Opinion
No. COA10-241
Filed 15 June 2010 This case not for publication
Appeal by Respondent from adjudication and disposition orders entered 19 November 2009 by Judge Charles Bullock in Johnston County District Court. Heard in the Court of Appeals 25 May 2010.
Holland O'Connor, P.L.L.C., by Jennifer S. O'Connor for Johnston County Department of Social Services, Petitioner-Appellee. Pamela Newell, for Guardian ad Litem Respondent-Appellee.
Windy H. Rose for, Respondent-Appellant Mother.
Johnston County Nos. 09 J 13-18.
Respondent appeals from adjudication and disposition orders adjudicating her children neglected and dependent and ceasing reunification efforts. For the following reasons, we affirm.
Johnston County Department of Social Services (DSS) has been involved with Respondent since 2005. In January 2009, DSS filed juvenile petitions alleging that Respondent's children Donna, age 16; Valerie, age 11; Debbie, age 9; Rick, age 5; Kari, age 3; and Chad, age 19 months, were neglected and dependent. The children were removed from the home and placed in foster care based upon Respondent's mental health and her inability to provide a clean and safe home and proper hygiene for her children. On 18 March 2009, the trial court adjudicated the children dependent pursuant to a consent agreement. The children were returned to Respondent's custody and Respondent was ordered to comply with her case plan, which included attending parenting classes, obtaining a psychological evaluation, attending her children's therapeutic and medical appointments, and maintaining appropriate and stable housing.
Pseudonyms are used to protect the privacy of the minor children.
In June 2009, the trial court held a review hearing at which the court reminded Respondent that she needed to cooperate with DSS. On 20 July 2009, a DSS social worker made an unannounced home visit to Respondent's home and found the home in disarray. Four days later, the social worker returned to Respondent's home. The social worker found that Respondent had cleaned the residence, meeting minimal standards of care.
On 17 August 2009, Officer Tomeka Moore of the Selma Police Department went to Respondent's home to serve her with an outstanding warrant for shoplifting charge. Upon Respondent's arrival, Officer Moore found the home to be in disarray. DSS was informed of Respondent's arrest. Officer Moore stayed at the home with the children until Respondent returned home with the social worker. The social worker found the home to be filthy, presenting a safety hazard to the children. Based upon the unsanitary conditions of the home and Respondent's arrest, DSS filed new juvenile petitions alleging that Respondent's children were neglected and dependent juveniles. The children were removed from the home on 17 August 2009 and placed in foster care.
The trial court held adjudicatory and disposition hearings on 21 October 2009. DSS presented testimony from the DSS social worker Pam Flowers and a Selma Police Officer. Respondent testified on her own behalf. Respondent also presented testimony from her three oldest children, Donna, Valerie and Debbie, who testified in-chambers. By order filed 19 November 2009, the trial court adjudicated the children neglected and dependent. In its disposition order, the trial court continued custody with DSS and released DSS from further efforts toward reunification. From adjudicatory and disposition orders, Respondent appeals.
We first address the motion to dismiss filed by Guardian ad Litem for the juvenile, seeking to dismiss Respondent's appeal for failure to comply by Rule 3.1 of our Rules of Appellate Procedure. Respondent filed a petition for writ of certiorari in response to the motion to dismiss.
North Carolina Rules of Appellate Procedure 3.1 provides:
Any party entitled by law to appeal from a trial court judgment or order rendered in a case involving termination of parental rights and issues of juvenile dependency or juvenile abuse and/or neglect, appealable pursuant to N.C.G.S. § 7B-1001, may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties in the time and manner set out in Chapter 7B of the General Statutes of North Carolina. Trial counsel or an appellant not represented by counsel shall be responsible for filing and serving the notice of appeal in the time and manner required. If the appellant is represented by counsel, both the trial counsel and appellant must sign the notice of appeal, and the appellant shall cooperate with counsel throughout the appeal. All such appeals shall comply with the provisions set out in subsection (b) of this rule and, except as hereinafter provided by this rule, all other existing Rules of Appellate Procedure shall remain applicable.
N.C.R. App. P. 3.1(a). "The signature requirement of Rule [3.1] provides record evidence that the appellant desired to pursue the appeal, understood the nature of the appeal, and cooperated with counsel in filing the notice of appeal." In re I.T.P-L., 194 N.C. App. 453, 459, 670 S.E.2d 282, 285 (2008), disc. review denied, 363 N.C. 581, 681 S.E.2d 783 (2009); see Hummer v. Pulley, Watson, King Lischer, P.A., 140 N.C. App. 270, 277, 536 S.E.2d 349, 353 (2000) (noting that defendants' counsel's signature on a notice of appeal from an order granting sanctions indicated participation in the appeal).
Respondent's trial attorney filed a notice of appeal without Respondent's signature on 21 December 2009, within the statutory period. Respondent filed another notice of appeal bearing her signature on 15 January 2010, outside the thirty-day deadline imposed by N.C. Gen. Stat. § 7B-1001(b). As proper and timely notice of appeal is jurisdictional, we must dismiss Respondent's appeal. In re A.L., 166 N.C. App. 276, 601 S.E.2d 538 (2004). Nevertheless, we exercise our discretion pursuant to N.C.R. App. P. 21(a)(1) and allow Respondent's petition for writ of certiorari to permit consideration of her appeal on the merits. See I.T.P-L., 194 N.C. App. at 460, 670 S.E.2d at 285. ("[A]s the timely, albeit incomplete, notices of appeal together with the amended notices of appeal provide record evidence that Respondents desired to pursue the appeal, understood the nature of the appeal, and cooperated with counsel in filing the notice of appeal, we exercise our discretion pursuant to N.C.R. App. P. 21(a)(1) and allow Respondents' petitions for writ of certiorari[.]"). Accordingly, we now turn to the merits of Respondent's appeal.
On appeal, Respondent contends the adjudicatory and dispositional hearings were held in such a manner as to violate her due process rights. Respondent asserts: (1) she was denied her right to confront witnesses; (2) denied her right to call rebuttal witness; and (3) denied her right for an interpreter.
Respondent's first two arguments concern the testimony of her daughter Debbie at the adjudication hearing. Debbie testified on Respondent's behalf after her sisters Donna and Valerie. When Respondent's counsel ended her re-direct examination, Debbie stated, "I wanted something to say but I forgot it." Debbie was told to take her time and that if she remembered, she could write a letter and give it to Respondent's attorney. Debbie then stated that she did not want her two older sisters to find out what she was going to write because they would tell their mother. Afterwards, Debbie wrote a letter in which she described incidents involving her mother. Debbie read the contents of the letter into evidence. The trial court then stated:
THE COURT: Okay. All right. Well, let me tell you something, [Debbie]. What you have told us here today is going to stay in this room. All right? No one else is going to know about. I'm ordering all parties that this information is not to be divulged to anyone. If it is divulged and it comes to my attention, I promise you this, the party that divulges it will not be happy. All right? Does everyone understand that?
Afterwards, the trial court informed Debbie "because you told me some new stuff, I've got to give the attorneys a chance to ask you some questions about it[.]" Respondent's attorney then questioned Debbie regarding the contents of her letter. The DSS attorney and GAL attorney elected not to question Debbie further. Once Debbie was excused as a witness, Respondent's attorney asked the trial court to recall the two older sisters so that she could ask them about the incidents described in Debbie's letter. After hearing arguments from counsel, the trial court denied the request by stating:
THE COURT: That — that you — we're back here in chambers and you called these witnesses. I've given everyone ample opportunity to examine these witnesses with no interruptions and call them in any order that you saw fit. And so your motion to recall those witnesses is denied. I'm — I've heard the evidence from them. I've heard their testimony at length. They were given the opportunity to testify.
So, I'm — I think you — you — they were your witnesses and you called them and you examined them the way you wanted to. So, that motion is denied.
Respondent first asserts the trial court violated her right to confront Debbie by ordering Respondent's attorney not to disclose Debbie's testimony. We disagree.
Although there is no right to confront witnesses in civil proceedings, see In re D.R., 172 N.C. App. 300, 303, 616 S.E.2d 300, 303 (2005), N.C. Gen. Stat. § 7B-802 generally provides that "[i]n the adjudicatory hearing, the court shall protect the rights of the juvenile and the juvenile's parent to assure due process of law." N.C. Gen. Stat. § 7B-802 (2009). This Court has recognized "the troubling aspects of children testifying in court, particularly where a child is called upon to testify against a parent or the perpetrator of sexual abuse." In re Faircloth, 137 N.C. App. 311, 318, 527 S.E.2d 679, 683 (2000). In determining whether a parent's interest is sufficiently protected when a trial court allows a child to testify in closed chambers outside the presence of a parent, this Court has considered factors such as whether: (1) parent's counsel was present; (2) parent's counsel had an opportunity to cross-examine the child; (3) the excluded parent had the ability to hear or review the testimony; and (4) the excluded parent had the ability to communicate with counsel. See e.g., Cox v. Cox, 133 N.C. App. 221, 227, 515 S.E.2d 61, 66 (1999) (holding that it was error for the court to question the children outside the presence of the mother, without her consent, but the error was not prejudicial because the parties' attorneys were present.); In re Barkley, 61 N.C. App. 267, 270, 300 S.E.2d 713, 715-16 (1983) (upholding the trial court's exclusion of the parent where each party's counsel was allowed "to question [the child] themselves, in the courtroom, with the questions and answers being recorded."); see also In re J.B., 172 N.C. App. 1, 22, 616 S.E.2d 264, 277 (2005) (holding that the parent suffered no risk of prejudice where "trial court employed various procedures to allow respondent to view and hear [child's] testimony as well as communicate with her counsel" through the use of a television monitor in an adjacent room with telephonic access to respondent's attorneys).
Here, the trial court preserved the adversarial nature of the hearing in accordance with Cox, Barkley and J.B. Respondent's counsel was present during Debbie's in-chambers testimony and was afforded the opportunity to question Debbie. Further, the trial court allowed Respondent's counsel to question Debbie after Debbie read her letter into evidence. Respondent has failed to produce any evidence of prejudice. Accordingly, this argument is without merit.
Respondent also asserts the trial court erred when it denied her request to recall Donna and Valerie as rebuttal witnesses. We disagree.
The standard of review of the trial court's ruling upon admissibility of testimony by a rebuttal witness is abuse of discretion. Williams v. CSX Transp., Inc., 176 N.C. App. 330, 338, 626 S.E.2d 716, 724 (2006). "In determining relevant rebuttal evidence, we grant the trial court great deference, and we do not disturb its rulings absent an abuse of discretion and a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision." Id. (citation and quotation marks omitted).
Here, it appears the trial court denied Respondent's request to recall Donna and Valerie on the basis of Rule 403, that the probative value of the evidence was "substantially outweighed . . . by considerations of undue delay, . . . or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403 (2009). The trial court noted that it was Respondent who called her three oldest daughters to testify on her behalf at the adjudication hearing. The transcript shows the trial court considered the testimony from Donna and Valerie, whose testimony supported their mother, and concluded anymore testimony would be needlessly cumulative and time-wasting. Respondent has failed to show that the trial court made an arbitrary or unreasonable decision. Accordingly, we find no error.
In her final argument, Respondent contends the trial court erred in denying her request for an interpreter. During the dispositional hearing, DSS called Respondent's live-in boyfriend, Carlos Moran, to testify. Before questioning Moran, DSS asked Moran if he understood English. Moran responded, "[a] little bit." Moran further testified that he spoke "Spanish and a little English" and that he spoke in English to Respondent. DSS then questioned Moran as follows:
Q. When are you getting married?
A. Still no — no [indecipherable] date, I don't know.
Q. You don't know the date.
MS. HUNTSBERRY: Your Honor, I'd like to ask for an interpreter.
THE COURT: Well, so far he's answered all her questions appropriate.
MS. O'CONNOR: He's answering my questions.
THE COURT: I mean if there's a situation, I — I — I will try to address it but right — right now has any — I haven't noticed that he's had any problem answering her questions. So, go ahead, Ms. O'Connor.
. . . .
Q. [] Have you ever locked [respondent-mother] out of the house?
A. What? I'm sorry.
Q. Have you ever locked the door so she can't get back inside the house?
A. Sometimes yes, sometimes no [indecipherable].
MS. HUNTSBERRY: Your Honor, once again, I ask for an interpreter. I think it's fairly clear from his answer that he doesn't understand the question about locked out of the house when he starts talking about sometimes I'm at work and I lock the door.
THE COURT: Well —
. . . .
MS. HUNTSBERRY: I mean just because he can answer a question doesn't mean he's necessarily answering the question that's been asked. That's — I — I mean I think there's — you know, just because he's an individual who's trying to make us happy and answer our questions doesn't necessarily mean — I think particularly with that last question you see it.
THE COURT: Up until then I think he's answered every question right on point and I think right then he may have been confused with it but I think he's answered every question appropriately. His response, I'll be honest with you I didn't quite get myself and we're going to leave it there. Your motion for an interpreter is denied. Go ahead.
A court has the inherent authority to appoint an interpreter when one is necessary. Wise v. Short, 181 N.C. 320, 322, 107 S.E. 134, 136 (1921); State v. McLellan, 56 N.C. App. 101, 102, 286 S.E.2d 873, 874 (1982). "[A]n interpreter should not be appointed unless necessary. Such necessity arises when the witness's normal method of communication is unintelligible to those in the courtroom." Id. at 102, 286 S.E. 2d at 875. The decision to appoint an interpreter rests within the discretion of the trial court and will not be reviewed absent a showing of abuse of discretion. Id.
Here, we conclude that the trial court was properly within its discretion in denying Respondent's request to appoint an interpreter. Moran testified that he spoke "Spanish and a little English; that he understood English "[a] little bit;" and that he spoke to Respondent in English. This evidence, in addition to Moran's answers upon questioning by DSS, supported the trial court's conclusion that Moran had a sufficient command of the English language as to not need an interpreter. Respondent has failed to show the trial court abused its discretion by failing to appoint an interpreter.
Affirmed.
Chief Judge MARTIN and Judge HUNTER, Robert C. concur.
Report per Rule 30(e).