{ "id": 11093154, "name": "IN THE MATTER OF: DAKOTA FAIRCLOTH, AMANDA FAIRCLOTH, MARGARET FAIRCLOTH and JAMES FAIRCLOTH, JR., minor children", "name_abbreviation": "In re Faircloth", "decision_date": "2000-04-04", "docket_number": "No. COA99-505", "first_page": "311", "last_page": "318", "citations": [ { "type": "official", "cite": "137 N.C. App. 311" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "462 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793162, 793229, 793176, 793242, 793215 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0650-02", "/nc/341/0650-03", "/nc/341/0650-04", "/nc/341/0650-01", "/nc/341/0650-05" ] }, { "cite": "460 S.E.2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916961 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0654-01" ] }, { "cite": "424 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "history of lying goes to credibility rather than competency" } ], "opinion_index": 0 }, { "cite": "332 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506793, 2504075, 2504116, 2505493, 2506648 ], "year": 1992, "pin_cites": [ { "parenthetical": "history of lying goes to credibility rather than competency" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0483-01", "/nc/332/0483-05", "/nc/332/0483-03", "/nc/332/0483-02", "/nc/332/0483-04" ] }, { "cite": "419 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "history of lying goes to credibility rather than competency" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313413 ], "year": 1992, "pin_cites": [ { "parenthetical": "history of lying goes to credibility rather than competency" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0574-01" ] }, { "cite": "174 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "parenthetical": "witness competent even though psychiatrist testified it was impossible for him to give reliable evidence" } ], "opinion_index": 0 }, { "cite": "276 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563176 ], "year": 1970, "pin_cites": [ { "parenthetical": "witness competent even though psychiatrist testified it was impossible for him to give reliable evidence" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0641-01" ] }, { "cite": "352 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4745368 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0084-01" ] }, { "cite": "113 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623122 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0463-01" ] }, { "cite": "314 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "310 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2401091 ], "year": 1984, "pin_cites": [ { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0716-01" ] }, { "cite": "337 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "554", "parenthetical": "quoting State v. Jones, 310 N.C. 716, 722, 314 S.E.2d 529, 533 (1984)" } ], "opinion_index": 0 }, { "cite": "315 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716382 ], "year": 1985, "pin_cites": [ { "page": "173", "parenthetical": "quoting State v. Jones, 310 N.C. 716, 722, 314 S.E.2d 529, 533 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0167-01" ] }, { "cite": "300 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "715" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 267", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520490 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0267-01" ] }, { "cite": "347 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "82 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359538 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/82/0646-01" ] }, { "cite": "446 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "859", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522060 ], "year": 1994, "pin_cites": [ { "page": "59", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0052-01" ] }, { "cite": "364 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571435, 2572686, 2566866, 2568754, 2567063 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0474-05", "/nc/321/0474-03", "/nc/321/0474-02", "/nc/321/0474-04", "/nc/321/0474-01" ] }, { "cite": "361 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "87 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358661 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/87/0512-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] } ], "analysis": { "cardinality": 771, "char_count": 17422, "ocr_confidence": 0.762, "pagerank": { "raw": 1.0971677923910228e-07, "percentile": 0.5671720629272209 }, "sha256": "8e4c3155a2da662625a302a2c2546e690f1ec290a250b181c61e1257a8470a14", "simhash": "1:9ba2f73b773a3c96", "word_count": 2884 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and HUNTER concur." ], "parties": [ "IN THE MATTER OF: DAKOTA FAIRCLOTH, AMANDA FAIRCLOTH, MARGARET FAIRCLOTH and JAMES FAIRCLOTH, JR., minor children" ], "opinions": [ { "text": "MARTIN, Judge.\nOn 4 August 1997, the Cumberland County Department of Social Services (CCDSS) filed a juvenile petition alleging that James David Faircloth (d.o.b. 4 June 1987), Dakota Faircloth (d.o.b. 22 September 1990), Amanda Faircloth (d.o.b. 7 August 1992) and Margaret Faircloth (d.o.b. 26 January 1995) were abused and neglected children. The allegations arose as a result of a report made 30 July 1997 by the children\u2019s babysitter, who observed the presence of bruises on Amanda. The children were placed in the custody of CCDSS, and such custody was continued by a series of orders until an adjudicatory hearing was commenced on 15 December 1998.\nAt the adjudicatory hearing, CCDSS presented evidence from the CCDSS social worker, two physicians and a psychologist. Their testimony included hearsay evidence of statements made by the children, to which respondent father did not object. Upon the conclusion of the CCDSS evidence, respondent father sought to call the three older children as witnesses and forecast that they would testify that the abuse was perpetrated by someone other than defendant. Upon objection by CCDSS and by the children\u2019s mother, the court heard testimony from Judith Hill, a therapist for Dakota and Amanda, and Kim Herring, a therapist for James, Jr. The court then made the following findings and conclusions:\nOn the respondent father, James Faircloth\u2019s, calling as a witness the minor child Dakota Faircloth, this being opposed by the petitioner, by the Guardian ad Litem and by respondent Tisha Faircloth, the court having heard evidence and arguments of counsel, makes the following findings of fact based upon clear, cogent and convincing evidence.\nThat Dakota Faircloth\u2019s date of birth is September 22, 1990; that he has been in the custody of the Department of Social Services since July of 1997; that during that period of time he has been undergoing continuous therapy; that he is currently in a therapeutic group home.\nThat according to Judith Hill, a clinical social worker and currently the clinical therapist for Dakota, it would be extremely detrimental to the mental well-being of [Dakota] to face the respondent James D. Faircloth.\nThat according to his clinical social worker, it would be extremely detrimental to Dakota\u2019s well-being for him to be questioned in any setting as to these matters.\nBased upon the foregoing, the court finds as a matter of law that Dakota Faircloth is unavailable and unable to testify at this hearing due to his current mental status and the harm to him which would occur were he to be forced to testify. The court reserves the right to add additional findings of fact in its final order as to this.\nAs to Amanda Faircloth, the court finds that Amanda Faircloth\u2019s date of birth is August 7, 1992; that she has been in the custody of the Department of Social Services since July of 1997; that she is currently in a therapeutic foster home and has been receiving psychiatric and psychological treatment since being placed in DSS custody, and is still undergoing therapeutic treatment.\nThat she has been admitted to a psychiatric hospital twice since being in DSS custody; that in the recent past, she has begun urinating and defecating at inappropriate times and places, an activity which she had done at an earlier time, which she has now regressed to doing again; in addition, she has become physically aggressive.\nThat according to her clinical therapist, Judith Hill, it would be extremely detrimental to the mental health and well-being of Amanda if she were forced to testify in any setting concerning the matters involved in this case.\nBased on the foregoing, the court concludes as a matter of law that Amanda Faircloth is unavailable and unable to testify at this hearing due to her existing mental health and the detriment which would be done her were she called upon to testify.\nAs to James David Faircloth, Jr., the court finds that his date of birth is June 4, 1987; that he has been in the custody of the Department of Social Services since July of 1997; that he has been receiving psychiatric and psychological treatment and therapy since being in DSS custody.\nThat according to this therapist, Kimberly Herring, he has expressed great fear of his father and it would be detrimental for James to have to face his father; that due to the nature of this proceeding and the wishes of James to be back with his mother, the therapist is of the opinion that any testimony he might give in this case could be highly suspect and unreliable and based on James\u2019 self-perceived needs and wants rather than the truth; that Ms. Herring is of the belief that James being called upon to testify in this proceeding under any setting would be counter-productive to his mental health and well-being and to his ongoing therapy.\nThe court concludes that James David Faircloth, Jr., is unavailable and unable to testify in this hearing because of his now-existing mental health and the detriment that would be done to him were he forced to testify in this proceeding.\nAs to all three orders, the court reserves the right to make additional findings of fact prior to signing the order.\nRespondent father then offered evidence through other witnesses tending to show that the children had reported to others that they had been abused by their babysitter, rather than by respondent father.\nAt the conclusion of the hearing, the trial court found that each of the children had been abused in various respects, had been neglected, and adjudicated them abused and neglected children. Respondent appeals from the final adjudicatory and dispositional order.\nRespondent father first assigns error to the admission of opinion testimony by Judith Hill and Kimberly Herring as to the effect testifying would have on the minor children. He contends that neither witness was competent to provide such testimony.\nG.S. \u00a7 8C-1, Rule 702(a) provides:\nIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\nWhether a witness has the requisite knowledge or training to testify as an expert is within the exclusive province of the trial court, and its decision will not be overturned absent an abuse of discretion. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984); Robinson v. Seaboard System Railroad, 87 N.C. App. 512, 361 S.E.2d 909 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988). \u201cAn expert need not have had experience in the very subject at issue,... [i]t is enough that through study or experience the expert is better qualified than the fact-finder to render the opinion regarding the particular subject.\u201d In re Chasse, 116 N.C. App. 52, 59, 446 S.E.2d 855, 859 (1994) (citations omitted).\nJudith Hill testified that she is a clinical social worker employed by the Cumberland County Mental Health Center and had been assigned as a therapist for Dakota and Amanda Faircloth for approximately seven months. She has bachelor\u2019s degrees in sociology and in social work, a master\u2019s degree in social work, and is licensed as a therapist. She has training and experience in determining what kinds of external stimuli affect the behavior of children. Kimberly Herring testified that she had been seeing James Faircloth, Jr., for nearly a year. Ms. Herring is a licensed psychological associate and has a master\u2019s degree in counseling. Both testified extensively as to their observations of the children and the children\u2019s behavioral histories. Both witnesses, through their education, training, experience, and interaction as therapists for the children were better qualified than the fact-finder to have an opinion upon the effect that giving testimony would have on the children\u2019s behavioral, mental and emotional conditions.\nMoreover, preliminary questions concerning the qualification of a person to be a witness are determined by the trial court, which is not bound by the rules of evidence in making such a determination. N.C. Gen. Stat. \u00a7 8C-1, Rule 104(a). In determining whether a person is competent to testify, the court may consider any relevant information which may come to its attention. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478 (1986). Therefore, to the extent the testimony of Ms. Hill and Ms. Herring was relevant to the issue of the competency of the three children to testify, it was not error for the trial court to admit and consider the testimony.\nRespondent father further assigns error to the trial court\u2019s order declaring James, Jr., Dakota, and Amanda \u201cunavailable and unable to testify\u201d at the hearing. For the reasons which follow, we must agree.\nAt the time of the hearing in this case, juvenile proceedings were governed by Subchapter XI of Chapter 7A of the North Carolina General Statutes, the North Carolina Juvenile Code, which was repealed effective 1 July 1999 by Session Laws 1998-202, s.5 and replaced by Chapter 7B of the General Statutes. A policy of the former Juvenile Code, continued in the present Code, was \u201c[t]o provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents.\u201d N.C. Gen. Stat. \u00a7 7A-516(2), repealed effective 1 July 1999, S.L. 1998-202, s.5. In furtherance of that policy, the former Code required, in an adjudicatory hearing to determine the existence or nonexistence of the conditions alleged in the juvenile petition, that the rights of juveniles and their parents to due process, including the right to confront and cross-examine witnesses, be protected, G.S. \u00a7 7A-631, repealed effective 1 July 1999, S.L. 1998-202, s.5, although the right to confront witnesses in such a civil proceeding is subject to \u201cdue limitations.\u201d In re Barkley, 61 N.C. App. 267, 270, 300 S.E.2d 713, 715 (1983).\nThe rules of evidence in civil cases apply in a proceeding where a juvenile is alleged to be abused and neglected. N.C. Gen. Stat. \u00a7 7A-634(b), repealed effective 1 July 1999, S.L. 1998-202, s.5. G.S. \u00a7 8C-1, Rule 601 provides that every person is competent to be a witness unless the court determines the witness is \u201c(1) incapable of expressing himself concerning the matter as to be understood, either directly or through interpretation by one who can understand him, or (2) incapable of understanding the duty of a witness to tell the truth.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 601(b). As applied to children, \u201c \u2018[t]here is no age below which one is incompetent, as a matter of law, to testify.\u2019 \u201d State v. Fearing, 315 N.C. 167, 173, 337 S.E.2d 551, 554 (1985) (quoting State v. Jones, 310 N.C. 716, 722, 314 S.E.2d 529, 533 (1984)). Likewise, even mentally deficient persons may be called as witnesses if capable of relating information and of understanding the obligation to tell the truth. See Artesani v. Gritton, 252 N.C. 463, 113 S.E.2d 895 (1960); Kenneth S. Broun, Brandis and Broun on North Carolina Evidence, \u00a7 132 (5th ed. 1998). A ruling upon a challenge to competency is a matter within the discretion of the trial court and will not be reversed unless the ruling amounts to an abuse of discretion, State v. Hicks, 319 N.C. 84, 352 S.E.2d 424 (1987), or is based on an incorrect legal principle, Artesani, 252 N.C. 463, 113 S.E.2d 895.\nWe believe the trial court\u2019s ruling in the present case to have been based upon an incorrect view of the law. When CCDSS objected to respondent father\u2019s request to call James, Jr., Dakota, and Amanda as witnesses, the trial court correctly conducted a voir dire hearing. However, the focus of the voir dire was incorrectly directed to the effect the children\u2019s testifying would have on their mental health, rather than upon the ability of the children to understand their obligation to tell the truth and their ability to relate events which they may have seen, heard or experienced. Rather than determining whether all or any of the children were competent to testify under G.S. \u00a7 8C-1, Rule 601, the trial court disqualified them as being \u201cunavailable\u201d due to the detriment which would result to them if they testified, apparently relying upon the definition of \u201cunavailability\u201d contained in G.S. \u00a7 8C-1, Rule 804(a)(4) (inability to testify due to presently existing physical or mental condition). The question of a potential witness\u2019 unavailability becomes relevant, however, only with respect to the issue of admissibility of the witness\u2019 hearsay declarations pursuant to the exception contained in Rule 804(b). No issue of availability was presented in this case; no objection was interposed to the admission of the children\u2019s hearsay statements. Although we believe it is possible in a case such as the one before us for a child\u2019s presently existing mental condition resulting from abuse to so profoundly affect the child\u2019s ability to relate events and to understand the obligation to tell the truth as to render the child incompetent to testify, no such evidence was elicited from the therapists in this case, only that the event of testifying would be harmful to the children. Even the testimony of Ms. Herring that James, Jr., was likely not to be a reliable witness does not support his disqualification where the trial court did not personally observe the child\u2019s ability to testify. See State v. Benton, 276 N.C. 641, 174 S.E.2d 193 (1970) (witness competent even though psychiatrist testified it was impossible for him to give reliable evidence); Matter of Quevedo, 106 N.C. App. 574, 419 S.E.2d 158, appeal dismissed, 332 N.C. 483, 424 S.E.2d 397 (1992) (history of lying goes to credibility rather than competency).\nWe are not unmindful of 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. Our courts have long been confronted with this issue, and various mechanisms have been developed to protect both the mental health of the child and the due process rights of those against whom the child might testify. A parent\u2019s right to confront witnesses in an abuse and neglect hearing has been found to have been protected where a mother was removed from the courtroom during the child\u2019s testimony but her counsel was present for the child\u2019s testimony and was afforded cross-examination. Matter of Barkley, 61 N.C. App. 267, 300 S.E.2d 713 (1983). In Matter of Stradford, 119 N.C. App. 654, 460 S.E.2d 173, disc. review denied, 341 N.C. 650, 462 S.E.2d 525 (1995), the testimony of two young girls by closed circuit televison was held sufficient to protect the confrontation rights of a juvenile accused of sexually assaulting them, where there was a showing that the children\u2019s testimony in the presence of the accused would have been harmful to them.\nBecause the trial court applied an erroneous legal standard in denying, respondent father\u2019s request to call the children as witnesses, we must reverse the adjudication order in this case and remand the matter to the District Court for a new hearing at which the competence of the children to testify, should they be called as witnesses, shall be determined in accordance with G.S. \u00a7 8C-1, Rule 601. In the event the children\u2019s mental condition does not render them incompetent to testify, and they are called as witnesses, the trial court shall take appropriate measures to mitigate, insofar as possible, any harmful effects to them of being required to testify.\nReversed and remanded.\nJudges WYNN and HUNTER concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Cumberland County Department of Social Services, by David Kennedy, for petitioner-appellee.", "Carmen J. Battle and William E. Brown for respondent-appellant James D. Faircloth." ], "corrections": "", "head_matter": "IN THE MATTER OF: DAKOTA FAIRCLOTH, AMANDA FAIRCLOTH, MARGARET FAIRCLOTH and JAMES FAIRCLOTH, JR., minor children\nNo. COA99-505\n(Filed 4 April 2000)\n1. Evidence\u2014 expert opinion \u2014 effect testifying would have on minor children\nThe trial court did not abuse its discretion in a child abuse and neglect case by admitting the testimony of two therapists as to the effect testifying would have on the minor children because: (1) both witnesses were better qualified than the fact-finder to have an opinion upon the effect that giving testimony would have on the children\u2019s behavioral, mental and emotional conditions, N.C.G.S. \u00a7 8C-1, Rule 702(a); and (2) preliminary questions con-ceming the qualifications of a person to be a witness are determined by the trial court, which is not bound by the rules of evidence in making such a determination, N.C.G.S. \u00a7 8C-1, Rule 104(a).\n2. Witnesses\u2014 child \u2014 ability to tell truth \u2014 improper focus on effect on mental health\nThe trial court\u2019s order in a child abuse and neglect case that declared the three children to be unavailable and unable to testify was erroneous as a matter of law because the voir dire was incorrectly directed to the effect the children\u2019s testifying would have on their mental health, rather than upon the ability of the children to understand their obligation to tell the truth and their ability to relate events which they may have seen, heard, or experienced. N.C.G.S. \u00a7 8C-1, Rules 601 and 804(a)(4).\nAppeal by respondent father from judgment entered 16 December 1998 by Judge John W. Dickson in Cumberland County District Court. Heard in the Court of Appeals 17 February 2000.\nCumberland County Department of Social Services, by David Kennedy, for petitioner-appellee.\nCarmen J. Battle and William E. Brown for respondent-appellant James D. Faircloth." }, "file_name": "0311-01", "first_page_order": 343, "last_page_order": 350 }