In re Faircloth

• Decision Date: 04 April 2000
• Docket Number: No. COA99-505.,COA99-505.
• Citation: 527 S.E.2d 679,137 NC App. 311
• Parties: In the Matter of Dakota FAIRCLOTH, Amanda Faircloth, Margaret Faircloth and James Faircloth, Jr., minor children.
• Court: North Carolina Court of Appeals

527 S.E.2d 679

137 NC App. 311

In the Matter of Dakota FAIRCLOTH, Amanda Faircloth, Margaret Faircloth and James Faircloth, Jr., minor children.

No. COA99-505.

Court of Appeals of North Carolina.

April 4, 2000.

Cumberland County Department of Social Services, by David Kennedy, Fayetteville, for petitioner-appellee.

Carmen J. Battle and William E. Brown, Fayetteville, for respondent-appellant James D. Faircloth.

MARTIN, Judge.

On 4 August 1997, the Cumberland County Department of Social Services (CCDSS) filed a juvenile petition alleging that James David Faircloth (d.o.b. 4 June 1987), Dakota Faircloth (d.o.b. 22 September 1990), Amanda Faircloth (d.o.b. 7 August 1992) and Margaret Faircloth (d.o.b. 26 January 1995) were abused and neglected children. The allegations arose as a result of a report made 30 July 1997 by the children's babysitter, who observed the presence of bruises on Amanda. The children were placed in the custody of CCDSS, and such custody was continued by a series of orders until an adjudicatory hearing was commenced on 15 December 1998.

At the adjudicatory hearing, CCDSS presented evidence from the CCDSS social worker, two physicians and a psychologist. Their testimony included hearsay evidence of statements made by the children, to which respondent father did not object. Upon the conclusion of the CCDSS evidence, respondent father sought to call the three older children as witnesses and forecast that they would testify that the abuse was perpetrated by someone other than defendant. Upon objection by CCDSS and by the children's mother, the court heard testimony from Judith Hill, a therapist for Dakota and Amanda, and Kim Herring, a therapist for James, Jr. The court then made the following findings and conclusions:

On the respondent father, James Faircloth's, calling as a witness the minor child Dakota Faircloth, this being opposed by the petitioner, by the Guardian ad Litem and by respondent Tisha Faircloth, the court having heard evidence and arguments of counsel, makes the following findings of fact based upon clear, cogent and convincing evidence.

That Dakota Faircloth's date of birth is September 22, 1990; that he has been in the custody of the Department of Social Services since July of 1997; that during that period of time he has been undergoing continuous therapy; that he is currently in a therapeutic group home.

That according to Judith Hill, a clinical social worker and currently the clinical therapist for Dakota, it would be extremely detrimental to the mental well-being of [Dakota] to face the respondent James D. Faircloth.

That according to his clinical social worker, it would be extremely detrimental to Dakota's well-being for him to be questioned in any setting as to these matters.

Based upon the foregoing, the court finds as a matter of law that Dakota Faircloth is unavailable and unable to testify at this hearing due to his current mental status and the harm to him which would occur were he to be forced to testify. The court reserves the right to add additional findings of fact in its final order as to this.

As to Amanda Faircloth, the court finds that Amanda Faircloth's date of birth is August 7, 1992; that she has been in the custody of the Department of Social Services since July of 1997; that she is currently in a therapeutic foster home and has been receiving psychiatric and psychological treatment since being placed in DSS custody, and is still undergoing therapeutic treatment.

That she has been admitted to a psychiatric hospital twice since being in DSS custody; that in the recent past, she has begun urinating and defecating at inappropriate times and places, an activity which she had done at an earlier time, which she has now regressed to doing again; in addition, she has become physically aggressive.

That according to her clinical therapist, Judith Hill, it would be extremely detrimental to the mental health and well-being of Amanda if she were forced to testify in any setting concerning the matters involved in this case.

Based on the foregoing, the court concludes as a matter of law that Amanda Faircloth is unavailable and unable to testify at this hearing due to her existing mental health and the detriment which would be done her were she called upon to testify.

As to James David Faircloth, Jr., the court finds that his date of birth is June 4, 1987; that he has been in the custody of the Department of Social Services since July of 1997; that he has been receiving psychiatric and psychological treatment and therapy since being in DSS custody.

That according to this therapist, Kimberly Herring, he has expressed great fear of his father and it would be detrimental for James to have to face his father; that due to the nature of this proceeding and the wishes of James to be back with his mother, the therapist is of the opinion that any testimony he might give in this case could be highly suspect and unreliable and based on James' self-perceived needs and wants rather than the truth; that Ms. Herring is of the belief that James being called upon to testify in this proceeding under any setting would be counter-productive to his mental health and well-being and to his ongoing therapy.

The court concludes that James David Faircloth, Jr., is unavailable and unable to testify in this hearing because of his now-existing mental health and the detriment that would be done to him were he forced to testify in this proceeding.

As to all three orders, the court reserves the right to make additional findings of fact prior to signing the order.

Respondent father then offered evidence through other witnesses tending to show that the children had reported to others that they had been abused by their babysitter, rather than by respondent father.

At the conclusion of the hearing, the trial court found that each of the children had been abused in various respects, had been neglected, and adjudicated them abused and neglected children. Respondent appeals from the final adjudicatory and dispositional order.

Respondent father first assigns error to the admission of opinion testimony by Judith Hill and Kimberly Herring as to the effect testifying would have on the minor children. He contends that neither witness was competent to provide such testimony.

G.S. § 8C-1, Rule 702(a) provides: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.

Whether a witness has the requisite knowledge or training to testify as an expert is within the exclusive province of the trial court, and its decision will not be overturned absent an abuse of discretion. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984); Robinson v. Seaboard System Railroad, 87 N.C.App. 512, 361 S.E.2d 909 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988). "An expert need not have had experience in the very subject at issue, ... [i]t is enough that through study or experience the expert is better qualified than the fact-finder to render the opinion regarding the particular subject." In re Chasse, 116 N.C.App. 52, 59, 446 S.E.2d 855, 859 (1994) (citations omitted).

Judith Hill testified that she is a clinical social worker employed by the Cumberland County Mental Health Center and had been assigned as a therapist for Dakota and Amanda Faircloth for approximately seven months. She has bachelor's degrees in sociology and in social work, a master's degree in social work, and is licensed as a therapist. She has training and experience in determining what kinds of external stimuli affect the behavior of children. Kimberly Herring testified that she had been seeing James Faircloth, Jr., for nearly a year. Ms. Herring is a licensed psychological associate and has a master's degree in counseling. Both testified extensively as to their observations of the children and the children's behavioral histories. Both witnesses, through their education, training, experience, and interaction as therapists for the children were better qualified than the fact-finder to have an opinion upon the effect that giving testimony would have on the children's behavioral, mental and emotional conditions.

Moreover, preliminary questions concerning the qualification of a person to be a witness are determined by the trial court, which is not bound by the rules of evidence in making such a determination. N.C. Gen. Stat. § 8C-1, Rule 104(a). In determining whether a person is competent to testify, the court may consider any relevant information which may come to its attention. In re Will of Leonard, 82 N.C.App. 646, 347 S.E.2d 478 (1986). Therefore, to the extent the testimony of Ms. Hill and Ms. Herring...