IN THE MATTER OF:
B.P. Johnston County
N.P. Nos. 06 J 38-39
Jennifer S. O'Connor for petitioner Johnston County Department
of Social Services.
Elizabeth Myrick Boone for Guardian ad Litem.
Rebekah W. Davis for respondent-father.
CALABRIA, Judge.
Respondent father (“Jerry P.”) appeals from an order
adjudicating B.P. (“B.P.”) abused and neglected and N.P.(“N.P.”)
neglected. We vacate the order and remand the case to the trial
court.
On 12 April 2005, B.P. confided to her boyfriend, B.H.
(“B.H.”), that Jerry P. had pulled her out of bed and alleged that
he had raped her earlier that night. B.H. confronted B.P.'s mother
who told B.P. to take a lie detector test and stated she did not
believe B.P. Afterwards, B.H.'s mother took B.P. to Johnston
County Memorial Hospital for a medical examination. The findings
of the rape kit were consistent with evidence of rape due to thepresence of tearing of B.P.'s vagina; however, seminal fluid could
not be obtained, since B.P. had showered several times in the
previous 48 hours. Law enforcement and the Johnston County
Department of Social Services (“DSS”) were contacted. DSS removed
the children from the home and provided resources for services to
the family. A grand jury subsequently indicted Jerry P. on charges
of incest, rape and indecent liberties with a minor.
On 9 February 2006, DSS filed juvenile petitions alleging that
B.P. was sexually abused and that B.P. and N.P., B.P.'s 11-year-old
sibling, were neglected and dependent. The trial court conducted
hearings on the petitions in April and May of 2006. At the
beginning of the 12 April 2006 adjudication hearing, B.P.'s
Guardian ad Litem Attorney Advocate and DSS requested that B.P. be
allowed to testify in chambers “due to her age and the
circumstances[.]”
Counsel for Jerry P. and the mother objected, arguing that
B.P. was seventeen years of age and that their clients needed to
hear her testimony since she was the main witness in the case. The
trial court allowed B.P. to testify in chambers with all parties'
counsel present and gave them the opportunity to cross-examine B.P.
The child's testimony was heard in chambers but was not
recorded. After hearing evidence, the trial court entered an
adjudication order on 9 June 2006 and concluded B.P. was an abused
juvenile and both B.P. and N.P. were neglected and dependent
juveniles. By a disposition order entered the same day, the trial
court found that it would be contrary to the children's health andwelfare to return them to the care, custody, and control of Jerry
P. and the mother. The trial court placed B.P. in the custody of
her maternal grandparents and N.P. in the custody of her maternal
aunt and uncle. The court also relieved DSS of further efforts
towards reunification with the mother and father. From that order,
Jerry P. appeals.
On appeal, Jerry P. initially contends the adjudicatory
hearing was held in such a manner that deprived him of his rights
to due process and to confront witnesses. We agree.
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 (2005) 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.” Id. 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 abilityto 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 the “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).
Jerry P. acknowledges that his counsel was present during
B.P.'s testimony and was afforded the opportunity to question B.P.
However, Jerry P. asserts that the trial court failed to protect
his interests by not allowing him to view and hear B.P.'s testimony
and by not recording B.P.'s testimony.
The facts of this case are distinguishable from those of Cox,
Barkley, and J.B., because in those cases the recordation of the
minor child's testimony was not at issue. Here, the trial court
did not record B.P.'s testimony in violation of N.C. Gen. Stat. §
7B-806 (2005) which provides that all juvenile “adjudicatory and
dispositional hearings shall be recorded by stenographic notes orby electronic or mechanical means.” Id. (emphasis added). Failure
to comply with this statute, standing alone, is not grounds for a
new hearing. In re Clark, 159 N.C. App. 75, 80, 582 S.E.2d 657, 660
(2003) (citations omitted).
Our Court has held that an appellant who raises the issue of
an inadequately recorded proceeding must show that the failure to
properly record the evidence resulted in specific prejudice. See
id. See also In re Bradshaw, 160 N.C. App. 677, 681, 587 S.E.2d
83, 86 (2003) (general allegations of prejudice are insufficient to
show reversible error resulting from the loss of specific portions
of testimony caused by gaps in recording).
Unlike respondents in Bradshaw and Clark, in this case Jerry
P. specifically alleges prejudice. First, Jerry P. asserts that
the findings of fact in the adjudication orders, to which he
assigns error, are improperly based upon B.P.'s unrecorded
testimony. He also alleges he was unable to verify inconsistencies
with B.P.'s testimony. Finally, Jerry P. also alleges he was
prejudiced by the lack of recordation because he was unable to
verify hearsay testimony admitted as corroborative testimony.
At the 26 April 2006 hearing, a week after B.P. testified in
chambers, petitioner called DSS investigator Dee Etheridge
(“Etheridge”) to testify. During direct-examination, the following
occurred:
[Attorney for DSS]: What did [B.P.] tell you
as to the events?
[Attorney for respondent father]: Objection,
Your Honor.
[Attorney for DSS]: Corroboration.
The Court: What is your reason for objecting?
[Attorney for respondent father]: It's in
follow-up to my objection to taking the - - I
objected to testimony that was not made a part
of the record, being made part of the record
by means of corroboration.
The trial court overruled the objection and allowed the DSS
investigator to testify about what B.P. had told her had occurred
between B.P. and respondent father. When Etheridge completed her
testimony, the following colloquy occurred:
[Attorney for Jerry P.]: Your Honor, I renew
my objection to strike in that (inaudible)
does not corroborate her testimony. In
particular, she did not say that there had
ever been any previous intercourse when she
testified back there so that testimony is not
- -
[Attorney for DSS]: I believe she did, Your
Honor.
[Attorney for respondent mother]: Your Honor,
I have to (inaudible) as counsel here. It's
clear from her testimony back there that she
mentions more than one time that there was no
sexual intercourse at all.
The Court: Do you want to respond to that?
[Attorney Advocate]: She did.
[Attorney for DSS]: I believe [the Attorney
Advocate's] notes indicate that she had
indicated there was one prior incident of
intercourse but even [if there was] not, Ms.
Etheridge is just relaying the information.
Particularly, it is consistent with regards to
[an] eleven or twelve year[] old and five or
six times. If the Court wants to strike that
one instance from the record, that's fine but
at least she did testify it was five or six
times that there was inappropriate sexual
contact between herself and her father. That
is corroborating her statements.
The Court: Let me see - -
[Attorney for DSS]: I believe there was - -
The Court: Let me see you up here at the
bench.
The trial court conducted a bench conference and then stated: “I
think we have agreed here at the bench that any testimony
concerning him using his penis and having intercourse with her
prior to the time that she was fifteen should be stricken; is that
correct?” “All right, let it be stricken. Go ahead.”
Although the testimony was stricken, it does not cure the
prejudice of counsel having to rely on their memories a week after
B.P. testified regarding a critical issue as to whether sexual
intercourse ever occurred. We conclude the trial court failed to
protect the interests of Jerry P. because B.P.'s testimony was not
recorded pursuant to N.C. Gen. Stat. . 7B-806 (2005), and Jerry P.
suffered prejudice from the lack of recordation.
Vacated and remanded.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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