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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: M.G.T.-B.
Filed: 6 June 2006
1. Appeal and Error_preservation of issues_quashal of subpoena--assignment of
error_no offer of proof
An assignment of error was not properly preserved for appeal and was not addressed
where the mother contended that the court used an improper standard in determining that a
juvenile was not competent and quashing a subpoena, but made no offer of proof about the
testimony that she sought to elicit and no competent reason for subpoenaing the child could be
2. Evidence_hearsay_harmless error_other evidence
Any error in the admission of hearsay statements from a child abuse victim was harmless
where there was sufficient other evidence on which the court could base its finding of neglect.
Appeal by respondent-mother from order entered 1 March 2005 by
Judge Monica Bousman in Wake County District Court. Heard in the
Court of Appeals 13 April 2006.
Susan J. Hall for respondent-mother appellant.
Richard Croutharmel for Guardian Ad Litem, petitioner
Corinne G. Russell for Wake County Human Services, petitioner
Respondent-mother appeals from an adjudication of abuse,
neglect, and dependency entered 1 March 2005 in district court. We
On 28 July 2004 Patrice Garlington (Ms. Garlington), an
investigator with Wake County Human Services, received an
allegation that the juvenile, M.G.T.-B., was being sexually abusedby her stepfather and brother. The report alleged that when
M.G.T.-B.'s mother and stepfather would fight he would come into
her room and touch her inappropriately, that she had a toothache,
had been sick in school on various occasions, and that respondent-
mother was difficult to reach when attempts were made to contact
her to pick up M.G.T.-B. from school.
In the initial home visit by Ms. Garlington, she spoke with
respondent-mother regarding the report and her concerns. Ms.
Garlington stated that as far as the allegations were concerned,
respondent-mother didn't feel like there was anything to be worried
about and appeared to be cooperative. Ms. Garlington implemented a
safety plan which required that there be no unsupervised contact
between the juvenile children in the home with either the
stepfather or adult brother.
During a further investigation, Ms. Garlington learned that
M.G.T.-B. made similar disclosures to adults at her school. At this
point she contacted respondent-mother and asked her to have the
stepfather and adult brother leave the home for the course of the
investigation. Respondent-mother stated that she did not believe
any of the allegations, did not trust M.G.T.-B., and that it was
not possible for the men to leave the home. Respondent-mother
further stated that the only option was for the child to be taken
away by the agency. The child was not removed from the home at this
time as respondent-mother agreed to continue to follow the safety
plan that had originally been implemented. On 13 August 2004, Ms. Garlington again visited the home of
respondent-mother and M.G.T.-B. Upon arriving at the home, Ms.
Garlington inquired of the adult brother as to where M.G.T.-B. was,
and he reported that he was the only one at home and that M.G.T.-B.
was at school. At that time, Ms. Garlington asked if she could
look through the house to verify that M.G.T.-B. was not there and
she noticed that the door to the juvenile's bedroom was locked by
deadbolt. Ms. Garlington waited until respondent-mother came home
at which time she learned that M.G.T.-B. was locked in her bedroom.
Ms. Garlington then took the juvenile to her car to talk, where she
learned that M.G.T.-B. was afraid of her mother and unable to talk
with her mother around. Ms. Garlington then informed respondent-
mother that she was taking the child into non-secure custody out of
concern for her safety. According to Ms. Garlington, respondent-
mother began screaming at M.G.T.-B. that you're not my daughter;
you're on your own; and saying go away; and calling her names
such as whore and bitch. Respondent-mother further stated that
she did not want to see the child anymore and that the child no
longer had a mother.
On 13 August 2004, the court entered a juvenile petition of
abuse, neglect, and dependency and the child was ordered into the
non-secure custody of the Department of Social Services. At trial
Wake County Human Services and the juvenile's guardian ad litem
made a motion to quash a subpoena issued by respondent-mother to
M.G.T.-B. The trial judge contacted the juvenile's therapist, Ms.
Drake, by telephone while in the courtroom and inquired as towhether M.G.T.-B. was able to testify. The trial judge asked
counsel for respondent-mother to make an offer as to what she
expected M.G.T.-B. would say if required by the court to testify.
Counsel for respondent-mother replied, Well, honestly, I have no
way of knowing that, Judge. Based on the information the trial
judge received about M.G.T.-B., she granted the motion to quash and
found that the statements of the juvenile, offered through Ms.
Garlington were offered as evidence of a material fact, the
statements were more probative on the point for which they were
offered than any other evidence which could be procured through
reasonable means, and that the general purposes of the rules and
interests of justice would best be served by introduction of the
juvenile's statements into evidence. Respondent-mother did not
make an offer of proof.
The trial court entered an order on 1 March 2005 concluding
that M.G.T.-B. was abused, neglected, and dependent.
Respondent-mother now appeals.
 On appeal, respondent-mother contends that the trial court
erred in applying an improper standard to determine whether or the
not the minor victim was competent to testify. We disagree.
North Carolina General Statutes Section 8C-1, Rule 601, states
[a] person is disqualified to testify as a
witness when the court determines that he is
(1) incapable of expressing himself concerning
the matter as to be understood, either directly
or through interpretation by one who canunderstand him, or (2) incapable of
understanding the duty of a witness to tell the
N.C. Gen. Stat. § 8C-1, Rule 601(b) (2005). Determining the
competency of a witness to testify lies within the trial court's
ambit of sound discretion. State v. Phillips, 328 N.C. 1, 17, 399
S.E.2d 293, 301, cert. denied, 501 U.S. 1208, 115 L. Ed. 2d 977
In the instant case, the question of the competency of
M.G.T.-B. was raised by Wake County Human Services and the
juvenile's guardian ad litem in support of a motion to quash a
subpoena issued by respondent-mother requiring M.G.T.-B. to testify.
The trial court determined that M.G.T.-B. was not competent to
testify and granted the motion to quash the subpoena. There was no
evidence presented to the trial court regarding the testimony that
respondent-mother sought to elicit from the juvenile, and this Court
is unable to glean any competent reason for the subpoena of the
'It is well established that an exception to the exclusion
of evidence cannot be sustained where the record fails to show what
the witness' testimony would have been had [s]he been permitted to
testify.' State v. Golphin, 352 N.C. 364, 462, 533 S.E.2d 168, 231
(2000) (citations omitted), cert. denied, 532 U.S. 931, 149 L. Ed.
2d 305 (2001), cert. denied, 358 N.C. 157, 593 S.E.2d 84 (2004).
'[I]n 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 proofis required unless the significance of the evidence is obvious from
the record.' Id.
Respondent-mother made no offer of proof upon the trial court's
exclusion of the child's testimony. Further, there is no indication
that the juvenile would have testified in any manner inconsistent
with the testimony of Ms. Garlington. Where this assignment of error
was not properly preserved for appellate review, we decline to
address the issue presented to this Court and therefore it is
 Respondent further contends on appeal that the trial court
erred in admitting hearsay statements of the victim through the
testimony of Ms. Garlington and failing to make specific findings
of fact required for admission of hearsay statements pursuant to
N.C. Gen. Stat. § 8C-1, Rule 803(24). We disagree.
Hearsay is by definition a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. N.C. Gen. Stat.
§ 8C-1, Rule 801(c) (2005). When one attempts to introduce such a
statement at trial to prove the truth of the matter asserted, the
statement is inadmissible unless it falls within one of the
exceptions enumerated by the statutes and case law of this state.
One such enumerated exception is stated in N.C. Gen. Stat. § 8C-1,
A statement not specifically covered by any of
the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness,if the court determines that (A) the statement
is offered as evidence of a material fact; (B)
the statement is more probative on the point
for which it is offered than any other evidence
which the proponent can procure through
reasonable efforts; and (C) the general
purposes of these rules and the interests of
justice will best be served by admission of the
statement into evidence.
N.C. Gen. Stat. § 8C-1, Rule 803(24) (2005). However, even when the
trial court commits error in allowing the admission of hearsay
statements, one must show that such error was prejudicial in order
to warrant reversal. State v. Ramey
, 318 N.C. 457, 470, 349 S.E.2d
566, 574 (1986) (It is well established that the erroneous
admission of hearsay, like the erroneous admission of other
evidence, is not always so prejudicial as to require a new trial.).
In the instant case, notwithstanding the hearsay statements
made by M.G.T.-B., there was sufficient evidence on which the trial
court could base a finding of neglect. The evidence at trial clearly
showed (1) respondent-mother agreed to a protective safety plan and
then violated that plan by leaving M.G.T.-B. alone with the alleged
assaulters; (2) an examining doctor found extensive eroding dental
caries going into the gums and a one-inch linear scar on the
juvenile's lower leg which was opined to be inflicted by respondent-
mother's use of either a shoe, a stick with thorns, or the metal
part of a belt; (3) respondent-mother called the juvenile a whore
and a bitch and further stated that the juvenile was no longer her
daughter, that she was on her own and no longer had a mother; and
(4) expert testimony that M.G.T.-B. displayed symptoms of anxiety,
anger, disassociation, and post-traumatic stress disorder. ThisCourt concludes that these facts standing alone were sufficient to
warrant a determination of dependency and neglect and therefore any
error in admission of hearsay statements was harmless.
Therefore, this assignment of error is overruled.
Accordingly, this Court declines to consider whether the
determination of incompetency was proper where the issue was not
properly preserved for appeal, and we further find no prejudicial
error in the admission of the hearsay statements of M.G.T.-B.
through the testimony of Ms. Garlington. Moreover, all other
assignments of error not briefed on appeal are deemed abandoned.
Judges CALABRIA and STEELMAN concur.
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