In Re the Adoption of P. E. P.

*204Judge DUNCAN

dissenting.

I

The Legislature cannot have intended that our adoption laws would permit this result. I recognize that a trial judge, who hears the testimony and observes the witnesses, is the person best able to find the facts of a case. When competent evidence supports those findings, moreover, they properly bind an appellate court, whose view of the case is limited to the cold record. Judge Ellis deserves commendation for his patient and thorough consideration of the fiercely conflicting evidence presented to him at trial. I cannot, however, agree with the conclusion he reached, and I cannot concur with the conclusion reached by the majority on appeal. In its best light, the record in this case shows a consistent and apparently deliberate failure to adhere to the laws of this State, a failure the courts should not sanction by any remote implication. By upholding this adoption, we necessarily reward a circumvention of the law, and, from that, I dissent.

One cannot look at any aspect of this case and come away untroubled. At the very least, there is a flagrant statutory violation. N.C. Gen. Stat. § 48-37 (1984) flatly declares that “No person . . . shall offer or give . . . compensation, consideration, or thing of value for receiving or placing, arranging the placement of, or assisting in placing or arranging the placement of, any child for adoption.” The majority states that —so long as Rogers’ allegations are accepted as true — Hargrave’s conduct “arguably” violated this statute. To the contrary, I believe it is inarguable upon the facts as found by the judge that § 48-37 was violated.

Hargrave’s dealings with Rogers began with his purchase of airline tickets to enable her to leave Michigan a step ahead of a process server and ended, following the birth and relinquishment of her child, with his giving her $1,500.00. (The one clearly erroneous finding in the record involved this last payment, which the trial judge thought to be for a lease, but which —as defendants’ counsel conceded at oral argument —was given Rogers in addition to the lease money.) While she was in North Carolina, Hargrave paid for Rogers’ room and board, gave her expense money, and paid part of her physician’s fees. Throughout all this, Hargrave was the attorney for the PEPs. The facts are disputed about who isolated Rogers from her family, but it is undisputed that she *205was not in contact with them while here and that, during this period, Hargrave paid her bills. His contention that he did so out of love for someone he hardly knew is inherently incredible. Hargrave’s munificence was either an instance of the kindness of strangers, or it was consideration for the child his clients adopted.

Standing alone, such a violation would prove troubling. But it does not stand alone. At virtually every turn, there are examples of proper procedure being bypassed so as to “speed things along.” The time period for revocation of consent was shortened on the consent form to 80 days. Rogers’ meeting with social worker Jane Maskey of the Orange County DSS took place while Rogers was experiencing contractions and was in physical discomfort. Maskey testified that because of Rogers’ condition, she (Maskey) “didn’t think it was the appropriate time to give [Rogers] counselling or anything else.” Following the child’s birth, the PEPs were allowed to leave North Carolina Memorial Hospital with the child in their ctistody. Gloria Rentrope, a clinical social worker with the hospital, testified that such a release is not in accord with normal hospital procedure and that it was a deviation she has allowed only three or four times during her twelve years there.

These procedural transgressions were further compounded. The majority holds that the question of notice is moot because Rowe had actual knowledge of the adoption. The notice issue, however, is noteworthy for another reason. According to Jane Maskey, when, as happened here, the director of Social Services is named as a child’s guardian for purposes of consent to an adoption, notice by publication is given in the county where the child was conceived. No one contends that PEP was conceived in Orange County, North Carolina, yet that is where Hargrave published notice. The consequence of this procedural glitch was anything but harmless. In Maskey’s view, DSS “would have said we don’t want the interlocutory entered until we give this person in Michigan a chance to come forward if he’s going to come forward; and we wouldn’t have expected him to come forward [if notice were given] in Orange County.”

Maskey testified that, had DSS been aware of them, the irregularities in this case would have resulted in the interlocutory’s not being entered prior to the expiration of 90 days from the birth of the child. Well within this 90-day period, Rogers filed her Motion for Relief From Interlocutory Decree. In short, had proper procedure — including proper notice procedure — been followed, *206Rogers would have been afforded adequate time to revoke her consent, and would have done so within the allowable period.

I agree that procedural defects should not outweigh the best interests of the child. The procedural irregularities in this case, however, seem purposeful, and designed to facilitate — as indeed happened —a “quick” and irrevocable adoption. Rogers may not be the victim of fraud, and any single procedural aberration, looked at in isolation, may not appear to be sufficient to void the adoption. When viewed together, however, the defects in this case are substantial and serious enough that we set a dangerous precedent by holding that this adoption may stand in spite of them. For public-policy reasons, to say to future parties that the courts of North Carolina will not endorse conduct that suggests a child was purchased, I would reverse the order of the trial judge. The majority’s warning of tragic consequences comes, in this case, too late.

II

At the very least, I would remand this case for additional findings.

First, I believe the judge erred by excluding the testimony of Cynthia Kisser as to the alleged behavioral-modification practices of The Way International. The judge sustained defendants’ objection that Kisser’s expertise did not conform to an area of generally accepted explanatory theory and that her testimony was not relevant. The majority holds that the judge ruled correctly because “plaintiffs made no effort to establish that Ms. Kisser’s purported area of expertise has received general acceptance in relevant academic or scientific communities . . . .” However,

[ejxpert testimony is properly admissible when it can assist the [trier of fact] in drawing certain inferences from facts and the expert is better qualified than the [trier of fact] to draw such inferences. It is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist, licensed, or even engaged in a specific profession. This Court has not adhered exclusively to the view that expert testimony must be based upon ‘generally accepted’ scientific methods. It is enough that the expert witness ‘because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.’

*207State v. Evangelista, 319 N.C. 152, 163-64, 353 S.E.2d 375, 383-84 (1987) (citations omitted). It is the reliability of the scientific method, and not its popularity within a scientific community, that is the relevant focus. State v. Bullard, 312 N.C. 129, 149, 322 S.E.2d 370, 381-82 (1984). The judge, of course, enjoys “wide latitude of discretion” when deciding whether to allow expert testimony. Evangelista, 319 N.C. at 164, 353 S.E.2d at 384. That discretion, however, must be exercised in light of the correct standard. Accordingly, I would remand for a proper finding as to Kisser’s qualifications and, if she is found to be qualified, for additional findings of fact that include a consideration of her testimony.

Second, I respectfully disagree with the majority that the exclusion of evidence about the practices of The Way International was “harmless in th[e] context” of determining PEP’s best interests. In determining a child’s best interests, the judge may properly consider the parents’ religious beliefs and practices. Cf. In re Custody of King, 11 N.C. App. 418, 419, 181 S.E.2d 221, 221 (1971) (in finding changed circumstances, trial judge entered finding that mother participated in local church activities); see Rogers v. Rogers, 490 So.2d 1017, 1019 (Fla. Dist. Ct. App. 1986) (adopting holding of Alabama Supreme Court that beliefs and practices may be considered as factor in custody determination, but award of custody may not be conditioned on restriction of parent’s First Amendment rights); see generally Annotation, Religion as Factor in Child Custody and Visitation Cases, 22 A.L.R.4th 971 (1983). In this case, every relevant factor should have been considered, and I would not hold that the failure to do so was harmless.