In re Brim, No. COA99-1230.
| Decision Date | 29 August 2000 |
| Docket Number | No. COA99-1230. |
| Parties | In the Matter of Jeremy BRIM. |
| Court | North Carolina Court of Appeals |
Forsyth County Department of Social Services, by Assistant County Attorney Theresa A. Boucher, for petitioner appellee.
Lisa S. Costner, Winston-Salem, for Merri Mueller respondent appellant.
Teeter Law Firm, by Kelly S. Lee, Winston-Salem, for Guardian ad Litem respondent appellee.
Respondent contends that (I) the written termination order contained certain findings of fact not stated by the trial court in its oral entry of the order in open court; (II) grounds did not exist to terminate her parental rights; (III) termination of her parental rights was not in the best interest of the child; and (IV) certain letters written by Dr. Chad Stevens were erroneously received and considered as evidence. After careful consideration of the entire voluminous record, we affirm the judgment of the trial court.
We note initially that the North Carolina Juvenile Code, including provisions relating to the termination of parental rights, was extensively revised and renumbered as Chapter 7B of our General Statutes, effective 1 July 1999. 1998 N.C. Sess. Laws ch. 202. The petition for termination of parental rights in the case before us was filed on 27 April 1998, prior to the effective date of the revisions. Therefore, all references in this opinion are to the provisions of Chapter 7A then in effect.
First, respondent argues that the written order terminating her parental rights contains language not included in the trial court's recital in open court of his decision in this matter. Here, after a detailed recital in open court of its findings, which consumed more than 25 pages of the transcript, the trial court concluded that "grounds exist pursuant to N.C.G.S. § 7-A-289.32 [sic] to terminate parental rights under parens (2), (3), (4), (5), and (7)," and further concluded that termination was in the best interest of the child. The written order entered by the trial court contained a similar dispositional provision, and its detailed written order generally conforms with the oral statements made by the trial court.
Respondent argues, however, that the written order signed and entered by the trial court contained at least two findings not recited in open court. First, Finding of Fact No. 14 in the written order stated in part that "[s]ince December 18, 1996, Merri Mueller has continued to neglect Jeremy Brim by failing to complete the terms of the Juvenile Court's Order which was specifically designed to alleviate the conditions which brought the child into foster care and facilitate reunification." Second, Finding of Fact No. 62 in the written order stated that "[p]lacement of Jeremy Brim into the care of Mary [sic] Mueller would result in a probability of a repetition of neglect."
N.C. Gen.Stat. § 7A-651 (1995). We have previously held that this statute "does not require the trial judge to announce in open court his findings and conclusions...." Instead, "the terms of the disposition [must] be stated in open court with `particularity.'" Matter of Bullabough, 89 N.C.App. 171, 179, 365 S.E.2d 642, 646 (1988).
Having carefully reviewed both the oral and written versions of the trial court's termination order, we hold that the trial court did not err. First, the findings about which respondent complains relate to the adjudication by the trial court pursuant to the provisions of N.C. Gen.Stat. § 7A-289.32 (1995) that grounds for termination of respondent's parental rights existed at the time of the hearing, not to the court's disposition pursuant to N.C. Gen.Stat. § 7A-289.31. N.C. Gen. Stat. § 7A-561 (1995), on which respondent relies, is a part of Article 41 of Chapter 7A and relates to dispositional orders entered in cases where juveniles have been adjudicated to be delinquent, undisciplined, abused, neglected, or dependent. Article 24B of Chapter 7A dealt with proceedings to terminate parental rights.
Unlike N.C. Gen.Stat. § 7A-651, there is no requirement in N.C. Gen.Stat. § 7A-289.31(a) that the court orally state "with particularity" the exact terms of the disposition.
Here, following a lengthy and complicated termination trial with a transcript of more than 1,000 pages, the able trial court weighed the evidence, then recited forty detailed findings of fact in open court, made conclusions of law, and decreed the termination of respondent's parental rights. The written order later entered does not differ in substance from that announced in open court. This assignment of error is overruled.
Next, respondent assigns error to the trial court's consideration of certain letters written by Dr. Chad Stevens, a Resident in Psychiatry at Baptist Hospital. Respondent argues that the letters contained opinions that should not have been considered by the court because Dr. Stevens was not tendered as an expert witness. Specifically, respondent challenges Finding of Fact No. 16 in the Order terminating respondent's parental rights, in which the trial court stated that [a]t a periodic review hearing on January 23, 1997, Court reviewed a letter from Dr. Stevens, Ms. Mueller's psychiatrist on her progress. Dr. Stevens noted that she had to move out of her home, and had become agitated, and claimed she was being abused by a wide variety of people. Several "micro psychotic" incidents occurred where there was impaired reality, poor judgment, and that she really believed she was being abused.
Respondent argues that Rule 701 of the N.C. Rules of Evidence limits the scope of testimony given by one not tendered as an expert to that "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony...." N.C. Gen.Stat. § 8C-1, Rule 701 (1992). Respondent argues that Dr. Stevens' statement in his letter of 19 January 1997 (the letter) that respondent had experienced "micro psychotic" episodes was a medical diagnosis beyond the allowable scope of testimony by a non-expert medical witness.
A careful review of the record and transcript in this case reveals that Dr. Stevens' 19 January 1997 letter was received in evidence by the trial court at the 23 January 1997 review hearing. Following the 23 January 1997 hearing, Judge Spivey orally entered an Order which was reduced to writing and signed by him on 3 February 1997. Judge Spivey's Order recited, in part, that "[t]he Court received a letter from Dr. Chad Stevens, [respondent's] psychiatrist as to her progress." There is no indication in the record that there was any objection to Judge Spivey's consideration of the letter from Dr. Stevens.
Further, Dr. Stevens identified the letter, marked as Petitioner's Exhibit 5, during his testimony at the termination hearing, and recalled that the letter was prepared by him at the request of Mr. Elliott, then counsel for respondent. Respondent objected to the introduction of the letter into evidence on the grounds that Dr. Stevens had not been qualified as an expert, to which counsel for petitioner responded that the trial court had already agreed to take judicial notice of everything in the juvenile court file. Based on the statement of counsel for petitioner the trial court allowed the letter to be introduced into evidence. However, nothing in the transcript of the proceedings below indicates that the trial court agreed to take notice of the entire juvenile file. It appears, therefore, that the trial court erroneously admitted the January 1997 letter from Dr. Stevens based on a misstatement by counsel for petitioner. We do not agree, however, that the error was prejudicial in this case.
Apparently, it is not disputed that Dr. Stevens' letter of 19 January 1997, admitted as Petitioner's Exhibit Number 5, is authentic and was admitted into evidence at the 23 January 1997 review hearing. The trial court merely summarized the contents of the letter in its termination order, as a part of its meticulous recitation of the history of the case. There is no indication, however, that the trial court relied on opinions in the letter to support its conclusion that grounds existed at the time of the termination hearing to terminate respondent's parental rights. Further, there was substantial lay and medical evidence in the record to support the findings of fact and conclusions of law made by the trial court. Therefore, even assuming the trial court erred in the admission of Dr. Stevens' 19 January 1997 letter, we cannot find that the...
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