Nolen, In re
| Decision Date | 23 December 1985 |
| Citation | 453 S.E.2d 220,117 N.C.App. 693 |
| Court | North Carolina Court of Appeals |
| Parties | In re Curtis Brown NOLEN, Born |
J. Tyrone Browder, P.A. by John L. McGrath, King, for petitioner-appellee Stokes County Department of Social Services.
Jill R. Howard, Guardian ad Litem, Rural Hill, for the minor children.
Jeffrey S. Lisson, King, for respondent-appellant Tanya K. Joyce.
Petitioner commenced this action to terminate the parental rights of respondent Tanya K. Joyce in her two minor children, Curtis Brown Nolen and Carolyn Brandi Nolen. The trial court ordered that respondent's parental rights be terminated, and respondent appeals.
Respondent's first argument on appeal is that the trial court erred in allowing the two children to testify without being sworn and without a record made of their testimony. At the hearing, the children, then ages five and seven, were unwilling to take the witness stand. The judge then allowed the children to testify in chambers with all counsel present. The proceedings in chambers were not recorded. After the children testified, recording of the hearing resumed. At the request of respondent, the court summarized for the record the children's testimony.
N.C.G.S. § 7A-289.30(a) (1989) states that the reporting of the hearing on termination "shall be as provided by G.S. 7A-198 for reporting civil trials." Respondent argues that because the children's testimony was not recorded, respondent must receive a new hearing. However, showing a violation of section 7A-198 is not enough; respondent must also show that the error was prejudicial. Miller v. Miller, 92 N.C.App. 351, 354, 374 S.E.2d 467, 469 (1988). Because respondent does not argue any error in the unrecorded testimony itself, respondent has failed to show prejudice. In re Lail, 55 N.C.App. 238, 239, 284 S.E.2d 731, 732 (1981).
Respondent next argues that it was reversible error to allow the children to testify without being sworn. However, respondent did not object to this error when given the opportunity to do so in the courtroom after the children testified. In State v. Robinson 310 N.C. 530, 540, 313 S.E.2d 571, 578 (1984), our Supreme Court held that a defendant may not argue on appeal that the trial court erred in allowing a witness to testify without being sworn, where the defendant did not object at trial. The Court noted that a timely objection would have allowed the trial judge to correct the oversight by putting the witness under oath and allowing him to redeliver his testimony. Id. We believe that this rule applies with equal force in the case at hand. Accordingly, respondent's assignment of error on this issue is overruled.
Respondent's next contention is that the trial court erred in allowing Dr. Michael McCullough, a psychologist who provided counselling services to Carolyn Brandi Nolen, to testify as to her veracity. Dr. McCullough was allowed, over objection, to answer the following question: "So do you feel that what she told you was the way she truly believed and felt?" Respondent contends that Dr. McCullough's answer to the question amounted to an expression of opinion as to Brandi's veracity. However, immediately preceding the above question, Dr. McCullough was asked, "From your background and experience with working with so many children, do you believe that Brandi has been open and honest with you particularly in the last two sessions?" He responded, "Yes." He was then asked, "Was there anything about her behavior during these last two sessions that led you to believe that she had been coached in any way to say one thing or the other?" Dr. McCullough responded, "No."
The admission of testimony over objection is ordinarily harmless error when testimony of the same import has previously been admitted without objection or is thereafter introduced without objection. In re McDonald, 72 N.C.App. 234, 237, 324 S.E.2d 847, 849 (1984), disc. review denied, 314 N.C. 115, 332 S.E.2d 490 (1985). The above colloquy shows that testimony of the same import as that objected to had been admitted without objection just before the testimony in question. Accordingly, even if the testimony objected to was erroneously admitted, any error was harmless.
Respondent's next argument is that there was insufficient evidence to support a termination of her parental rights under N.C.G.S. § 7A-289.32(3) and (4), the two grounds upon which the trial court based its decision. Section 7A-289.32(3) provides that the court may terminate parental rights upon a finding that
[t]he parent has willfully left the child in foster care for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made within 12 months in correcting those conditions which led to the removal of the child or without showing positive response within 12 months to the diligent efforts of a county Department of Social Services, a child-caring institution or licensed child-placing agency to encourage the parent to strengthen the parental relationship to the child or to make and follow through with constructive planning for the future of the child. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the child on account of their poverty.
§ 7A-289.32(3) (Cum.Supp.1994). The burden was on petitioner to prove the facts justifying termination by clear and convincing evidence. § 7A-289.32(3a); In re Bishop, 92 N.C.App. 662, 667, 375 S.E.2d 676, 680 (1989).
The Stokes County Department of Social Services (hereinafter "DSS") was first granted custody of the children on 7 August 1989. On that date, respondent had been arrested for drunk driving. The children, then ages two and three, had been in the car with respondent. The arrest was respondent's second for DWI. Respondent stated that she had drunk the beer on 7 August because she and her live-in boyfriend had had a fight. Respondent further admitted that her boyfriend physically abused her every day.
At the five day hearing, the children were returned to the physical custody of respondent. In December 1989, respondent had to leave the children with her mother because she was incarcerated for a controlled substance offense. Respondent's mother subsequently turned the children over to DSS, as she was unable to care for them. On 29 December 1989, DSS took physical custody of the children and has had custody since that date.
Respondent has entered several service agreements with DSS since the children were removed. In them, respondent agreed to enroll in and complete the STEP ONE program, to attend substance abuse counselling, to attend AA meetings regularly and provide verification of her attendance, to attend parenting classes, and to abstain from the use of alcohol. Respondent did not enroll in and complete the STEP ONE program; she attended substance abuse counselling only sporadically; she did not attend AA meetings regularly and did not provide verification of her attendance; she did not complete parenting classes; and she did not abstain from the use of alcohol. Respondent also failed to keep DSS informed of where she was living so that DSS could contact her about the children. Respondent showed up for visits with the children smelling of alcohol and appearing intoxicated. Numerous police officers have responded to disturbance calls at respondent's residence. One officer testified that in the two years preceding the hearing, she had answered between thirty and thirty-five calls at the residence and on every occasion, respondent appeared intoxicated. The most recent incident was four days before the final hearing in this matter. On that occasion, the responding officer noted that the first room of the house was extremely dirty and in disarray and that there were beer bottles in the front yard. Respondent told the officer that she had been assaulted and that she wanted to leave. Further, respondent's medical records reveal a history of alcoholism and alcohol-related injuries. Finally, respondent admitted that when she was under the influence of alcohol, the children were often neglected.
As to the trial court's findings regarding section 7A-289.32(3), respondent concedes that the children were left in foster care for more than twelve months....
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