In re A.H., 250 N.C. App. 546 (2016)


Facts: Respondent mother subpoenaed her 13-year old son, who suffered from significant mental health issues and who was the subject of the action, to appear and testify at the termination of parental rights (TPR) hearing. The child’s GAL filed a motion to quash. At the hearing on the motion to quash, respondent mother would not specify whether the subpoena was for testimony at the adjudicatory hearing, the dispositional hearing, or both. Respondent mother and the child’s therapist testified at the hearing on the motion to quash. Respondent mother testified to what she thought her child would testify to, including his experience living with her versus living in foster care, and that she understood his testimony could be taken remotely, in chambers, or outside of the courtroom. The child’s therapist testified that the child’s testifying could result in emotional or behavioral regression and increased anxiety. The court granted the motion to quash. At a later hearing, the court terminated respondent mother’s parental rights. Respondent mother appealed the orders quashing the subpoena and terminating her parental rights (TPR), arguing that the court abused its discretion. The appeal of the TPR focused on the dispositional stage, where the court concluded the TPR was in the child’s best interests. Based on the mother’s arguments on appeal, the appellate court limited its analysis to the dispositional hearing only.

The standard of review for a court’s evidentiary decision is abuse of discretion. The order quashing the subpoena was not an abuse of discretion; it was based on the court’s conclusion that compelling the child to testify would be unreasonable and oppressive [G.S. 1A-1, rule 45(c)(3) and (5)] and that the testimony offered limited probative value and would be detrimental to the child’s well-being. The court further concluded the child’s best interests is the paramount concern. The conclusions were based on the court’s findings that included the child had little contact with his mother, the child was agitated for days after speaking with his mother about her wanting him to testify, and that he would likely experience significant emotional distress and regression. These conclusions and findings demonstrate that the court considered the relevancy of the child’s testimony  -- for example, the lack of probative value of the child’s testimony and the G.S. 7B-1110(a) best interests of the child factor addressing the bond between the parent and child. The court’s balancing of the relevance of the child’s testimony and the detrimental affect it would have on the child met the purpose of the Juvenile Code to assure fairness and equality and provide the mother with a meaningful opportunity to participate in the hearing.

Quoting State v. Simpson, 314 N.C. 359, 370 (1985), “in order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record…[T]he essential content or substance of the witness’ testimony must be shown before we can ascertain whether prejudicial error occurred.”

The exclusion of the mother’s testimony of what her child would have testified to as an offer of proof was not an abuse of discretion because the essential substance of the child’s testimony the mother sought to elicit had previously been made known to the court in the hearing on the motion to quash. At that hearing, respondent mother represented to the court a “specific forecast” of her son’s testimony. Citing State v. Martin, ___ N.C. App. ___, 774 S.E.2d 330, 333 (2015), a “specific forecast” typically includes

  • the substance of the testimony,
  • the basis of the witness’ knowledge,
  • the basis of the attorney’s knowledge of the testimony, and
  • the attorney’s purpose for offering it.


Respondent mother asserted (1) her son would testify to his life with her, his life in foster care, the difference between them, his experience being institutionalized and hospitalized while in DSS custody, and noncompliance with his IEP; (2) that the basis of her son’s knowledge was his own personal experience; (3) her own knowledge of her son’s testimony; and (4) the purpose for offering the testimony was to have her son present his wants and needs to the court. Because respondent mother provided a specific forecast of her son’s testimony, the informal offer of proof was sufficient to establish the essential element or substance of the excluded testimony.

A better practice regarding an offer of proof is (1) the attorney should announce to the court his/her intention to make an offer of proof before eliciting any testimony about the substance and (2) the trial court allows the attorney to proceed with a formal offer of proof.

Termination of Parental Rights
Click on a term below for additional case summaries tagged with the same term.