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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: D.R., Minor child
Filed: 2 August 2005
1. Constitutional Law--right to confront witnesses--termination of parental rights--
Termination of parental rights is a civil proceeding in which the Sixth Amendment is not
applicable. Here, respondents' right to confront witnesses was not violated by introduction of
statements of the child to social workers, a foster parent and psychologists.
2. Discovery--funds for expert witness--motion for deposition--reasons insufficient
The trial court did not abuse its discretion in a termination of parental rights hearing by
denying respondent-father's motions for funds to employ an expert witness and for a telephone
deposition of the foster parents. Respondent-father did not sufficiently identify the information
sought or the material assistance it would provide.
3. Termination of Parental Rights--order not timely--no prejudice
Failure of the trial court to enter the order terminating respondents' parental rights within
thirty days after the hearing was completed as required by N.C.G.S. §§ 7B-1109(e) and 7B-
1110(a) was not per se prejudicial, and respondents failed to show they were prejudiced by the
thirty-nine day delay in entry of the order.
Appeals by respondent mother and respondent father from
judgment entered 22 January 2004 by Judge Shirley H. Brown in
Buncombe County District Court. Heard in the Court of Appeals 22
Charlotte W. Nallan, for petitioner-appellee Buncombe County
Department of Social Services.
David Childers, for respondent mother-appellant.
Richard E. Jester, for respondent father-appellant.
S.J.R. (respondent-father) and P.R. (respondent-mother)
(collectively, respondents) appeal a judgment terminating their
parental rights over their child, D.R. We affirm.
D.R. was born on 16 October 1996 to respondents and at the
time of the hearing, was seven-and-one-half years old. Buncombe
County Department of Social Services (DSS) became involved with
D.R. in December 2000 when it received reports of overly severe
discipline by respondent-father. DSS learned of ongoing domestic
violence between respondents, substance abuse by respondents, and
unstable living arrangements. The record shows respondent-mother
obtained a domestic restraining order against respondent-father in
Fall 2001. DSS attempted to help respondents care for D.R. at
their residence. Physical and recurring substance abuses in the
home led to the removal of D.R. and his placement with his paternal
grandmother in January 2002.
D.R. exhibited serious mental health problems and aggressive
behavior which prevented the paternal grandmother from caring for
him. DSS took custody of D.R. on 25 January 2002 and placed him
with foster parents where he has since remained. DSS petitioned
the trial court to find D.R. neglected. On 18 April 2002, the
trial court ordered: (1) D.R. neglected; (2) D.R. to remain in
DSS's custody; (3) respondents and D.R. undergo psychological
evaluations and treatment; (4) respondents complete anger
management, substance abuse, and parenting classes; (5) respondents
maintain employment and provide financial support to D.R.; and (6)
respondents receive weekly visitation with D.R.
While D.R. remained in foster care, DSS received reports of
inappropriate sexual discussions and behavior by D.R. He told hisfoster parents that he had watched respondents engage in sexual
intercourse and participated with them in sexual activities. D.R.
also reported that a step-brother had engaged in oral sex with him
at respondent-mother's home. The foster parents learned D.R. had
instigated sexual conduct with another boy at church. In August
2002, DSS petitioned the trial court to find D.R. an abused
juvenile, alleging the facts as provided by the foster parents. In
response, respondents moved the trial court for expenses to cover
expert psychological evaluations, which was denied. The petition
was not immediately heard due to discovery motions, requests for
continuances, and the trial court's calendar. DSS later
voluntarily dismissed the abuse petition, without prejudice, on 28
D.R. underwent extensive psychological evaluations and
treatment during placement with his foster parents. He was treated
for depression, anxiety, conflict, aggressiveness, abusiveness,
Post Traumatic Stress Disorder, and inappropriate sexual knowledge
In January 2003, respondents were arrested and charged with
multiple counts of first-degree sexual offense and taking indecent
liberties against a child. Their criminal trial is pending. A
permanency planning and review hearing was held in March 2003. The
trial court ordered D.R. to remain in DSS's custody and for
reunification efforts with respondents to continue. Based on
respondents' failure to address the issues causing D.R.'s removal
and D.R.'s continued emotional problems, the trial court changedthe permanency plan for D.R. from reunification to adoption in
August 2003. This permanency plan was reviewed and renewed in
September and November 2003.
On 4 September 2003, DSS petitioned the trial court to
terminate respondents' parental rights alleging D.R. was: (1)
emotionally and sexually abused; (2) neglected; and (3) left in
foster care for more than twelve months without respondents making
reasonable efforts towards correcting the conditions leading to
A hearing was held on 10, 12, 13, and 14 November 2003. In
response to evidence raised during previous hearings, respondents
asserted none of the sexual activities D.R. spoke of were true and
accused the foster parents of coaching D.R. to make the
allegations. Respondent-father argued the problems arose after
D.R. was removed from respondent-mother's home. Respondents
offered evidence that both were sober and had completed physical
and substance abuse programs.
The trial court found respondents' evidence lacked
credibility and determined the allegations in the petition to be
true. The trial court determined the following grounds existed to
terminate respondents' parental rights: (1) neglect under N.C.
Gen. Stat. § 7B-1111(a)(1); (2) abuse under N.C. Gen. Stat. § 7B-
1111(a)(1); and (3) willful abandonment in foster care placement
for more than twelve months. It further concluded that it was in
D.R.'s best interest to terminate respondents' parental rights. The termination order was entered on 22 January 2004. Both
Respondents argue the trial court erred by: (1) allowing
testimony in violation of their Sixth Amendment rights; (2) finding
facts and making conclusions of law without clear, cogent, and
convincing evidence; (3) denying respondents' motion for funds for
an expert witness and a telephone deposition; (4) entering the
termination of parental rights order after the statutory thirty day
III. Sixth Amendment
 Respondents argue the trial court erred by admitting
statements made by D.R. through the testimony of social workers, a
foster parent, and psychologists. Specifically, they contend the
testimony was admitted in violation of their Sixth Amendment right
to confront witnesses against them. We disagree.
The Sixth Amendment to the United States Constitution states
in part, [i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with witnesses against him. U.S.
Const. Amend. VI (emphasis supplied). The United States Supreme
Court held in Crawford v. Washington, the Confrontation Clause from
the Sixth Amendment bars admission of out-of-court testimonial
statements unless the declarant is unavailable and the defendant
had a prior opportunity to cross-examine the declarant. 541 U.S.
36, 68, 158 L. Ed. 2d 177, 203 (2004). A termination of parental
rights hearing is a civil rather than criminal action, with theright to be present, to testify, and to confront witnesses subject
to 'due limitations.' In re Faircloth, 153 N.C. App. 565, 573,
571 S.E.2d 65, 71 (2002) (citing In re Murphy, 105 N.C. App. 651,
658, 414 S.E.2d 396, 400, aff'd, 332 N.C. 663, 422 S.E.2d 577
(1992); In re Barkley, 61 N.C. App. 267, 270, 300 S.E.2d 713, 715
Here, DSS's workers, D.R.'s foster parents, and psychologists
testified concerning statements D.R. made to them and D.R.'s
questionable activities. Respondents assert this testimony
violated their Sixth Amendment rights since they were not afforded
an opportunity to confront and cross-examine D.R. However, the
Sixth Amendment is not applicable to this matter as it is a civil
action. See In re Faircloth, 153 N.C. App. at 573, 571 S.E.2d at
Respondents only assert the constitutional argument in their
briefs regarding the statements. Our review is limited to
arguments presented by parties in their briefs supported by
citations of authority. See N.C.R. App. P. 28(b)(6) (2004); see
also Melton v. Family First Mortgage Corp., 156 N.C. App. 129, 132,
576 S.E.2d 365, 368 (2003) ([P]laintiff has only presented
arguments in her brief regarding [some of] her claims . . . .
Accordingly, our review will be limited to those issues.)
(citation omitted), aff'd per curiam, 357 N.C. 573, 597 S.E.2d 672
(2003). This assignment of error is overruled.
IV. Clear, Cogent, and Convincing Evidence
Respondents contend that without the evidence admitted in
violation of their Sixth Amendment rights, there was no clear,
cogent, and convincing evidence supporting the trial court's
findings of fact and conclusions of law. In light of our earlier
holding that respondents' Sixth Amendment rights were not violated
and the trial court properly admitted the testimony, we dismiss
this assignment of error as moot.
V. Motion for Funds
 Respondents assert the trial court erred by denying
respondent-father's motions for funds to employ an expert witness
and complete a telephone deposition. We disagree.
Article 36 of Chapter 7A of our General Statutes proscribes
the practices, procedures, and entitlements for indigent persons.
N.C. Gen. Stat. § 7A-450 et seq. (2003). The scope of this Article
extends to a proceeding to terminate parental rights . . . .
N.C. Gen. Stat. § 7A-451(a)(14) (2003). N.C. Gen. Stat. § 7A-454
(2003) states, [f]ees for the services of an expert witness for an
indigent person and other necessary expenses of counsel shall be
paid by the State in accordance with rules adopted by the Office of
Indigent Defense Services. There is no requirement that an
indigent defendant be provided with investigative assistance merely
upon the defendant's request. State v. Brown, 59 N.C. App. 411,
416, 296 S.E.2d 839, 842 (1982) (citation omitted), cert. denied,
310 N.C. 155, 311 S.E.2d 294 (1984). Rather, it is in the trial
court's discretion whether to grant requests for expenses to retain
an expert witness or to conduct a deposition. State v. Sandlin, 61N.C. App. 421, 426, 300 S.E.2d 893, 896-97 ([T]he grant or denial
of motions for appointment of associate counsel or expert witnesses
lies within the trial court's discretion and a trial court's ruling
should be overruled only upon a showing of abuse of discretion.),
cert. denied, 308 N.C. 679, 304 S.E.2d 760, cert. denied, 464 U.S.
995, 78 L. Ed. 2d 685 (1983).
As in the case of providing private
investigators or other expert assistance to
indigent defendants, we think the appointment
of additional counsel is a matter within the
discretion of the trial judge and required
only upon a showing by a defendant that there
is a reasonable likelihood that it will
materially assist the defendant in the
preparation of his defense or that without
such help it is probable that defendant will
not receive a fair trial.
Id. at 427, 300 S.E.2d at 897 (quoting State v. Johnson, 298 N.C.
355, 362-63, 259 S.E.2d 752, 758 (1979) (citations omitted)).
Mere hope or suspicion that favorable evidence is available is not
enough to require that such help be provided. State v. Holden,
321 N.C. 125, 136, 362 S.E.2d 513, 522 (1987) (citing State v.
Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976)), cert. denied, 486 U.S.
1061, 100 L. Ed. 2d 935 (1988).
A. Expert Witness
Respondent-father moved the trial court for funds to retain an
expert witness to examine D.R., review his medical records, and
assist in preparation for the termination hearing. In support of
his motion, respondent-father asserted the interviews with D.R.
leading to evidence about his sexual abuse were conducted
improperly and to determine the impact of the techniques used inquestioning of the minor child, an expert in the field of child
sexual abuse should be appointed to review the various interviews
of the minor child and to conduct a physical and/or mental
examination of the minor child[.]
Our review of the record, including respondent-father's
motion, does not show there [was] a reasonable likelihood that it
will materially assist [respondents] in the preparation of [their]
defense or that without such help it is probable that [respondents]
will not receive a fair trial. Sandlin, 61 N.C. App. at 427, 300
S.E.2d at 897. The trial court properly received briefs from both
parties and heard their arguments in open court. Respondent-father
failed to show the trial court abused its discretion in denying his
B. Telephone Deposition
Respondent-father also moved the trial court to allow and pay
for a telephone deposition of D.R.'s foster parents. He argued the
investigation of respondents' alleged sexual abuse of D.R. resulted
from the foster parents' improper questioning of D.R. regarding his
conduct and behavior. However, respondent-father did not include
in his motion his reasons for deposing the foster parents, the
information he sought, or that there [was] a reasonable likelihood
that it will materially assist [respondents] in the preparation of
[their] defense or that without such help it is probable that
[respondents] will not receive a fair trial. Id.
Our review of the record and respondent-father's motion fails
to show the trial court abused its discretion in denying his motionfor expenses to conduct a telephone deposition. This portion of
the assignment of error is overruled.
VI. Statutory Time Limit
 Respondents argue the trial court erred by not entering
its order terminating respondents' parental rights within the
statutory time frame. We agree, but find respondents failed to
show any prejudice.
Sections 7B-1109 and 7B-1110 of our General Statutes require
a trial court shall reduce to writing, sign, and enter its
decision on termination no later than 30 days following the
completion of the termination of parental rights hearing. N.C.
Gen. Stat. § 7B-1109(e) (2003); N.C. Gen. Stat. § 7B-1110(a) (2003)
(emphasis supplied). Here, the termination hearing was completed
on 14 November 2003. The trial court did not reduce to writing,
sign, and enter its order terminating respondents' parental rights
until 22 January 2004, sixty-nine days later.
This Court has addressed the issue of prejudicial error
resulting from untimely completion of statutory requirements in
juvenile proceedings. In re E.N.S., 164 N.C. App. 146, 153, 595
S.E.2d 167, 172 (2004) (adjudication and dispositional orders
entered over forty days after the hearing in violation of N.C. Gen.
Stat. § 7B-807(b) and § 7B-905(a) not reversible error without a
showing of prejudice), disc. rev. denied, 359 N.C. 189, ___ S.E.2d
___ (2004); In re J.L.K., 165 N.C. App. 311, 315-16, 598 S.E.2d
387, 390 (2004) (termination order entered eighty-nine days after
the hearing not reversible error without a showing of prejudice),disc. rev. denied, 359 N.C. 68, 604 S.E.2d 314 (2004); In re B.M.,
168 N.C. App. 350, 354, 607 S.E.2d 698, 701-02 (2005) (delay in
filing petition seeking termination of parental rights in violation
of N.C. Gen. Stat. § 7B-907(e) not reversible error without a
showing of prejudice); In re L.E.B., 169 N.C. App. 375, 379, 610
S.E.2d 424, 426 (2005) (six month delay in entry of termination of
parental rights order held prejudicial), disc. rev. denied, 359
N.C. 632, ___ S.E.2d ___ (June 30, 2005) (No. 218P05); In re
A.D.L., 169 N.C. App. 701, 706, ___ S.E.2d ___, ___ (April 19,
2005) (No. COA03-1333) (delay in entry of order terminating
parental rights not reversible error without a showing of
prejudice); In re T.L.T., 170 N.C. App. 430, 432, 612 S.E.2d 436,
438 (2005) (seven month delay in entry of order terminating
parental rights held prejudicial); In re C.J.B. & M.G.B., 171 N.C.
App. 132, 135, ___ S.E.2d ___, ___ (June 21, 2005) (No. COA04-992)
(five month delay in entry of order terminating parental rights
A review of these decisions shows this Court:
has never held that entry of the written order
outside the thirty-day time limitations
expressed in sections 7B-1109 and 7B-1110 was
reversible error absent a showing of
prejudice. To the contrary, we have held that
prejudice must be shown before the late entry
will be deemed reversible error.
In re C.J.B., 171 N.C. App. at 134, ___ S.E.2d at ___ (citing In re
J.L.K., 165 N.C. App. at 315-16, 598 S.E.2d at 390-91; In re B.M.,
168 N.C. App. at 353-55, 607 S.E.2d at 700-02). Respondents do not argue how they or the other parties were
prejudiced by the thirty-nine day delay. Their argument rests
solely on the assertion that the delay in entering the order, in
violation of N.C. Gen. Stat. § 7B-1109(e) and § 7B-1110(a), was per
se prejudicial. This Court has expressly overruled this argument.
See In re C.J.B., ___ N.C. App. at ___, ___ S.E.2d at ___
([P]rejudice must be shown before the late entry will be deemed
reversible error.) (emphasis supplied). Our decision does not
condone the delay in entering the adjudication and dispositional
order beyond the time limits in the statutes. See In re B.M., 168
N.C. App. at 355, 607 S.E.2d at 702 (Although this Court did not
find prejudice, we stated, [w]e strongly caution against this
practice, as it defeats the purpose of the time requirements
specified in the statute, which is to provide parties with a speedy
resolution of cases where juvenile custody is at issue.). This
assignment of error is overruled.
Respondents' Sixth Amendment confrontation rights were not
violated by the admission of testimony during a civil matter. The
trial court did not abuse its discretion in denying respondent-
father's motions for expenses to retain an expert witness and to
conduct a telephone deposition of the foster parents.
Although the trial court entered its termination order sixty-
nine days after the hearing in violation of N.C. Gen. Stat. § 7B-
1109(e) and N.C. Gen. Stat. § 7B-1110(a), respondents failed toargue how the delay was prejudicial. We affirm the trial court's
order terminating respondents' parental rights.
Judges WYNN and ELMORE concur.
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