Davis, Matter of

• Decision Date: 20 September 1994
• Docket Number: No. 935DC1012,935DC1012
• Citation: 448 S.E.2d 303,116 N.C.App. 409
• Court: North Carolina Court of Appeals
• Parties: In the Matter of Brittany Michelle DAVIS.

Page 303

448 S.E.2d 303

116 N.C.App. 409

In the Matter of Brittany Michelle DAVIS.

No. 935DC1012.

Court of Appeals of North Carolina.

Sept. 20, 1994.

Julia Talbutt, Wilmington, for petitioner-appellee New Hanover County Dept. of Social Services.

William Norton Mason, Wilmington, for appellee Guardian ad Litem.

Nora Henry Hargrove, Wilmington, for respondents-appellants.

GREENE, Judge.

James F. Davis, Jr. and Dena Davis (respondents) appeal from an order filed 26 March 1993 in New Hanover County District Court, terminating respondents' parental rights to Brittany Michelle Davis (Brittany).

On 28 October 1992, the New Hanover County Department of Social Services (DSS) filed a petition to terminate respondents' parental rights because, among other reasons, Brittany is a neglected juvenile due to respondents' failure "to provide adequate care, supervision or discipline throughout Brittany's life." At the hearing on DSS's petition to terminate respondents' parental rights, evidence was introduced showing that Brittany had been adjudicated a neglected juvenile by order dated 8 November 1990. By subsequent orders dated 21 March 1991, 9 January 1992, and 9 July 1992, custody of Brittany remained with DSS. Each order provided that James F. Davis, Jr. (Mr. Davis) was to receive counseling on issues of domestic violence, that Dena Davis (Mrs. Davis) was to take empowerment classes, and that both were to take parenting classes and take advantage of mental health services and psychological counseling services.

Mary Southerland (Ms. Southerland), a social worker for DSS, testified at the hearing that she became involved with Brittany's case after Brittany had been in foster care approximately ten months, to help respondents "correct the conditions that led to Brittany being placed in foster care to begin with." She told respondents they needed "to attend and complete parenting classes," have a "stable house," have "stable job[s]," and "be engaged in regular long-term counseling, which they had not." Before Ms. Southerland received Brittany's case, two other workers "had tried to get [respondents] involved in parenting classes" but could not get them to attend. "Only when [DSS] gave notice to [respondents] [in the spring of 1992] of the change of the permanent plans--change from reunification to termination, that they did finally begin to show an interest in possibly attending classes." Mrs. Davis then completed a parenting class in the summer of 1992, but Mr. Davis has failed to do so. Ms. Southerland testified that although respondents have been in their current residence since November 1992, "[f]rom October of '90 and July of '92," "there were approximately twenty changes of residence."

In addition, Ms. Southerland testified that respondents' employment history has been nonexistent or sporadic at best. As to counseling, she has "over the past year and a half encouraged counseling many times due [to] their history [and] there has been very, very little.... Even after psychiatric hospitalization, they did not follow up with regular, consistent, ongoing, long-term counseling." As to visitation, respondents attended the majority of scheduled visitations but overnight visitations ceased after "during both visits there had been loud parties and drinking and so forth while Brittany was in the home to the point where [respondents] were evicted from this park." Ms. Southerland also testified that since respondents were informed that termination proceedings were being considered, they missed two scheduled visits with Brittany and a scheduled conference with Ms. Southerland. Furthermore, she has "not been made aware of any substantial progress in the last few months."

The attorney for DSS called Mrs. Davis to testify; however, respondents' attorney objected because there was no subpoena issued calling Mrs. Davis as a witness and because Mrs. Davis might incriminate herself. The court overruled the objection and stated that asserting the 5th Amendment privilege against self-incrimination "would be done on a question by question basis." Mrs. Davis then took the stand and testified that since Brittany was placed in custody of DSS, she has a stable job, she and Mr. Davis have obtained a stable home, they "talk about [their] problems instead of fighting them out," and she completed a parenting class.

After the hearing, Judge Shelly Sveda Holt made the following findings of fact in an order dated 26 March 1993:

2. ... That Brittany Michelle Davis has been continuously placed in foster care since 4 October 1990.

....

13. That the order of 9 January 1992, provided that there has been an absolute failure on the part of Mr. and Mrs. Davis to resolve marital conflicts, such that the environment which would be provided the child Brittany Davis was perpetuated as a high risk environment.... in July 1992, the Court found that there had been no change of circumstances in regard to attendance at Empowerment course, in regard to counseling or attendance at a parenting course. The order of 9 July 1992, found significant Mr. and [Mrs.] Davis's failure to attend counseling as the issues of domestic violence had been central to the elements of neglect previously adjudicated.

....

15. ... Mr. and [Mrs.] Davis made no attempts at compliance with the clear and consistent provisions of the Court orders until sometime in October when Mr. and [Mrs.] Davis enrolled in a parenting course in October 1992, the same month the termination of parental rights action was filed. That the order of 9 July 1992, found that Mr. and [Mrs.] Davis had attended on 7 July 1992, the first class of a parenting course. That this parenting course was not completed by Mr. nor [Mrs.] Davis.

Based on these findings, the court concluded that Brittany "has been and continues to be a neglected juvenile within the meaning of G.S. 7A-517(21)" in that respondents have not acknowledged the need for counseling nor participated in counseling since February 1991 despite court orders to do so, and respondents "have wilfully left Brittany Davis in foster care without showing a positive response under all the circumstances to the diligent efforts of [DSS] to correct those conditions which led to the original removal of Brittany." The court also concluded that, from clear, cogent and convincing evidence, there has been "no substantial change in circumstances which led to the removal of [Brittany] and ... no compliance on the part of [respondents] with provisions of four previous Court orders, such that this Court could find any likelihood of improved conditions ... suitable to meet the needs of [Brittany]." Based on these findings and conclusions, the trial court ordered that the parental rights of respondents be terminated.

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The issues presented are whether: (I) Mrs. Davis was properly compelled to testify when she was not under subpoena nor otherwise summoned to court; and (II) there was clear, cogent and convincing evidence to support ...