IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19

- 1019

Filed: 1 December 2020

Mecklenburg County, No. 17 E 3602

IN THE MATTER OF: R.D.B. , A MINOR CHILD

Appeal by petitioners from order entered 9 April 201 9 by Judge Carla Archie

in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 August

2020.

James, McElroy & Diehl, P.A., by Preston O. Odom, III, and Jon R. Burns, for petitioners

- appellants Ruby and Caleb Har kness

.
Kip David Nelson for appellee Raymond Mann

.

ZACHARY, Judge.

Petitioners Ruby and Caleb Harkness appeal from the superior court’s order

affirming the a ssistant c lerk of c ourt ’s order appointing Raymond Mann to serve as

the guardian of the minor child, R.D.B. (“ Robert ”)

. 1 After careful review, w e affirm.

Background

Robert was born in September 2010

. Robert’s father died intestate on 4 August

2013. F rom 2011 to 2014

, Robert and his mother, Tracee

, lived with the Harknesses,

Tracee’s parents, in Georgia; in 2014, they moved in with Raymond Mann , Tracee’s

boyfriend, in Charlotte, North Carolina

. About a year later, Tracee and Raymond

1 We employ a pseudonym to protect the identity of the juvenile

.I N RE : R.D.B.

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- were married

. O n 1 October 2017

, Tracee died intestate , leaving Robert with no living

biological parents , and thus n o natural guardian

. Robert continued to reside in

Charlotte with Raymond after Tracee’s passing.

On 31 October 2017, the Harknesses filed a guardianship a pplication with the

Mecklenburg County Clerk of Superior Court , seeking appoint ment as general

guardian s of Robert

. The Harknesses named Raymond as a person “ known to have

an interest in this proceeding,” and on 8 November 2017, a Mecklenburg County

Sheriff’s deputy served Raymond with a copy of the Harknesses’ application and a

notice of hearing On 22 November 2017, the assistant clerk 2 entered an order

appointing a guardian ad litem for Robert.

In June 2018

, o ver the course of six days

, the guardianship case was tried

before the assistant clerk

. O n 11 July 2018

, the assistant clerk entered an order

appointing Raymond to serve as Robert’s guardian. The Harknesses gave timely

notice of appeal to the Mecklenburg County Superior Court , pursuant to N.C. Gen.

Stat. § 1

- 301.3(c)

.

O n 15 January 2019

, the Harknesses’ appeal came on for heari ng before the

Honorable Carla Archie in Mecklenburg County Superior Court

. T he Harknesses

argued that the assistant clerk erred by (1) failing to “ consider any statements that

2 “An assistant clerk is authorized to perform all the duties and functions of the office of clerk of superior court, and any act of an assistant clerk is entitled to the same faith and credit as that of the clerk.” N.C. Gen. Stat. § 7A

- 102(b) (2019).I N RE : R.D.B.

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- were purportedly made by the minor child to anyone other than a guardian ad litem,

or to a therapist, regarding what his preferences were in this case

, ” particularly

“ anything that the child said to any grandparents, any aunts, [or any] uncles” ; (2)

“allow [ing] virtually most all statements made or purported to be made to witnesse s

in this case by Tracee Mann, the deceased mother” ; and (3) a dmitting the testimony

of Che ’ Landra Moore

- Quarles, a licensed professional counselor, as an “expert in grief

counseling

. ”

On 9 April 2019, the superior court entered an order affirming the assi stant

clerk’s appointment of Raymond as guardian. The superior court concluded

, inter

alia

, that t he minor guardianship hearing was held before the assistant clerk in

accordance with s ection 35A

- 1223 of our General Statutes , “to which the North

Carolina Rules of Evidence do not apply.” In addition, the superior court concluded

that “[t]here was no prejudicial error in the admission or exclusion of evidence” at the

hearing. The Harknesses timely notice d their appeal of the su perior court’s order

.

Discussion

The Harknesses raise two arguments on appeal to this Court . They contend

that (1) “[t]he superior court reversibly erred in concluding that the North Carolina

Rules of Evidence do not apply to this Guardianship Action”; and (2) “[t]he superior

court reversibly erred in concluding that the clerk did not commit prejudicial error in

admitting and/or excluding evidence at trial [

. ] ”I N RE : R.D.B.

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- I. Standard of Review

This Court has held that section 1

- 301.3 of our General Statutes governs the

standard of review for an appeal arising from an order appointing a guardian. In re

Winstead , 189 N.C. App. 145, 151, 657 S.E.2d 411, 415 (2008)

. Pursuant to this

statute, th e clerk “shall determine all issues of fact and law,” and “shall ente r an

order or judgment, as appropriate, containing findings of fact and conclusions of law

supporting the order or judgment.” N.C. Gen. Stat. § 1

- 301.3( b ).

“ When a party appeals a judgment or order entered by the clerk of court to the

superior court , the trial court sits as an appellate court.” In re Taylor , 242 N.C. App.

30, 34, 774 S.E.2d 863, 866 (2015) (citation and internal quotation marks omitted).

Under section 1

- 301.3, when s itting as an appellate court,

the superior court shall review the order or judgment of the clerk for the purpose of determining only the following:

(1) Whether the findings of fact are supported by the evidence. (2) Whether the conclusions of law are supported by the findings of facts. (3) Whether the order or judgment is consistent with the conclusions of law and applicable law.

N.C. Gen. Stat. § 1

- 301.3(d). “ If the judge finds prejudicial error in the admission or

exclusion of evidence, the judge, in the judge ’ s discretion, shall either remand the

matter to the clerk for a subsequent h earing or resolve the matter on the basis of the

record. ” Id.I N RE : R.D.B.

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- “ The standard of review in this Court is the same as in the Superior Court. ” In

re Estate of Johnson

, 264 N.C. App. 27, 3 2

, 824 S.E.2d 857, 861 (2019) (citation

omitted). The superior court’s r eview is limited to “those findings of fact which the

appellant has properly challenged by specific exceptions

. ” In re Estate of Whitaker

,
179 N.C. App. 3 7 5, 382, 633 S.E.2d 849, 854 (2006) (emphasis omitted) (citation and

internal quotation marks omitted). “ Unchallenged findings of fact are presumed to be

supported by competent evidence and are binding on appeal. ” In re Estate of Harper

,

___ N.C. App.

___, ___, 837 S.E.2d 602, 604 (2020) (citation and internal quotation

marks omitted).

II. The Rul es of Evidence

The Harknesses first challenge the superior court’s conclusion of law that “ the

North Carolina R ules of E vidence do not apply ” to minor guardianship hearings

governed by section 35A

- 1223

.
Chapter 35A of our General Statutes provides that “ [ a ] ny person or

corporation, including any State or local human services agency[,]” may apply “for

the appointment of a guardian of the person or general guardian for any minor who

[does not have a] natural guardian

. ” N.C. Gen. Stat. § 35A

- 1221. T he clerk of superior

court will then conduct a hearing “ to determine whether the appointment of a

guardian is required, and, if so, consider [ ] the child ’ s best interest in determining

who the guardian (s) should be

. ” Corbett v. Lynch , 251 N.C. App. 40, 42 , 795 S.E.2dI N RE : R.D.B.

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- 564, 565 (2016) (citing N.C. Gen. Stat. § 35A

- 1223)

. At the guardianship hearing, the

clerk may receive a broad array of evidence:

If the court determines that a guardian or guardians are required, the court shall receive evidence necessary t o determine the minor ’ s assets, liabilities, and needs, and who the guardian or guardians shall be. The hearing may be informal and the clerk may consider whatever testimony, written reports, affidavits, documents, or other evidence the clerk finds necessa ry to determine the minor ’ s best interest

.
N.C. Gen. Stat. § 35A

- 1223

.

The Harknesses argue that “[a] plain reading ” of section 35A

- 1223, as well as

“ the superior court’s standard of review for the appeal from an order awarding

guardianship of a minor

, ” make clear that the Rules of Evidence appl y to such

hearings

. We agree

— albeit for different reasons.

It is axiomatic that “[t]he primary goal of statutory construction is to arrive at

legislative intent.” Alberti v. Manufactured Homes, Inc. , 329 N.C. 727, 732, 407

S.E.2d 819, 822 (1991). In the case at bar, the legislative intent is manifest.

Our Rules of Evidence “govern proceedings in the courts of this State to the

extent and with the exceptions stated in Rule 1101.” N.C. Gen. Stat. § 8C

- 1, Rule 101.

Ru le 1101 states that “[e]xcept as otherwise provided in subdivision (b) or by statute,”

the R ules of E vidence “apply to all actions and proceedings in the courts of this State.”

I d. § 8C

- 1, Rule 1101(a).I N RE : R.D.B.

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- Subdivision (b) provides that the R ules of E vidence

, other than those

respecting privileges, are inapplicable in certain listed situations :

(1) Preliminary Questions of Fact.

-- The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a). (2) Grand Jury.

-- Proceedings before grand juries. (3) Miscellaneous Proceedings.

-- Proceedings for extradition or rendition; first appearance before district court judge or probable cause hearing in criminal cases; sentencing, or granting or revoki ng probation; issuance of warrants for arrest, criminal summonses, and search warrants; proceedings with respect to release on bail or otherwise. (4) Contempt Proceedings.

-- Contempt proceedings in which the court is authorized by law to act summarily.

Id. § 8C

- 1, Rule 1101(b). Minor g uardianship proceedings pursuant to section 35A

1223 are not included in Rule 1101(b) ’s enumerated exceptions.

In addition, the General Assembly did not “otherwise provide [ ] . . . by statute

, ”

i d. § 8C

- 1, Rule 1101(a)

, that the Rules of Evidence would not apply to minor

guardianship proceedings pursuant to section 35A

- 1223. In particular, there is no

mention of the Rules of Evidence in C hapter 35A of our General Statutes

,
“Incompetency and Guardianship.”

Moreover, our statutes contain numerous examples of instances in which o ur

General Assembly has specifically excepted certain proceedings from the Rules of

Evidence , which it failed to do with regard to minor guardianship hearings

. See, e.g.

,

id. § 7B

- 901( a) ( initial dispositional hearing s in juvenile action s under Chapter 7B ) ;I N RE : R.D.B.

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- i d. § 20

- 9(g)(4)(d) ( hearings to review th e restriction, cancellation, or denial of a

driver’s license

, due to a person’s physical or mental disability or disease ); i d. § 115C

325(j)(4) ( hearings upon a superintendent’s recommendation for the dismissal or

demotion of a public

- school teacher who is a “career employee ,” as defined by N.C.

Gen. Stat. § 115C

- 325(a)(1a) )

.

In that the legislature did not except Chapter 35A minor guardianship

proceedings from the application of the Rules of Evidence in Rule 1101(b) or by other

statute, we conclude that the legislature intended for the Rules of Evidence to apply

to minor guardianship pro ceedings. Accordingly, the Rules of Evidence apply to minor

guardianship proceedings under section 35A

- 1223

, and t he trial court erred by

concluding otherwise

. Cf. State v. Foster , 222 N.C. App. 199, 203, 729 S.E.2d 116, 119

(2012) ( holding that

, because “ motions for post

- conviction DNA testing are not listed

as an exception while the Rules of Evidence specifically list other exceptions

, the

Rules of Evidence apply to [ such ] motions or proceedings ” ).

Nevertheless , for this to constitute reversible error, it must have been

prejudicial to the Harknesses

. See N.C. Gen. Stat. § 1

- 301.3(d) ; s ee also In re Estate

of Tucci , 104 N.C. App. 142, 151, 408 S.E.2d 859, 865 ( 1991 ) (“ A party asserting error

on appeal must show from the record that the trial court committed error, and that

he was prejudiced as a result. ”), disc. review improvidently allowed , 331 N.C. 749, 417

S.E.2d 236 (1992).I N RE : R.D.B.

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- I II . Prejudice

The Harknesses assert that “ the superior court wrongly found no prejudicial

error” in the assistant clerk’s evidentiary rulings (1) excluding testimony of Robert’s

statements to others ; (2) admitting testimony of Tracee’s statements to others ; and

(3) admitting the expert testimony of Che ’ Landr a Moore

- Quarles, a licensed

counselor who treats “ a variety of mental health issues including depression, grief,

trauma and substance abuse.” In so arguing, the Harknesses challenge (1) the

superior court’s findings of fact 9 and 10 (uph o ld ing the assistant clerk ’s findings of

fact 13 and 26, respectively); (2) the superior court’s finding of fact 13 ( upholding the

assistant clerk ’s finding of fact 34) ; 3 and (3) the superior court’s findings of fact 19

and 20 (upholding the assistant clerk ’s acceptance of Moore

- Quarles as an expert

witness

, and the assistant clerk ’s finding of fact 27).

As previously stated, our review is limited to “those findings of fact which the

appellant has properly challenged by specific exceptions

. ” Estate of Whitaker , 179 N.C.

App. at 382, 633 S.E.2d at 854 (citation and internal quotation marks omitted) . The

remaining “[ u ] nchallenged findings of fact are presumed to be supported by

competent evidence and are binding on appeal. ” Estate of Harper

,

___ N.C. App. at

___, 837 S.E.2d at 604 (citation and internal quotation marks omitted).

3 The Harknesses argue that the assistant clerk’s finding of fact 36 is also “ expressly based at least in part on this error

, ” but they fail to challenge on appeal the superior court’s finding of fact 17, which upheld

, inter alia

, the assistant clerk’s finding of fact 36. Nevertheless, as illustrated below, excluding the assistant clerk’s finding of fact 36 does not change our analysis.I N RE : R.D.B.

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- The assistant clerk ’s order contains 39 findings of fact. On appeal to the

superior court, the Harknesses initially challenged 14 of those findings of fact, before

withdrawing four of these challenges by the time of the superior court hearing. The

superior court thus considered, and upheld in its order

, ten of the assistant clerk’s

findings of fact. Before this Court, the Harknesses specifically challenge only five of

the superior court’s findings of fact

— four of which up hold the assistant clerk’s

findings of fact

, and one which uphold s her acceptance of Moore

- Quarles as an expert

witness.

Of the findings of fact in the assistant clerk’s order that the Harknesses never

specifically challenge d or that the superior court upheld in findings of fact that the

Harknesses do not specifically challenge on appeal

, we note the following :

18. The minor child is a member of a large, extended family inclusive of [ Raymond ]

, the Harknesses

, his maternal sibling and relatives, his paternal siblings and relatives

. . . , [ Raymond ]’s relatives

, and close friends of [ Raymond and Tracee ].

. . . .

2 4

. [Robert] lived with his mother and [ Raymond ] in [ Raymond ] ’s home in Charlotte, North Carolina from 2014 until [ Tracee ] ’s death.

25. [ Raymond ] has played a significant role in [Robert]’s life since [ Robert and Tracee ] moved to Charlotte. [ Raymond ] assisted [ Tracee ] in providing care, support and supervision of [Robert]

.

. . . .I N RE : R.D.B.

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- 28. [ Raymond ] is gainfully employed and provides for [Robert]’s basic needs and extracurricular activities.

29. [ Raymond ] is knowledgeable about [Robert] ’s medical history and takes [him] to wellness appointments

. [ Raymond ] also maintains medical and dental insurance for [Robert]

.

30. [ Raymond ] is knowledgeable about [Robert] ’s educational needs and progress. [ Raymond ] previously enrolled [Robert] in school tutoring and [ Raymond ] has assisted [Robert] with his homework and special school projects.

31. [ Raymond ] opened a 529 Education account for [Robert] and

. . . makes monthly contributions to that account.

32. [ Raymond ] demonstrates an active interest in [Robert] ’s interests, activities and friendships. [ Raymond ] has coached [Robert] ’s basketball team for thr ee years.

33. [ Raymond ] has demonstrated respect and support of [Robert] ’s relationship with his siblings and relatives. [ Raymond ] and [Robert] participated in a Balloon Release
to honor the memory of [Robert’s] late [father]

. [ Raymond ] allowed [Robert] t o attend a summer family event with [his late father’s] family.

. . . .

35. [Petitioner Ruby ]

. . . expressed appreciation for the role Raymond

. . . played in her daughter’s and grandchildren’s lives.

The assistant clerk also made three unchallenged findings regarding Robert’s

best i nterest with respect to the appointment of a guardian:

37. The best interest of [Robert] would be best promoted by the appointment of a guardian of person who will supportI N RE : R.D.B.

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- [his] ongoing development and physic al, emotional, and social wellbeing.

38. The best interest of [Robert] would be best promoted by the appointment of a guardian of person who will ensure that [he] has appropriate contact with members of [his] diverse and extended family, inclusive of the Harknesses

, [Robert’s father’s] family, [ Raymond ]

, [ Raymond ]’s relatives, and close friends of [ Raymond and Tracee ]

.

39. The best interest of [Robert] would not be promoted by appointing multiple guardians of the person, a guardian of estate, or a general guardian.

O ur review of the voluminous record evinces substantial support for the

assistant clerk’s decision to appoint Raymond to serve as Robert’s guardian, as well

as the superior court’s order affirming Raymond’s appointment. Moreover, a ssuming,

arguendo , that the superior court erred by making the challenged findings of fact that

upheld the assistant clerk’s challenged findings of fact, the Harknesses have not

shown that they were prejudiced by these errors. Even if we were to exclude the

evidenc e that the Harknesses challenge on appeal, together with the challenged

findings of fact supported by that evidence, the remaining unchallenged findings of

fact amply support the remaining conclusions of law, which ultimately support the

assistant clerk’s appointment of Raymond as Robert’s guardian and the superior

court’s affirmance of that appointment

.

As regards the acceptance of Moore

- Quarles as an expert witness, assuming,

arguendo , that the trial court erred, the Harknesses ’ argument lacks merit in sofar as

they have not shown prejudice

.I N RE : R.D.B.

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- The Harknesses assert that the admission of Moore

- Quarles’ testimony,

“ including her purported expert opinions about how the minor child sees his life and

whether his current environment should change, ” amounted to prejudicial error

.

However, Moore

- Quarles was not mentioned with any detail in the assistant clerk ’s

order. T he superior court stated in its finding of fact 20

— which the Harknesses

challenge on appeal

— that the assistant clerk “ gave little weight to Ms. Moore

Quarles’ testimony, as the only [finding of fact] regarding her involvement was that

the minor child attended grief sessions. ” In that sole finding of fact, the assistant

clerk stated that Raymond enrolled Robert in grief th erapy sessions and that both

parties “had opportunities to speak with the therapist about [Robert’s] progress

. ”

Moreover

, there is no description of that progress in the assistant clerk’s order, nor is

there any mention of Moore

- Quarles’ opinion s

. It is ev ident that the assistant clerk

relied very little, if at all, on Moore

- Quarles’ testimony in making her decision. Thus,

the Harknesses can show no prejudice from the admission of Moore

- Quarles’

testimony. See Woncik v. Woncik , 82 N.C. App. 244, 249, 346 S.E.2d 277, 280 (1986)

( “[W]e fail to see the prejudice to plaintiff . . . , especially since the trial judge made

no reference to [the expert’s] testimony in his order; thus, we may presume that the

testimony played no role in his decision.”).

Although the assistant clerk made other findings of fact that could have

supported the appoint ment of the Harknesses to serve as Robert’s guardian s , theI N RE : R.D.B.

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- unchallenged findings of fact more than sufficiently support the assistant clerk’s

order appointing Raymond to serve as Robert’s guardian. Despite the superior court’s

erroneous conclusion of law regarding the applicability of the Rules of Evidence, the

Harknesses have not shown that they were prejudiced by that error, or by any

resultant erroneous admis sion or exclusion of evidence

.

Conclusion

The superior court improperly concluded that the Rule s of Evidence do not

apply to minor guardianship hearings governed by section 35A

- 1223

. However, for

the foregoing reasons , any alleged errors arising from the assistant clerk ’s

evidentiary rulings did not prejudice the Harknesses

. Accordingly, w e affirm the

superior court’s order affirming the appointment of Raymond Mann as Robert’s

guardian

.

AFFIRMED.

Chief Judge McGEE and Judge HAMPSON concur.