Opinion
Sharp, Michael, Outtens&sGraham by Steven D. Michael, Kitty Hawk, for petitioner-appellee.
Alexy, Merrell, Willss&sWills by James R. Wills III, Kitty Hawk, for respondent-appellant.
Grays&s Lloyd, L.L.P. by Benita A. Lloyd, Kill Devil Hills, for Guardian Ad Litem appellee.
WYNN, Judge.
On 8 November 1994, Dare County Department of Social Services (DSS) obtained temporary custody of two minor children after allegations of neglect were filed against their mother, Brenda Leigh Tate. On 23 January 1995, DSS obtained legal custody of the children upon a hearing on the merits and with Ms. Tate's consent. A court order placed the children in separate foster homes and required Ms. Tate to do a number of things including: participate in substance abuse counseling; attend Alcoholics Anonymous or Narcotics Anonymous meetings regularly; remain drug and alcohol free for six months; participate in DSS's parent training program; and maintain an income sufficient to provide for the needs of the children. The court reviewed Ms. Tate's case six months later on 11 August 1995 and again 90 days later on 16 November 1995. In both hearings, the court ordered that the children remain in the custody of DSS due to Ms. Tate's failure to comply with the requirements of the 23 January order.
On 21 March 1996, DSS petitioned the court to terminate Ms. Tate's parental rights. DSS served the petition on Ms. Tate on 15 April 1996 and the court assigned her counsel on 1 May 1996. On 29 May 1996, Ms. Tate answered the petition. On 30 May 1996, the Clerk of Superior Court for Dare County served Ms. Tate with notice of hearing; however, Ms. Tate's counsel was not served with formal notice. Following a hearing on 10 June 1996, the trial court granted DSS' petition. Ms. Tate immediately gave notice of appeal.
On appeal, Ms. Tate contends in six assignments of error that the trial court erred by: (I) denying her motion to continue based upon an insufficient notice of hearing; (II) admitting into evidence the prior orders regarding the adjudication of neglect, disposition, and the review hearings; (III) compelling her to testify; (IV) overruling her objection to opinion testimony of a substance abuse counselor; (V) allowing the testimony of her son's therapist; and (VI) allowing a social worker to testify regarding why her son no longer wants to see her. We affirm the order and judgment of the trial court on all issues.
I.
Ms. Tate first contends that the trial court should have granted her motion to continue because her counsel was not served with notice of the hearing. We disagree.
N.C.Gen.Stat. § 7A-289.29(b) provides that:
The court shall conduct a special hearing after notice of not less than 10 days nor more than 30 days to the petitioner, the answering respondent(s), and the guardian ad litem for the child, to determine the issues raised by the petition and answer(s). Notice of the hearing shall be deemed to have been given upon the depositing thereof in the United States mail first-class postage prepaid, and addressed to the petitioner, respondent, and guardian ad litem or their counsel of record.... (emphasis added).
Ms. Tate contends that rather than sending the notice of the hearing to her, the clerk of court should have sent it directly to her counsel. However, § 7A-289.29(b) gives the clerk of the court the option of serving either the parties or their attorneys. Since mailing the notice only to Ms. Tate complied with the statutory notice requirements, we must find that her objection is without merit.
II.
Ms. Tate next contends that the trial court erred in admitting into evidence various prior orders. This objection is also without merit because "[a]s to the court file generally, a court may take judicial notice of earlier proceedings in the same cause." In re Byrd, 72 N.C.App. 277, 279, 324 S.E.2d 273, 276 (1985). Moreover, in hearings to terminate parental rights, "the trial court must admit and consider all evidence of relevant circumstances or events which existed or occurred either before or after the prior adjudication of neglect." In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232-233 (1984). Since the prior orders were relevant and were "proceedings in the same cause," the trial court acted properly in admitting them into evidence.
III.
Ms. Tate next disagrees with the trial court's finding that a termination proceeding is a civil proceeding and therefore, a parent can be compelled to testify. We uphold the trial court's determination.
In In re Davis, 116 N.C.App. 409, 448 S.E.2d 303 (1994), this Court found the mother in a termination of parental rights hearing to be a party to the proceeding and thus could be called to testify without subpoena as an adverse party when she appeared at the hearing. Ms. Tate's argument that her Fifth Amendment privilege against self incrimination was in some way jeopardized is without merit since she was represented by counsel who did in fact advise her concerning her Fifth Amendment rights when appropriate. See Davis, supra. The trial court, therefore, did not err in compelling Ms. Tate to testify.
IV.
Ms. Tate next objects to the trial court allowing Bonna Meadows, a substance abuse counselor, to testify that she had a substance abuse problem. Her argument is without merit.
Ms. Tate asserts that when Ms. Meadows was asked on voir dire about the reliability of the testing done on Ms. Tate, she stated: "I personally do not know." Ms. Tate argues that this expert witness did not testify as to what is required under N.C.Gen.Stat. § 8C-1, Rule 703 which states that in order for an expert to testify, the facts or data underlying the opinion must be reasonably relied upon by experts within the field.
Ms. Meadows stated that the Sassy test, which was used with Ms. Tate, is a test that is accepted by the State of North Carolina and used for assessments such as those requested by Social Services or the Court for drug-related charges. While Ms. Meadows initially stated that she did not personally know the reliability of the testing, the transcript indicates that she was referring to the percentage of false positives. Based upon this record, there is little question that this test is reasonably relied upon by experts in Ms. Meadows' field. Accordingly, we conclude that the trial court acted properly in admitting Ms. Meadows' testimony.
V.
Ms. Tate next objects to the trial court allowing Ann Laughlin to testify about the statements made by several other experts and persons regarding one of her sons. This objection is also without merit.
Ms. Laughlin testified as an expert in the field of clinical social work and as Ms. Tate's son's treating therapist. As an expert witness, she was entitled to consider facts and data generally relied upon by experts in her field in forming opinions and this need not be evidence that would otherwise be admissible. N.C.G.S. § 8C-1, Rule 703. An expert may offer her opinion without prior disclosure unless an adverse party requests otherwise in which event the expert will be required to disclose such information. Rule 705.
The record shows that at her hearing, Ms. Tate objected to the testimony of Ms. Laughlin on the grounds that she failed to show the basis of her opinion. In response, DSS introduced through Ms. Laughlin the medical records, reports, and other matters that she considered in forming her opinion about the child. Having opened the door for the introduction of this evidence, Ms. Tate cannot now complain. We find that the trial court ruled properly in allowing Ms. Laughlin's testimony into evidence.
VI.
Ms. Tate next objects to the testimony of Nancy Huff, a DSS social worker, who testified as to why Ms. Tate's son no longer wanted to see her. Ms. Tate contends that even though the witness testified in the form of an opinion, her testimony was hearsay as to what Ms. Tate's son stated. We disagree.
N.C.G.S. § 8C-1, Rule 701 provides that "[i]f the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." Ms. Huff made it clear that she was not relying on any statements made by the child and that she formed her opinion based on her observations over the last year and a half. Since Ms. Huff's testimony was not based upon hearsay, the trial court did not err in allowing this testimony into evidence.
We have considered Ms. Tate's remaining assignments of error and after careful review, we conclude that they are without merit.
In sum, the trial court's decision to terminate Ms. Tate's parental rights is affirmed.
Affirmed.
LEWIS and JOHN C. MARTIN, JJ., concur.