In re E.P.

JACKSON, Judge.

GEER, Judge, dissenting.

I respectfully dissent. The core issue in this appeal is whether the trial court properly denied petitioner's request for substance abuse records — without reviewing those records — on the ground that those records would only be relevant at the disposition stage of the hearing. It is well established that we review questions of relevance de novo. The question before this Court is whether the trial court erred as a matter of law in determining that the substance abuse records were not relevant at the adjudicative phase of the hearing.

In deciding this question, we must keep in mind the standard for determining whether substance abuse is relevant with respect to determinations of neglect and dependency. It has long been the law in North Carolina that we need not wait until a child is actually harmed to determine that he or she has been neglected. It is enough that "there be some physical, mental, or emotional impairment of the juvenileor asubstantial risk of such impairment.. . ."In re Safriet,112 N.C. App. 747,752,436 S.E.2d 898,901-02(1993) (emphasis added).Page 309The cases reiterating this "substantial risk" standard are numerous, as can be seen by shepardizingSafriet.

I believe the majority does not properly apply this standard within the context of N.C.R. Evid. 401, which provides: "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Instead of determining whether the substance abuse recordstendto make the existence of a substantial risk of harmmore probable, the majority appears to make the ultimate finding that the records do not in fact prove a substantial risk of harm. Moreover, the majority opinion never appears to specifically address the relevancy of the documents to the issue of dependency, as apart from neglect. Because (1) I believe that the records are relevant, as defined by Rule 401, to both neglect and dependency, and (2) only the trial court may determine what factual findings should be made based on those records, I respectfully dissent.

With respect to the granting of the motion to dismiss, I believe that the majority opinion mistakes the issue and, as a result, ends up sitting as a trial panel. When the trial court concluded that there was insufficient evidence to support the petition's allegations, it did so without benefit of the substance abuse records — records that in fact contradicted some of the trial court's findings of fact. The trial court's decision not to consider the records was based upon a misapprehension of law that such records generally — and not these specific records — were not relevant at the adjudication stage. I believe that it is reasonably possible given the content of the records that the trial court could have reached a different decision with respect to the motion to dismiss. That question should be resolved by the trial court and not by this Court. The first issue presented by this appeal is whether the trial court properly denied DSS' motion for production of the parents' substance abuse records. Without reviewing those records, the trial court declined to order their production or admit them into evidence, concluding — based solely on the arguments of counsel — that the records went "more to disposition than to adjudication."

As the parties and the majority opinion acknowledge, this ruling was effectively a determination that the substance abusePage 310records were not relevant to the adjudication phase of the hearing. Because the trial court had no knowledge of what was contained in those records — and since they had not been produced, counsel could not have supplied any details — this ruling was based on a flat determination that substance abuse records are relevant only in the disposition phase.

The majority opinion, citing various opinions, "recognize[s] that evidence of substance abuse and a parent's progress in treatment may be relevant in determining whether a child meets the definitions of neglect and dependency." This assertion and those opinions readily demonstrate that the trial court erred in determining that substance abuse records go "more to disposition than to adjudication." Yet, the majority opinion does not address this specific error.

Although a trial court's rulings on relevancy "are given great deference on appeal," such rulings are "technically . . . not discretionary and therefore are not reviewed under the abuse of discretion standard."State v. Wallace,104 N.C. App. 498,502,410 S.E.2d 226,228(1991),appeal dismissed and disc. review denied,331 N.C. 290,416 S.E.2d 398,cert. denied,506 U.S. 915,121 L. Ed. 2d 241,113 S. Ct. 321(1992).See also Hales v. Thompson,111 N.C. App. 350,357,432 S.E.2d 388,393(1993) ("A ruling on whether proffered evidence is relevant is not discretionary on the part of the trial judge, but will nevertheless be given great deference on appeal.").

In this case, the trial court reached its conclusion regarding relevance without ever looking at the records, which had been subpoenaed, to assess their content.²The trial court ultimately reviewed the records in connection with a request to settle the record on appeal and ordered that the records be made an exhibit to the record — essentially an offer of proof — so that this Court could review them. Under this unusual set of circumstances, this Court is in a better position to determine the relevance of the records than the trial court because we have actually reviewed the records. As a result, the trial court's ruling should be entitled to little deference here.Page 311 Although the majority opinion acknowledges, contrary to the ruling of the trial court, that substance abuse evidence may be relevant "in some instances" in determining neglect and dependency, the opinion holds that the disputed records are not relevant in this case because evidence of respondents' substance abuse could "otherwise be obtained." Notably, the majority opinion cites no authority to support its holding. I know of no case holding that recordsare not relevant— the issue here — simply because evidence to the same effect may be obtained elsewhere. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C.R. Evid. 401. I cannot see how the availability of other evidence can affect application of Rule 401.³

With respect to other cases finding substance abuse evidence to be relevant, the majority notes that "the evidence as a whole," in those cases, presented a more compelling case for neglect. As with the availability of other evidence, I fail to see what bearing the assessment of the record "as a whole" has on whether a specific piece of evidence is relevant or not. To apply the relevance standard used by the majority opinion, a trial court would have to wait to the end of a hearing and assess "the evidence as a whole" before deciding whether any particular evidence was relevant.

The curious approach adopted by the majority opinion is the result of its failure to apply the definition of "relevant evidence" in Rule 401 to determine whether the records tend to make the existence of any fact that is of consequence to the action more or less probable. I believe this part of the majority opinion's analysis has no bearing on the relevance of the records, but rather goes to the question whether the failure to require production of those records was prejudicial.

Applying Rule 401's standard, it is apparent that the records in the present case tend to make more probable the facts that respondents had very substantial substance abuse problems, had severe difficulties coping as a family, and were making no progress with respect to treatment. I would further conclude that these facts were of consequence, under well established authority of this Court (including thePage 312cases relied upon by the majority opinion), to the question whether the parents' substance abuse was creating a substantial risk of harm to the children.See, e.g., In re J.S.L.,177 N.C. App. 151,155-57,628 S.E.2d 387,390(2006) (holding medical records detailing mother's substance abuse issues were admissible in neglect proceeding);In reE.C.,174 N.C. App. 517,524,621 S.E.2d 647,653(2005) (mother's attempt to care for child while intoxicated and her failure to complete substance abuse program supported trial court's conclusion that mother neglected her child).

The excluded records contain the conclusions of a certified clinical addictions counselor that the father showed a "high probability" of substance abuse problems and was alcohol and cannabis dependent. The counselor further stated that the father had shown "poor coping skills and poor judgment leading to his current situation" regarding his marriage and his children. In addition, the records indicate that the father acknowledged (1) that the parents were "drinking to excess and arguing frequently," (2) that he was "using [alcohol] at least every other day and sometimes daily up to a 6 pack of beer," (3) that he was using marijuana at least 4 to 5 days out of the week, and (4) that he had previously used cocaine.

With respect to the mother, the records indicate that she had not kept appointments for therapy and that she "continued to have a number of crisis [sic] which were alcohol related, including an arrest for assaulting her husband and the arresting officer." Further, the records indicated that she needed "more intensive treatment" to manage her alcohol use, including possible admission as an inpatient.

Although such records may not be dispositive, surely they are pertinent to a trial court's determination whether a child is at substantial risk of harm. If substance abuse gives rise to a substantial risk of harm, then a child is living "in an environment injurious to the juvenile's welfare" and is neglected under N.C. Gen. Stat. §7B-101(15) (2005).

A father's poor coping skills and judgment regarding his children, his extensive substance abuse and dependency, and a mother's need for — and rejection of — intensive treatment, including inpatient treatment, despite "a number of alcohol-related crises, including violence against her husband and a police officer, make the existence of a substantial risk of harm "more probable . . . than it would be without the evidence." N.C.R. Evid. 401.See, e.g., In re K.D.,178 N.C. App. 322,328-29,631 S.E.2d 150,155(2006) (evidence that mother struggledPage 313with parenting skills, domestic violence, and anger management supported trial court's finding of likelihood of future neglect);In re Leftwich,135 N.C. App. 67,72-73,518 S.E.2d 799,803(1999) (upholding termination of parental rights for neglect when, among other things, parent did not correct substance abuse problems);In re Helms,127 N.C. App. 505,511,491 S.E.2d 672,676(1997) (evidence that child had "extended contact" with substance abusers supported trial court's finding that child was "exposed . . . to risk").

It should also be noted that the majority does not address the dependency ground apart from the neglect ground. N.C. Gen. Stat. §7B-101(9) defines a dependent juvenile as "[a] juvenile . . . whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement." While in initial adjudications, such as this one, there is no specification as to the source of the parent's inability, in termination of parental rights proceedings, the statute expressly provides that "[i]ncability under this subdivision may be the result of substance abuse. . . ." N.C. Gen. Stat. §7B-1111(a)(6) (2005).

The issue with respect to dependency is whether a parent's substance abuse renders a parent unable to provide care or supervision to the child. Poor coping skills and judgment, substantial substance abuse, alcoholic crises resulting in domestic violence, and an unwillingness to obtain treatment, including needed inpatient treatment, may call into doubt the parents' ability to provide necessary care and supervision.See, e.g., In re L.W.,175 N.C. App. 387,391,623 S.E.2d 626,628(noting dependency exists when substance abuse problems render parent incapable of providing proper care and supervision),appeal dismissed anddisc. review denied,360 N.C. 534,633 S.E.2d 818(2006).

In short, I find inconceivable any suggestion that these records wereirrelevantto the adjudication phase issues. Nevertheless, because DSS was able to offer some evidence of respondents' substance abuse even without access to these records, the question remains whether the failure to require production of the records and their subsequent exclusion was prejudicial. With respect to this issue, the majority concludes that DSS has failed to establish prejudice because the excluded records "only would have corroborated the evidence presented." I disagree.

DSS' evidence at the hearing — without the disputed records — indicated that the father occasionally abused alcohol and that thePage 314mother abused alcohol and prescription medication, had once cut her wrist while caring for the children, and had periodically engaged in domestic violence against the father. As noted by the majority, the trial court, based on this evidence, found that there had been "some evidence" of substance abuse by the father, that there was "no substantial evidence of any connection between the substance abuse and domestic violence and the welfare of the[] two children," and that the family's issues were "being adequately addressed in the family setting at the present time."

The disputed records, on the other hand, indicated that the fatherregularlyabused alcohol and marijuana, probably had a chemical dependency, and lacked coping skills and judgment with respect to his children and wife — information calling into question his ability to parent in a way not suggested by the testimony standing alone. With respect to the wife, according to the disputed records, her substance abuse was so severe that she required intensive treatment, possibly including inpatient treatment, which necessarily would have interfered with her ability to care for her children. Further, she had a number of alcohol-related crises and not only assaulted her husband, but also a police officer. The wife's need for intensive care, as well as her alcohol-related crises, strongly suggest — contrary to the trial court's finding made without benefit of these records — that the wife's issues, at least, were not being adequately addressed within the family setting.

I, therefore, disagree with the majority that the records were merely corroborative of the existing testimony. I believe the records suggested substantially greater problems and that this evidence reasonably could have caused the district court to reach a different conclusion in ruling on the motion to dismiss. The trial court's error in denying the motion for production and its exclusion of the evidence sight unseen was, therefore, prejudicial error. DSS also contends that the trial court erred in granting respondents' motion to dismiss the petitions at the close of DSS' evidence. Although dismissal under Rule 41(b) falls within the discretion of the trial court, it should nevertheless be granted only in "`the clearest cases.'"In re Oghenekevebe,123 N.C. App. 434,437,473 S.E.2d 393,396(1996) (quotingIn re Becker,111 N.C. App. 85,92,431 S.E.2d 820,825(1993)).Page 315

I believe the majority errs in addressing the merits of the order dismissing the petitions. Our appellate courts have regularly recognized that discretionary rulings made under a misapprehension of the law should be reversed for reconsideration under the correct legal principles.SeeWilson v. McLeod Oil Co.,327 N.C. 491,522-23,398 S.E.2d 586,603(1990) (remanding trial court's discretionary ruling denying motion to amend, made under misapprehension of the law, for reconsideration);Ledford v. Ledford,49 N.C. App. 226,234,271 S.E.2d 393,399(1980) (reversing as an abuse of discretion trial court's discretionary ruling, made under a misapprehension of the law, denying motion to amend).

Because the trial court granted the motion to dismiss under the mistaken belief that the substance abuse records were not relevant at the adjudication stage — a legal error — I would reverse the trial court's dismissal of the DSS petitions and remand for reconsideration of the motion to dismiss so that the erroneously excluded medical records could be weighed as well. Contrary to the majority opinion, I do not believe that we can, given the evidence in this case, forecast what the trial court would have done had the court considered the substance abuse records in connection with the hearing testimony. I prefer not to speculate and would let the trial court determine on remand whether the case qualifies as one of "the clearest cases" and, therefore, merits a Rule 41(b) dismissal.