In re R.D.
| Decision Date | 18 December 2020 |
| Docket Number | No. 268A19,268A19 |
| Court | North Carolina Supreme Court |
| Parties | In the MATTER OF: R.D. |
Thurman, Wilson, Boutwell & Galvin, P.A., by W. David Thurman, Charlotte, and Thomas J. Thurman, for petitioner-appellant Bethany Christian Services.
Wendy C. Sotolongo, Parent Defender, by J. Lee Gilliam, Assistant Parent Defender, for respondent-appellee father.
In this case, we address several issues relating to the manner in which dispositional hearings in termination of parental rights cases are conducted and the factors that a trial court may properly consider in making a determination as to whether termination is in the best interests of the juvenile. For the reasons set out below, we affirm in part and vacate and remand in part for the entry of a new dispositional order.
This case involves a private termination of parental rights proceeding initiated by petitioner Bethany Christian Services (BCS), a private adoption agency, against the father (respondent) of the juvenile. The minor child "Ryan"1 was born in October 2017 to respondent and "Brittany." Respondent and Brittany met at school in 2016 when they were 15 and 14 years of age, respectively. The two were family friends and lived in the same neighborhood. In January 2017, respondent and Brittany began a sexual relationship that lasted until March 2017.
Brittany discovered that she was pregnant in March 2017. Later that month, respondent blocked Brittany from contacting him on social media—the primary means that the two had used to communicate with each other. The two offered differing accounts in their testimony as to why this occurred. Brittany testified that respondent blocked her immediately after she informed him of the pregnancy, but respondent testified that he did so because "[s]he was becoming annoying."
Brittany changed schools while she was pregnant, and respondent's family moved away from Brittany's neighborhood. Respondent did not see Brittany over the summer of 2017, and, according to respondent, no discussion took place between them during that time as to whether she might be pregnant.
Brittany gave birth to Ryan in October 2017 in Mecklenburg County. The day after Ryan's birth, Brittany signed a document relinquishing her parental rights over Ryan to BCS and also signed an affidavit naming respondent as the father of Ryan. Brittany selected Jason and Demi Dowdy as the prospective adoptive parents for Ryan, and Ryan was placed with the Dowdys on 1 November 2017. Ryan has lived exclusively with the Dowdys since that time. Following Ryan's placement with the Dowdys, BCS attempted to contact respondent by sending letters to the address listed in Brittany's affidavit. However, Brittany had mistakenly written down the wrong house number when listing respondent's address, and respondent never received the letters.
Respondent testified that he was not aware of Brittany's pregnancy or the birth of Ryan until 2018. He stated that in January of 2018 he heard rumors at school that Brittany had given birth, and respondent's sister testified that she had seen a photo of Brittany with Ryan on social media. Nevertheless, respondent did not take any steps to investigate whether he might be the father of Brittany's child and did not make any attempt to contact Brittany until after he was served with BCS's termination petition several months later.
BCS filed its petition to terminate respondent's parental rights on 21 November 2017, alleging that respondent had neglected Ryan under N.C.G.S. § 7B-1111(a)(1) and had failed to establish paternity under N.C.G.S. § 7B-1111(a)(5). After several unsuccessful efforts to locate respondent both by mail and via the internet, BCS finally served respondent at his new address on 6 March 2018. After receiving the petition, respondent's mother paid for a paternity test. Upon confirming that respondent was, in fact, the father of Ryan, respondent's mother began the process of challenging BCS's custody of Ryan.
At a pretrial hearing on 30 May 2018, the trial court appointed Rhonda Hitchens—a local attorney—to serve as the guardian ad litem (GAL) for Ryan in the termination proceeding. The adjudication stage of the termination proceeding was held on 24 August 2018. During the adjudication stage, the trial court dismissed the ground of neglect but found the existence of a ground for termination under N.C.G.S. § 7B-1111(a)(5) due to respondent's failure to establish paternity.
The dispositional stage of the termination proceeding was subsequently held over the course of two dates—31 October 2018 and 9 January 2019. During the dispositional hearing, the trial court directed Hitchens to take the witness stand in order to testify about the GAL's report she had prepared. The GAL's report contained summaries of interviews with twenty individuals connected with the case, an assessment of Ryan's needs and interests, and Hitchens’ ultimate recommendation that respondent's parental rights not be terminated.
Respondent objected to Hitchens being called as a witness on the ground that allowing her to testify about her report would create a conflict of interest by requiring her to act as both a lawyer and witness in violation of Rule 3.7 of the North Carolina Rules of Professional Conduct.2 In response, BCS argued that it would not be improper for Hitchens to testify and that BCS should have the right to cross-examine Hitchens about the contents of her report.
The trial court ultimately presented Hitchens with two options—either to (1) testify as a witness and withdraw as Ryan's attorney advocate; or (2) remain as his attorney advocate and submit her written report to the trial court without testifying. Hitchens chose the second option, and her report was admitted into evidence without her testimony. BCS objected to the admission of Hitchens’ report on the grounds that the report presented an improper expert opinion on the ultimate issue of whether termination would be in Ryan's best interests and that it had been denied its right to cross-examine her. The trial court overruled this objection and also denied BCS's request to present an offer of proof regarding the testimony Hitchens would have given had she testified.
At the conclusion of the hearing, the trial court determined that termination of respondent's parental rights was not in Ryan's best interests. The trial court entered a written order dismissing BCS's petition to terminate parental rights on 6 March 2019. BCS appealed to this Court pursuant to N.C.G.S. § 7B-1001(a1)(1).
Our Juvenile Code provides for a two-step process for the termination of parental rights—an adjudication stage and a dispositional stage. N.C.G.S. §§ 7B-1109, -1110 (2019). At the adjudication stage, the petitioner bears the burden of proving by clear, cogent, and convincing evidence that one or more grounds for termination exist under N.C.G.S. § 7B-1111(a). N.C.G.S. § 7B-1109(e), (f). If the trial court finds the existence of one or more grounds to terminate the respondent's parental rights, the matter proceeds to the dispositional stage where the trial court must determine whether terminating the parent's rights is in the juvenile's best interests. N.C.G.S. § 7B-1110(a).
"We review a trial court's adjudication under N.C.G.S. § 7B-1111 ‘to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law.’ " In re E.H.P. , 372 N.C. 388, 392, 831 S.E.2d 49 (2019) (quoting In re Montgomery , 311 N.C. 101, 111, 316 S.E.2d 246 (1984) ). With regard to the trial court's assessment of a juvenile's best interests at the dispositional stage, however, we review that decision "solely for abuse of discretion." In re A.U.D. , 373 N.C. 3, 6, 832 S.E.2d 698 (2019). "[A]buse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." Id. at 6–7, 832 S.E.2d 698 (alteration in original) (quoting In re T.L.H. , 368 N.C. 101, 107, 772 S.E.2d 451 (2015) ).
BCS raises a number of arguments on appeal, which essentially raise two primary issues. First, BCS contends that the trial court's admission of the GAL's report during the dispositional stage of the termination proceeding without allowing Hitchens to be cross-examined about the report constituted an abuse of discretion. Second, BCS asserts that the trial court's written order contained key findings of fact that lacked evidentiary support in the record. We address each argument in turn.
BCS initially argues that the trial court should not have admitted the GAL's report into evidence during the dispositional stage without affording its counsel the opportunity to cross-examine Hitchens about the contents of the report. In order to fully analyze this issue, it is necessary to review the legal framework governing the role of the GAL in termination of parental rights proceedings. Our Juvenile Code provides for the appointment of a GAL in a termination proceeding as follows:
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