In re R.D., 376 N.C. 244 (2020)

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Held:

Remanded in part

Affirmed in Part

Vacated in Part

There is a dissent

Earls, J., Beasley, J., Hudson, J.

Facts: This case involves a private TPR against respondent father by an agency to whom an infant was relinquished by the mother. The court appointed a GAL for the infant. The same individual served in the role of the fact gatherer to make a best interests recommendation and attorney to protect the juvenile’s legal rights. After the adjudication of the ground for TPR was determined, the case proceeded to the dispositional phase. The GAL was called to testify about her report, and respondent objected on the basis that requiring her to act as a lawyer and witness violates Rule 3.7 of the Rules of Professional Conduct. The court gave the GAL/Attorney the option to testify and withdraw as the attorney advocate or admit her report without testifying and act as the juvenile’s attorney. The GAL chose the latter. The agency objected because they could not cross-examine the GAL. The TPR was dismissed after the court determined it was not the juvenile’s best interests. The agency appealed.
G.S. 7B-1108(b)-(c) governs the appointment of a GAL in a TPR proceeding, and G.S. 7B-601 describes the duties of a GAL. One of those duties is to assist the court in its determination of the child’s best interests. In some cases, a GAL is appointed to serve in a dual role: one as the juvenile’s GAL and one as the juvenile’s attorney advocate.
At disposition, the court has significantly more discretion in admitting evidence than at the adjudicatory hearing because the Rules of Evidence apply at adjudicatory hearings but at the dispositional hearing, the court “may admit any evidence that it considers to be relevant, reliable, and necessary in its inquiry into the child’s best interests—even if such evidence would be inadmissible under the Rules of Evidence.” Sl.Op. at 9. The trial court did not abuse its discretion in admitting the GAL report as it was relevant, reliable, and necessary. G.S. 7B-1110(a) does not require the court to make explicit findings as to why it found the GAL’s report to be “relevant, reliable, and necessary.”
Regarding the inability to cross-examine the GAL, the agency did not raise a constitutional due process argument before the trial court and waived that issue as a result. “[T]the dispositional stage of a termination proceeding is not adversarial” because the focus is on determining the child’s best interests through evidence the trial court believes is relevant, reliable, and necessary. Sl.Op. at 13. Based on the facts, the court did not abuse its discretion. Given the language in G.S. 7B-1110(a) that explicitly allows for hearsay evidence, which is not subject to cross-examination, “our legislature has made clear that no absolute right to cross-examination exists during the dispositional stage.” Sl.Op. at 14. Further, the holding in In re J.H.K, 365 N.C. 171 (2011) that the GAL team representation did not mandate that the GAL attend the hearing when the attorney advocate was present at the hearing demonstrates there is no absolute right to cross-examination of a the GAL. By considering the ethical conflict under Rule 3.7 of the Rules of Professional Conduct, the court acted within its authority to resolve the issue that was presented.
No party bears the burden of proof at the dispositional stage of a TPR proceeding.
The trial court considered the criteria of G.S. 7B-1110(a), made written findings of the relevant factors, and gave significant weight to the catch-all factor (any other relevant consideration). The trial court determines how much weight to give to the factors. The court also determines witness credibility and determined the respondent father was more credible than respondent mother regarding his lack of knowledge of her pregnancy. The court may draw reasonable inferences from the evidence, which it did when finding the teen mom acted to hide her pregnancy from the teen dad.
The finding that children who are adopted face harm as they try to understand who they are, where they came from, and why they are not raised by their biological parents is not supported by the evidence. Judicial notice is not appropriate as it is not well-settled or authoritatively settled. The Legislature and this Court have found adoption to advance the welfare of minors. Further, the finding is prejudicial as it may have influenced the court’s ultimate best interests determination. Remand.
Dissent: Because evidence in the record supports the best interests conclusion based on the G.S. 7B-1110(a) criteria, the conclusion does not rest on the unsupported factual finding about “harm,” and the court did not abuse its discretion. The order should be affirmed rather than remanded for a new dispositional order.