional problems, the trial court changed the permanency plan for D.R. from reunification to adoption in August 2003. This permanency plan was reviewed and renewed in September and November 2003.

On 4 September 2003, DSS petitioned the trial court to terminate respondents' parental rights alleging D.R. was: (1) emotionally and sexually abused; (2) neglected; and (3) left in foster care for more than twelve months without respondents making reasonable efforts towards correcting the conditions leading to D.R.'s removal.

A hearing was held on 10, 12, 13, and 14 November 2003. In response to evidence raised during previous hearings, respondents asserted none of the sexual activities D.R. spoke of were true and accused the foster parents of "coaching" D.R. to make the allegations. Respondent-father argued the problems arose after D.R. was removed from respondent-mother's home. Respondents offered evidence that both were sober and had completed physical and substance abuse programs.

The trial court found respondents' evidence "lacked credibility" and determined the allegations in the petition to be true. The trial court determined the following grounds existed to terminate respondents' parental rights: (1) neglect under N.C. Gen.Stat. § 7B-1111(a)(1); (2) abuse under N.C. Gen.Stat. § 7B-1111(a)(1); and (3) willful abandonment in foster care placement for more than twelve months. It further concluded that it was in D.R.'s best interest to terminate respondents' parental rights. The termination order was entered on 22 January 2004. Both respondents appeal.

II. Issues

Respondents argue the trial court erred by: (1) allowing testimony in violation of their Sixth Amendment rights; (2) finding facts and making conclusions of law without clear, cogent, and convincing evidence; (3) denying respondents' motion for funds for an expert witness and a telephone deposition; (4) entering the termination of parental rights order after the statutory thirty day time limit.

III. Sixth Amendment

Respondents argue the trial court erred by admitting statements made by D.R. through the testimony of social workers, a foster parent, and psychologists. Specifically, they contend the testimony was admitted in violation of their Sixth Amendment right to confront witnesses against them. We disagree.

The Sixth Amendment to the United States Constitution states in part, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him." U.S. Const. Amend. VI (emphasis supplied). The United States Supreme Court held in Crawford v. Washington, the Confrontation Clause from the Sixth Amendment bars admission of out-of-court testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177, 203 (2004). "A termination of parental rights hearing is a civil rather than criminal action, with the right to be present, to testify, and to confront witnesses subject to `due limitations.'" In re Faircloth, 153 N.C.App. 565, 573, 571 S.E.2d 65, 71 (2002) (citing In re Murphy, 105 N.C.App. 651, 658, 414 S.E.2d 396, 400, aff'd, 332 N.C. 663, 422 S.E.2d 577 (1992); In re Barkley, 61 N.C.App. 267, 270, 300 S.E.2d 713, 715 (1983)).

Here, DSS's workers, D.R.'s foster parents, and psychologists testified concerning statements D.R. made to them and D.R.'s questionable activities.

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Bluebook (online)
616 S.E.2d 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dr-ncctapp-2005.