Opinion
No. COA14–1063.
04-21-2015
In The Matter of: D.F.
Leake & Stokes, by Larry Leake, for appellee-petitioner Madison County Department of Social Services. Michael E. Casterline, for respondent-appellant. Cranfill Sumner & Hartzog LLP, by Laura E. Dean, for appellee-guardian ad litem.
Leake & Stokes, by Larry Leake, for appellee-petitioner Madison County Department of Social Services.
Michael E. Casterline, for respondent-appellant.
Cranfill Sumner & Hartzog LLP, by Laura E. Dean, for appellee-guardian ad litem.
STROUD, Judge.
Respondent appeals from district court orders terminating her parental rights to her daughter. For the following reasons, we affirm.
I. Background
On 3 October 2011, when Denise was six years old, the Madison County Department of Social Services (“DSS”) filed a petition alleging that she was neglected and dependent; the district court ordered DSS take nonsecure custody of Denise. On 24 May 2013, DSS filed a petition to terminate respondent's parental rights to Denise. On 25 February 2014, respondent filed a motion to dismiss the petition to terminate her parental rights. In May of 2014, the trial court conducted a termination hearing, and denied respondent's motion to dismiss. On 4 June 2014, the trial court entered an order and found that grounds for terminating respondent's rights existed in that she had “willfully left the juvenile in foster care or other placement outside the home for more than twelve (12) months without showing to the satisfaction of the Court that reasonable progress under the circumstances had been made in correcting the conditions which led to the removal of the juvenile[;]” in a separate disposition order, the trial court found that termination of respondent's parental rights was in the best interest of Denise. Respondent appeals.
A pseudonym will be used to protect the identity of the minor involved.
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II. Motion to Dismiss
Respondent contends “the trial court committed reversible error by denying the motion to dismiss the petition, when the petition failed to allege sufficient facts and failed to contain information regarding the status of the child.” (Original in all caps.) We review DSS's petition to see “whether, as a matter of law, and taking the allegations in the [petition] as true, the allegations are sufficient to state a claim upon which relief may be granted under any legal theory.” In Re Quevedo, 106 N.C.App. 574, 578, 419 S.E.2d 158, 159 (1992) (determining the father's motion to dismiss a petition to terminate his parental rights for failure to comply with a statutory mandate should be treated as a Rule 12(b)(6) motion).
A. Sufficient Facts
A petition to terminate parental rights must allege “[f]acts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist.” N.C. Gen.Stat. § 7B–1104(6) (2013). “While there is no requirement that the factual allegations be exhaustive or extensive, they must put a party on notice as to what acts, omissions, or conditions are at issue.” In re Hardesty, 150 N.C.App. 380, 384, 563 S.E.2d 79, 82 (2002).
Here, DSS's petition alleged the following:
9. That the juvenile has been in the custody of the Madison County Department of Social Services for a total of nineteen (19) months.
10. During the time that the juvenile has been in the Petitioner's custody, the respondent mother has failed to make reasonable progress on her case plan; has been unable to maintain stable housing; and has failed to make reasonable progress toward any meaningful contact with the juvenile.
11. That grounds exist to terminate the parental rights of the respondent mother ... pursuant to N.C.G.S. § 7B–1111, as follows:
a) That respondent mother has willfully left the juvenile in foster care or other placement outside the home for more than twelve (12) months without showing to the satisfaction of the Court that reasonable progress under the circumstances has been made in correcting those conditions which led to removal of the juvenile.
We conclude that the allegations in the petition were sufficient to put respondent-mother on notice regarding the “acts, omissions, or conditions ... at issue[;]” id.,therefore, it was sufficient to comply with North Carolina General Statute § 7B1104(6). SeeN.C. Gen.Stat. § 7B–1104(6).
B. Status of the Child
North Carolina General Statute § 50A–209(a) provides,
In a child-custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period.
N.C. Gen.Stat. § 50A–209(a) (2013). Here, the petition alleged that the “[t]he juvenile presently resides in Buncombe County, North Carolina” and “is currently placed with her paternal uncle and aunt,” but it did not allege any information as to “the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period.” Id.However, failure to comply with North Carolina General Statute § 50A–209(a) need not result in dismissal of the case. See In re A.R.G., 361 N.C. 392, 398–99, 646 S.E.2d 349, 353 (2007) (determining that trial court still had jurisdiction to hear the case despite DSS's failure to comply with North Carolina General Statute § 50A–209 ). Because DSS complied with North Carolina General Statute § 7B–1104(6), DSS's failure to comply with North Carolina General Statute § 50A–209 need not result in dismissal, and “the allegations are sufficient to state a claim upon which relief may be granted[,]” In Re Quevedo, 106 N.C.App. at 578, 419 S.E.2d at 159, the trial court did not err in denying respondent's motion to dismiss. This argument is overruled.
II. Hearsay
At the hearing, DSS offered the testimony of one witness, DSS employee Faith Ashe. Ms. Ashe's testimony was largely based on DSS reports compiled prior to her receiving the case. Respondent contends that “the trial court erred in allowing inadmissible hearsay evidence when the social worker testified to information contained in DSS's court reports, of which she had no first-hand knowledge.” (Original in all caps.) While respondent appears to agree that Ms. Ashe's testimony regarding the DSS reports falls under the business records exception to hearsay she contends that (1) Ms. Ashe did not establish a proper foundation for the exception until aftermuch of her hearsay testimony and (2) some of the evidence testified to from the reports constituted double hearsay. “The admissibility of evidence at trial is a question of law and is reviewed de novo.” State v. McLean, 205 N.C.App. 247, 249, 695 S.E.2d 813, 815 (2010).
A. Foundation for Hearsay Exception
Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”N.C. Gen.Stat. § 8C–1, Rule 801(c) (2013). “Hearsay is not admissible except as provided by statute or by these rules.” N.C. Gen.Stat. § 8C–1, Rule 802 (2013). The trial court allowed Ms. Ashe's testimony under the business records exception:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
N.C. Gen.Stat. § 8C–1, Rule 803(6) (2013).
“A qualifying business record is admissible when a proper foundation is laid by testimony of a witness who is familiar with the records and the methods under which they were made so as to satisfy the court that the methods, the sources of information, and the time of preparation render such evidence trustworthy.” In re S.D.J.,192 N.C.App. 478, 482, 665 S.E.2d 818, 821 (2008) (citations, quotation marks, and ellipses omitted). Ms. Ashe testified that DSS court reports are kept and maintained as the case goes along, that they are made by the social worker involved in the case, that it was the regular practice of DSS to make the records, and that the records are made as part of the regular business practice of DSS. Though Ms. Ashe did not provide her testimony which established the foundation for the business records exception until after her initial direct examination, we see no prejudice to respondent. See generally State v. Ferguson, 145 N.C.App. 302, 307, 549 S.E.2d 889, 893, disc. review denied, 354 N.C. 223, 554 S.E.2d 650 (2001) ( “Evidentiary errors are harmless unless a defendant proves that absent the error a different result would have been reached at trial.”). Ms. Ashe's testimony was properly admitted under the business records exception to hearsay. See In Re Smith, 56 N.C.App. 142, 148, 287 S.E.2d 440, 444, cert. denied, 306 N.C. 385, 294 S.E.2d 212 (1982) (“Petitioner offered the testimony of Kathy Brock and Nancy Berson, both of whom were social workers with the Durham County Department of Social Services. Neither of the two witnesses had worked on the Smith case until after the petition had been filed. Thus, argues respondent, their testimony was incompetent on matters occurring prior to their first contact with respondent. While it is true that the witnesses had no firsthand knowledge of the events that took place between 1970 and when they assumed responsibility of the case, each had familiarized herself with the case history of the client based on the records kept by the department of social services. Those records were admissible under the business records exception to the hearsay rule.”)
B. Double Hearsay
Double hearsay or “[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.” N.C. Gen.Stat. § 8C–1, Rule 805. Respondent directs our attention to two instances of what she deems to be double hearsay. In the first instance, respondent contends Ms. “Ashe testified from the court reports about Denise's disclosure to her therapist.” However, Ms. Ashe's statements regarding Denise's disclosure to her therapist were in response to the question, “What led to the Department taking custody of the child in 2011?” and thus were not offered “to prove the truth of the matter asserted[,]” but rather to explain why DSS took custody of Denise, and as such were properly admissible. See In re Mashburn, 162 N.C.App. 386, 390, 591 S.E.2d 584, 588 (2004) (“Therefore, Ms. Sweat's description of the report, containing the female child's description of the stepfather's abuse of her, would not constitute inadmissible hearsay because it explained why the Buncombe County DSS commenced an investigation[.]”) Accordingly, the trial court did not err in allowing Ms. Ashe's testimony regarding Denise's disclosures to her therapist.
In the next instance, respondent argues Ms. Ashe “testified about the third-party lab results of ... [respondent's] drug screens.” In State v. Miller,this Court stated,
We hold the results of the blood test constitute a record made in the usual course of business, made contemporaneously with the events and recorded by one with authority to do so before litigation arose. Further, we hold the blood test results were properly identified and authenticated. Authentication is not undermined because the person who actually analyzed the blood in the stat laboratory was not present to testify as a witness.
80 N.C.App. 425, 429, 342 S.E.2d 553, 556 (1986). Thus, we conclude that Ms. Ashe properly laid the foundation for the business records exception to the hearsay rule and that any double hearsay was also properly admitted via its own exception. This argument is overruled.
III. Findings of Fact
Lastly, respondent contends that “the trial court erred in terminating the [respondent's] parental rights for failing to make reasonable progress, when a critical finding of fact in the termination order is not supported by the evidence.” (Original in all caps.) Respondent directs our attention to finding of fact 3 which states, “[b]oth of the Respondents consented to an adjudication of dependency, with the reason for the initial removal being based on substance abuse of both Respondents.” Respondent contends that finding of fact 3 is not supported by the evidence because no adjudication order exists. Respondent further contends that finding of fact 3 is “critical” because it establishes the reason for Denise's removal and that the trial court cannot evaluate respondent's progress without a proper determination of the conditions leading to removal. Respondent also argues that it is “fundamentally [un]fair” for the trial court to proceed to termination without a proper underlying adjudication.
The standard of review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law. We then consider, based on the grounds found for termination, whether the trial court abused its discretion in finding termination to be in the best interest of the child.
In re Shepard, 162 N.C.App. 215, 221–22, 591 S.E.2d 1, 6 (2004) (citation and quotation marks omitted).
Here, our record does not contain an initial adjudication order. However, in a prior order, not challenged on appeal, the trial court found that the adjudication of Denise occurred in February of 2012 and noted respondent's issues with substance abuse. Even assuming arguendo,that there were grave errors with the adjudication of Denise, this does not necessarily affect the termination order because
this would create uncertainty and render judicial finality meaningless. Termination orders entered three, five, even ten years after the initial adjudication could be cast aside. Secondly, by necessarily tying the adjudication proceedings and termination of parental rights proceedings together, respondent misapprehends the procedural reality of matters within the jurisdiction of the district court: Motions in the cause and original petitions for termination of parental rights may be sustained irrespective of earlier juvenile court activity....
Finally, the consequences of reversing termination orders for deficiencies during some prior adjudication would yield nonsensical results.
In re O.C., 171 N.C.App. 457, 463–64, 615 S.E.2d 391, 396 (citation omitted), disc. review denied,360 N.C. 64, 623 S.E.2d 587 (2005). Ultimately, even disregarding finding of fact 3 entirely, we note that multiple other findings were made and are unchallenged on appeal that make it clear that respondent failed to comply with her case plan and make reasonable progress. As such, the trial court did not err in concluding respondent's parental rights should be terminated. This argument is overruled.
IV. Conclusion
For the foregoing reasons, we affirm.
AFFIRMED.
Judges HUNTER, JR. and DILLON concur.
Report per Rule 30(e).
Opinion
Appeal by respondent-mother from orders entered 4 June 2014 by Judge F. Warren Hughes in District Court, Madison County. Heard in the Court of Appeals 16 March 2015.