Opinion
No. COA11-134
Filed 2 August 2011 This case not for publication
Appeal by mother from order entered 18 October 2010 by Judge Beverly Scarlett in Orange County District Court. Heard in the Court of Appeals 5 July 2011.
Northen Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe, for petitioner-appellee Chatham County Department of Social Services. Ryan McKaig, for respondent-mother. Pamela Newell, for Guardian ad Litem.
Orange County No. 07 JT 120.
Where mother failed to make any objections to comments by the trial court that she now argues demonstrated bias toward her, that argument was not properly preserved for appellate review. Where mother failed to raise constitutional issues at trial, they cannot be raised for the first time on appeal. Where mother failed to file a timely response to the motion to terminate parental rights, the trial court did not abuse its discretion in limiting the evidence presented at the hearing. Where mother failed to make a proffer in the record of testimony that she now contends was improperly excluded, this Court will not engage in a prejudice analysis based upon speculation.
I. Factual and Procedural History
The Orange County Department of Social Services ("OCDSS") became involved in this matter on 21 August 2007, when it filed a petition alleging that D.W. Jr., ("D.W.") was a dependent juvenile and assumed non-secure custody. On 28 August 2007, OCDSS and D.W.'s parents entered a consent order which held that D.W. was dependent. OCDSS initially worked to reunify D.W. with his parents, but by an order entered on 12 March 2009, OCDSS was relieved of reunification efforts, and the permanent plan for D.W. was changed to adoption.
On 9 March 2009, OCDSS filed motions to terminate the parental rights of D.W.'s parents. D.W.'s father filed a response to the motions on 1 April 2009, and his mother ("mother") filed her response on 5 June 2009. After a hearing on 16 June 2009, the trial court entered an order which terminated the parental rights of both mother and father. Mother appealed, and this Court reversed the trial court's order terminating her parental rights and remanded the case to the trial court for a new hearing. In re D.W., ___ N.C. App. ___, 693 S.E.2d 357 (2010) (holding that the trial court erred in denying mother's motion to continue). Upon remand, the trial court held a hearing on 29 April 2010, and entered a new order terminating mother's parental rights on 18 October 2010.
Mother appeals.
II. Bias of Trial Judge
In her first argument, mother contends the trial court erred by conducting both termination hearings in such a manner as to show bias against mother and in favor of OCDSS, in violation of her due process rights under Article I, Section 19 of the North Carolina Constitution and the Fourteenth Amendment to the United States Constitution. We disagree.
At the outset, we note that mother is not challenging the underlying grounds found by the trial court to terminate her parental rights. Both arguments made by mother are based on procedural grounds.
Mother did not raise any constitutional arguments before the trial court. Mother did not raise any objection at the hearing indicating that she felt the trial court was biased against her. Mother did not object to any comments made by the trial court, nor did mother make a motion for the trial judge to recuse herself. "In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R. App. P. 10(a)(1) (2010). "Moreover, it is well settled that a constitutional issue not raised in the lower court will not be considered for the first time on appeal." In re S.C.R., 198 N.C. App. 525, 530, 679 S.E.2d 905, 908 (2009) (citing State v. Benson, 323 N.C. 318, 321-22, 372 S.E.2d 517, 519 (1988)), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676, (2009).
This argument is not properly before this Court, and is dismissed.
III. N.C. Gen. Stat. § 7B-1107
In her second argument, mother contends the trial court erred in allowing her to present only limited evidence, consisting entirely of her own testimony, and in limiting her right to cross-examine witnesses pursuant to N.C. Gen. Stat. § 7B-1107 (2009). We disagree.
A. Standard of Review
N.C. Gen. Stat. § 7B-1107 holds that when a respondent-parent fails to file a written answer to a motion to terminate their parental rights within 30 days after service then "the court shall order a hearing on the petition or motion," "may examine the petitioner or movant or others on the facts alleged in the petition or motion," and "may issue an order terminating all parental and custodial rights of that parent with respect to the juvenile." "It is well established that the word `shall' is generally imperative or mandatory." Puckett v. Norandal USA, Inc., ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (May 3, 2011) (COA10-805) (quotation omitted). However, "the use of `may' generally connotes permissive or discretionary action and does not mandate or compel a particular act." Patterson v. Patterson, 137 N.C. App. 653, 664, 529 S.E.2d 484, 490 (2000) (quotation omitted), disc. review denied, 352 N.C. 591, 544 S.E.2d 783 (2000). We hold that while the trial court is required to hold a hearing on the petition or motion, we review the trial court's decision to limit evidence presented for an abuse of discretion.
B. Trial Court's Ruling
In the instant case, the motion for termination of parental rights, was made on 9 March 2009. Mother did not file an answer until almost three months later, on 5 June 2009.
At the beginning of the hearing on termination of mother's parental rights OCDSS made a motion to limit mother's presentation of evidence pursuant to N.C. Gen. Stat. § 7B-1107.
N.C. Gen. Stat. § 7B-1107 states:
Upon the failure of a respondent parent to file written answer to the petition or written response to the motion within 30 days after service of the summons and petition or notice and motion, or within the time period established for a defendant's reply by G.S. 1A-1, Rule 4(j1) if service is by publication, the court may issue an order terminating all parental and custodial rights of that parent with respect to the juvenile; provided the court shall order a hearing on the petition or motion and may examine the petitioner or movant or others on the facts alleged in the petition or motion.
The trial court initially granted OCDSS' motion, limiting mother's ability to cross-examine witnesses to questions based on what was presented on direct examination and what was alleged in the petition to terminate parental rights and denying her the opportunity to present evidence. However, during the course of the hearing the trial court modified its ruling.
"An order or judgment is merely interlocutory if it does not determine the issues but directs some further proceeding preliminary to final decree. Such an order or judgment is subject to change by the court during the pendency of the action to meet the exigencies of the case." State v. Turner, 34 N.C. App. 78, 83, 237 S.E.2d 318, 322 (1977) (quoting Greene v. Laboratories, Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961)). "Interlocutory orders, not finally determining or adjudicating rights of the parties are always under the control of the court, and, upon good cause shown, they can be amended, modified, changed, or rescinded as the court may think proper." Id. at 83-84, 237 S.E.2d at 322 (quotation omitted). Therefore, we review the trial court's ruling based upon N.C. Gen. Stat. § 7B-1107 as it was applied during the course of the hearing and not as set forth in the original ruling.
The trial court allowed mother to present a limited case in chief. The trial court's final ruling was as follows:
I'm going to allow her to testify, but I am not interested in anything other than where she is now with stable housing, income, and mental health treatment. And if she is, um, compliant with mental health treatment, I will need some independent verification of that unless there is somebody else here to testify.
C. Application of N.C. Gen. Stat. § 7B-1107
This Court has construed Section 7B-1107 as follows:
If a parent fails to file a written response within 30 days after the filing of the motion to terminate parental rights, the trial court may issue an order terminating the parental rights of that parent. N.C. Gen. Stat. § 7B-1107 (2007). However, the trial court is required to first conduct a hearing on the motion, and may terminate the parental rights of the parent only if one or more grounds [sic] of the statutory grounds exist. In re Tyner, 106 N.C. App. 480, 483-84, 417 S.E.2d 260, 262 (1992) (internal citation omitted); see also N.C. Gen. Stat. § 7B-1111(a) (2007).
In re J.T.F., No. COA08-814, 2008 WL 5224278, at *3 (N.C. App. 2008) (unpublished).
In this case, the trial court conducted a hearing to determine if statutory grounds existed to terminate mother's parental rights. This Court has approved of the application of N.C. Gen. Stat. § 7B-1107 so long as no "default type" judgment is entered pursuant to the statute. See In re Tyner, 106 N.C. App. 480, 483, 417 S.E.2d 260, 261 (1992). In the instant case, the trial court conducted a hearing and found ample evidence to support three grounds for terminating mother's parental rights: (1) neglect, (2) mother allowed the minor child to remain in the custody of OCDSS for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which lead to the removal of the juvenile, and (3) dependency. The trial court heard extensive testimony, and only limited the mother's testimony to those factors that were the basis of the petition for termination of parental rights. The trial court did not enter a default type judgment terminating mother's parental rights.
D. Prejudice
Even assuming arguendo that the trial court erred in limiting mother's cross-examination of petitioner's witnesses and the presentation of evidence, this issue is not properly before this Court.
[T]he record does not show the substance of the excluded evidence and we are unable to determine if the ruling of the court was prejudicial. N.C.G.S. Sec. 8C-1, Rule 103(a)(2) (error may not be predicated on exclusion of evidence unless the "substance of the evidence was made known to the court" by an offer of proof or was apparent from the context of the questions asked). See also State v. Satterfield, 300 N.C. 621, 628, 268 S.E.2d 510, 515-16 (1980).
In re Parker, 90 N.C. App. 423, 431-32, 368 S.E.2d 879, 884-85 (1988). Mother made no offer of proof as to what evidence she would have presented had the trial court not placed limitations on her presentation of evidence. There is no basis upon which we could determine that the exclusion of that evidence was prejudicial.
This argument is without merit.
AFFIRMED.
Judges HUNTER, ROBERT C., and McCULLOUGH concur.
Report per Rule 30(e).