Opinion
No. COA18-953
05-21-2019
IN THE MATTER OF: W.A.B., B.F.B., A.G.B., E.H.B., R.A.B., M.A.B.
Gaston Legal Clinic, by N. Clifton Cannon, for petitioner-appellee mother. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for respondent-appellant father.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Gaston County, Nos. 13 JT 84-89 Appeal by respondent-father from orders entered 28 June 2018 by Judge John K. Greenlee in Gaston County District Court. Heard in the Court of Appeals 28 March 2019. Gaston Legal Clinic, by N. Clifton Cannon, for petitioner-appellee mother. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for respondent-appellant father. INMAN, Judge.
Respondent-father ("Father") appeals from orders terminating his parental rights to his minor children "Walt," "Brynn," "Amy," "Ella," "Robert," and "Mike." After careful review, we affirm.
Pseudonyms are used to protect the identity of the juveniles and for ease of reading.
Father and petitioner-mother ("Mother") were married in July 1999 and divorced in March 2011. Pursuant to a separation agreement incorporated into the divorce judgment, the couple's six children were to live with Mother, and Father was allowed to visit "as the parties may mutually agree." Father was also to pay Mother $180.00 per week in child support.
Mother filed a petition to terminate Father's parental rights as to Walt on 9 May 2013. Following a 12 November 2013 hearing, the trial court entered a 6 December 2013 order dismissing the petition after concluding that grounds to terminate Father's parental rights had not been proven. Mother filed a second petition to terminate concerning Walt in 2014, but voluntarily dismissed the petition in 2015.
On 22 November 2017, Mother filed a new set of petitions to terminate Father's parental rights as to all his minor children, alleging that he had not paid any child support since January 2013 and that he "had no meaningful relationship with the minor child[ren] in over two years, having last seen the child[ren] on March 18, 2013[.]" At the trial court's 18 May 2018 hearing on the petitions, the court allowed counsel for Father and Mother to make closing arguments at the end of the adjudicatory phase of the hearing. The court then announced that it would find the existence of abandonment and failure to pay child support as grounds to terminate. See N.C. Gen. Stat. §§ 7B-1111(a)(4), (7) (2017). The trial court proceeded to hear evidence for disposition. After the court addressed the guardian ad litem and accepted his report into evidence, the following exchange occurred:
THE COURT: All right. Either the [Mother] or the [Father] wish . . . to question [the guardian ad litem] about
his report?
[COUNSEL FOR MOTHER]: No, sir.
[COUNSEL FOR FATHER]: No, Your Honor.
THE COURT: All right. I don't need arguments regarding best interests. Again, this is—since this is a discretionary review on my part, I don't find arguments to be persuasive at all. This is something that is a hundred percent the Court's discretion, and the Court takes very seriously . . . .
The trial court proceeded to discuss the evidence and make its determination that it was in the children's best interests to terminate Father's parental rights. The trial court entered its written orders on 28 June 2018. Father filed written notice of appeal on 11 July 2018.
Father contends that the trial court abused its discretion by preventing his attorney from making a closing argument at the end of the dispositional phase of the termination hearing. Father further contends that, as a result of the trial court disallowing closing arguments, he was deprived of his federal and state constitutional rights to be heard. Father further contends that he had a statutory right to make a closing argument, although he cites no statute granting this specific right.
While Father does not cite to a decision by our appellate courts or the United States Supreme Court explicitly recognizing the due process right of a parent to present a closing argument at the end of the dispositional phase of a termination of parental rights case, he does note generally this Court's statement that a parent is "entitled to an adequate opportunity to be heard regarding the termination of his parental rights." In re L.D.B., 168 N.C. App. 206, 209, 617 S.E.2d 288, 290 (2005). Father further notes that the "fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner," Matthews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 32 (1976) (citation and internal quotation marks omitted), and argues that this extends to a parent's ability to make an argument before his parental rights are terminated.
Although due process certainly requires a meaningful opportunity to be heard, Father was not denied this opportunity to present an opening argument, file a brief with the court, present evidence, object to evidence, cross-examine witnesses, file motions, testify, or present legal authority to the court. The only limitation imposed by the trial court was on closing arguments, and the trial court applied this limitation equally to both parties. This court has previously held that, "in a trial without a jury, argument of counsel is a privilege, not a right, which is subject to the discretion of the presiding judge." Roberson v. Roberson, 40 N.C. App. 193, 195, 252 S.E.2d 237, 238 (1979) (citation omitted). We explained:
It is a well-established principle of trial practice that control over the arguments of counsel is largely within the discretion of the presiding judge. Indeed, the power of the trial judge . . . to maintain absolute control of his courtroom is essential to the maintenance of proper decorum and the effective administration of justice. It may still be said that the judge Holds his court as a driver holds the reins, to govern, guide, restrain, except where he is himself
restrained by law. The only manner in which the trial judge is restrained by law with respect to the control over arguments by counsel is found in G.S. 84-14 [now re-codified at N.C. Gen. Stat. § 7A-97 (2017)] which applies to jury trials in the superior court. This provision would seem to control district court proceedings, when applicable, by virtue of [N.C. Gen. Stat. §] 7A-193, despite the fact that there is no specific reference to G.S. 84-14 in that section. The implication is clear that the legislature's failure to grant counsel the statutory right to argue to the court in nonjury matters left the authority to refuse to hear arguments within the discretion of the presiding judge.
Id. at 194-95, 252 S.E.2d at 238 (citations and internal quotation marks omitted).
Under Roberson, presentation of oral argument in a civil, non-jury trial is a "privilege, not a right" and is subject to the trial court's discretion. Id. at 195, 252 S.E.2d at 238; see also Whedon v. Whedon, 58 N.C. App. 524, 529-30, 294 S.E.2d 29, 33 (1982) ("Plaintiff acknowledges the general rule that 'counsel does not have an absolute right to argue in a civil, nonjury case. . . . [A]rgument of counsel [in such cases] is a privilege, not a right, which is subject to the discretion of the presiding judge.' " (quoting Roberson, 40 N.C. App. at 195, 252 S.E.2d at 238)).
In the circumstances of this case, where Father has not raised any other issue on appeal and has not challenged any of the trial court's findings of fact or conclusions of law, we cannot discern any abuse of discretion by the trial court in disallowing closing arguments. As the trial court noted, it has full discretion in determining whether termination of parental rights is in the best interests of the children. See, e.g., In re S.R., 207 N.C. App. 102, 110, 698 S.E.2d 535, 541 (2010) (applying an abuse of discretion standard on review). But we would caution that refusal to hear closing arguments is not be appropriate in all cases and should not be the usual practice. We understand that district court dockets are large and termination of parental rights hearings may be punishingly long. Even though the trial court has the discretion to eliminate closing argument in civil, non-jury trial, statements dismissing the value of any argument by counsel may be perceived by counsel, litigants, and the public as diminishing their ability to be fairly heard in court, particularly in a case involving termination of parental rights.
Since Father had no statutory or constitutional right to present a closing argument in this case and he has failed to show that the trial court abused its discretion by imposing this limitation on both parties, this argument is overruled. We therefore affirm the trial court's order.
AFFIRMED.
Judges STROUD and ZACHARY concur.
Report per Rule 30(e).