McDonald, Matter of

• Citation: 72 N.C.App. 234,324 S.E.2d 847
• Decision Date: 15 January 1984
• Docket Number: No. 8426DC233,8426DC233
• Court: North Carolina Court of Appeals
• Parties: In the Matter of Robin Elaine McDONALD, Stacie Ray Oxendine, Sharon Michelle McDonald, Minor Children.

Page 847

324 S.E.2d 847

72 N.C.App. 234

In the Matter of Robin Elaine McDONALD, Stacie Ray Oxendine Sharon Michelle McDonald, Minor Children.

No. 8426DC233.

Court of Appeals of North Carolina.

Jan. 15, 1984.

Ruff, Bond, Cobb, Wade & McNair by Moses Luski and William H. McNair, Charlotte, for petitioner-appellee.

Ellis M. Bragg, Charlotte, for respondents-appellants.

EAGLES, Judge.

Respondents first assign error to the admission of the testimony of Betty Dibrell as to the results of Mr. McDonald's breathalyzer reading on 28 March 1983. The basis of their objection is that petitioner failed to lay a proper foundation for the introduction of these results into evidence. Robinson v. Insurance Co., 255 N.C. 669, 122 S.E.2d 801 (1961) (describing requisite foundation for admissibility of blood alcohol test). Ms. Dibrell, an employee of the Randolph Clinic, an outpatient alcoholism treatment facility, testified that she is the custodian of clinic business records. She testified on direct examination that Mr. McDonald's records showed that on 28 March 1983 he was administered a breathalyzer test at the clinic which revealed a blood alcohol content of .08. She stated that she did not administer the test.

We need not consider whether a proper foundation was laid for Ms. Dibrell's testimony, nor whether it falls within the business records exception to the hearsay rule, as respondents waived their right to object to the admission of this evidence. On cross-examination, counsel for appellants also questioned Ms. Dibrell concerning the breathalyzer results for Mrs. McDonald contained in clinic records. Respondents elicited the response that the results of two tests administered at the clinic on separate occasions showed blood alcohol readings of .00. They cannot now complain of the lack of a proper foundation for evidence elicited for their benefit which was obtained from the same source. Furthermore, any error in the admission of the evidence was rendered harmless by Mr. McDonald's own testimony, during which without objection he admitted inter alia that he was an alcoholic and that he had been drinking heavily only days before the test. We note the "well-recognized rule in this jurisdiction that the admission of testimony over objection is ordinarily harmless error when testimony of the same import had previously been admitted without objection or is thereafter introduced without objection." State v. Jones, 287 N.C. 84, 99, 214 S.E.2d 24, 35 (1975).

Appellants also allege that the trial court should have refused to admit the testimony of Ms. Dibrell that the clinic records did not indicate that Mr. and Mrs. McDonald were ever refused treatment for non-payment of their bills, because the testimony was an impermissible expression of opinion. We disagree. According to the business records exception to the hearsay rule, see generally 1 Stansbury's N.C. Evidence § 155 (2d rev. ed. 1982), when relevant, testimony as to what business records do not show is admissible. See State v. Rogers, 30 N.C.App. 298, 226 S.E.2d 829, review denied, 290 N.C. 781, 229 S.E.2d 35 (1976). Furthermore, other evidence demonstrates that respondents continued to receive treatment at the clinic despite a failure to pay fees, or that in some instances, treatment was terminated for other reasons. This assignment of error is overruled.

Appellants next argue that the trial court erred in admitting the testimony of Dr. J. Thomas Stack that the appellants could not function effectively as parents-custodians of their children. Dr. Stack was stipulated to be an expert in clinical psychology. The gist of his testimony was that, in his opinion, the appellants could not function effectively as the custodians to their own children or even to children who did not exhibit the problems that their children exhibited, that if the court should find that appellants had abused alcohol in the months before the trial, this fact would reinforce his opinion, and that even if appellants ceased consuming alcohol, this factor would not change his opinion. The basis for appellants' objection is that Dr. Stack's opinion testimony embraced the very issues to be decided by the trier of fact: whether the children were neglected, whether appellants were capable of improving the parent-child relationship, and whether it was in the best interests of the children that appellants' parental rights be terminated.

We observe that Dr. Stack's testimony did not invade the province of the finder of fact. He expressed no opinion as to whether the children were neglected, and specifically denied opining whether it was in the children's best interests that the respondents' parental rights be terminated. Whether appellants were capable of improving the parent-child relationship is not an ultimate issue in termination of parental rights cases as respondents suggest. Dr. Stack's testimony only contained an opinion as to one of the factors a trial judge must consider in determining the child's best interest in a termination case, that is, parenting ability.

Furthermore, the prohibition against opinion testimony as to ultimate issues has been significantly eroded, particularly in regard to expert opinion testimony. Whether the expert testimony invaded the province of the finder of fact has been rejected as the proper inquiry. Rather, the test is "whether the opinion expressed is really one based on the special expertise of the expert, that is, whether the witness because of his expertise is in a better position to have an opinion on the subject then is the trier of fact." State v. Wilkerson, 295 N.C. 559, 568-69, 247 S.E.2d 905, 911 (1978). See generally, 1 Stansbury's N.C. Evidence § 126 (2d rev. ed. 1982) (noting that G.S. 8C-1, Rule 704, effective 1 July 1984, abolishes the rule that opinion testimony, lay or expert, is inadmissible because it invades the province of the trier of fact). Applying the proper test to the facts before us, it is clear Dr. Stack's testimony was properly admitted. Dr. Stack was an expert in clinical psychology who had personally conducted psychological examinations of the children and also reviewed the reports concerning prior examinations of the children by another child psychologist. By virtue of his expertise and the information before him, Dr. Stack was better qualified than the trial court to form an opinion as to the respondents' parenting abilities. This assignment of error is overruled.

By their fourth assignment of error, appellants contend that it was reversible error for the trial court to find that Mrs. McDonald had neglected each of her three minor children pursuant to G.S. 7A-289.32(2). (Mr. McDonald's parental rights were terminated on grounds other than neglect.) The basis for appellants' contention is that in finding neglect the trial court relied exclusively on the 9 June 1981 order of Judge William G. Jones that each of the minor children was a neglected child.

The recent case of In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984), modifying an earlier decision of this Court, governs the issue of the effect of a prior order determining neglect on a subsequent proceeding to terminate parental rights for neglect. The Supreme Court framed the controlling rule thus: "[E]vidence of neglect by a parent prior to losing custody of a child--including an adjudication of such neglect--is admissible in subsequent proceedings to terminate parental rights." Id. at 715, 319 S.E.2d at 232. Clearly, it was not improper for the trial court to consider Judge Jones' order, and incorporate that prior order into the orders terminating respondents' parental rights.

The appellants' assignment of error is not only that Judge Matus relied on the prior order, but that he relied exclusively upon that prior order in concluding that Mrs. McDonald had neglected her children. Again, the controlling law is found in Ballard. Since the "determinative factors" in termination proceedings are "the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding," id. at 715, 319 S.E.2d at 232 (emphasis in original), the trial court must consider any evidence of changed conditions after the child was removed from parental custody in light of evidence of prior neglect and the probability of a repetition of neglect. Id.

The trial court did consider other evidence. The trial court stated in its orders that it was basing its finding of neglect not only upon the prior order but also upon other evidence received in the termination hearing, and our examination of the record satisfies us that the trial court did not confine its consideration to the evidence of neglect contained in the 9 June 1981 order. In each of the three orders terminating parental rights, there is a finding incorporating Judge Jones' prior order, specifically tracking the language in the prior order that "on April 28, 1981, Mrs. McDonald was under the influence of alcoholic beverages to such an extent that she was staggering that she had a gasoline can which contained gasoline and a lawn mower in her home, and she was smoking a cigarette in close proximity to these materials." The orders contain additional findings that before the removal of the children from her custody on 28 April 1981, respondent mother had been consuming alcoholic beverages to the extent that she failed to provide adequate care and support for her children, and that she permitted them to live in an environment injurious to their health and welfare, and that she has continued to consume alcoholic beverages on a regular basis since the children were removed from her home. Further, the orders included a finding that on some occasions the consumption of alcoholic beverages has led to disruptive and combative behavior on the part of the respondent mother.

The foregoing evidence supports a finding of neglect pursuant to G.S. 7A-289.32(2). The findings comport with the directive to...