1. Evidence_hearsay_report of abuse--nonhearsay purposes--not used in findings
Testimony by a county DSS employee about a report containing statements by a child
concerning alleged sexual abuse of her by her stepfather did not constitute inadmissible hearsay in
a child abuse proceeding against the child's mother and stepfather where the testimony was admitted
to explain the origin of the DSS investigation and to rebut the contention that the child's allegations
were fabricated. Furthermore, even if testimony by the witness that the alleged acts occurred
“multiple times” constituted impermissible hearsay, the admission of this testimony was not
prejudicial because the trial court did not rely thereon in making its findings and conclusions.
2. Evidence_threat to victim--hearsay_other evidence_not prejudicial
Testimony by an employee of the county DSS about a threat to a child sexual abuse victim
if she spoke of the abuse was hearsay, but was not prejudicial because there was other substantial
evidence of the abuse and neglect.
3. Evidence_hearsay_not considered for truth of matter
A hearsay statement regarding the sexual abuse of a child was not considered for the truth
of the matter, but to provide context and history to the DSS interaction with the abuser.
4. Evidence_hearsay_sexual abuse of another--corroboration
Testimony by a DSS investigator from another county relating a granddaughter's statements
about sexual abuse of her by her grandfather was not inadmissible hearsay but was properly admitted
for corroboration in a proceeding for the abuse of the grandfather's stepdaughter by the grandfather
and the child's mother.
5. Evidence_hearsay_medical diagnosis_ordinary course of business
The testimony of a pediatrician about a child sexual abuse victim was admissible under the
medical diagnosis and ordinary course of business exceptions to the hearsay rule.
6. Evidence_hearsay_statements to mental health professional
Statements of child sexual abuse victims to a mental health professional were made for the
purpose of diagnosis and treatment and were admissible.
7. Child Abuse and Neglect_sufficiency of evidence
The evidence of neglect and abuse was sufficient to deny a motion to dismiss.
8. Child Abuse and Neglect_dispositional evidence_admitted at adjudication_one set of
findings
There was no prejudicial error from the receipt of dispositional reports and testimony during
a hearing to adjudicate the abuse and neglect of children. There was substantial evidence uponwhich the court could conclude that the children were abused and neglected, and the court used one
set of findings to support both the adjudication and dispositional orders.
9. Child Abuse and Neglect_expert testimony_credibility of child
Expert testimony about whether sexual abuse was likely to have occurred did not improperly
bolster the credibility of the minor child. Neither doctor testified that the abuse in fact occurred or
that the child was being truthful, there was no showing that the court did not understand the
difference between testimony that symptoms were present and testimony that abuse occurred, and
there was no showing that the court thought that the testimony bolstered the child's credibility.
10. Evidence_expert testimony_foundation
There was a proper foundation for medical testimony in a child abuse and neglect case.
Judge TYSON concurring in part and dissenting in part.
Appeal by Margaret and Paul Mashburn from Adjudication and
Dispositional Order entered 25 June 2001 by Judge Marvin Pope in
District Court, Buncombe County. Heard in the Court of Appeals 9
September 2003.
Peter Wood for Margaret Mashburn.
Paul Pooley for Paul Eugene Mashburn.
Judy N. Rudolph for the Guardian Ad Litem.
John C. Adams for the Department of Social Services.
WYNN, Judge.
This appeal arises from the trial court's order finding two
children, a ten-year-old male and a fifteen-year-old female, were
abused and neglected by their parents--Margaret Mashburn (natural
parent of both children) and Paul Eugene Mashburn (step-parent of
the female child and natural parent of the male child). In her
appeal, Margaret Mashburn argues the trial court erred by admitting
hearsay testimony and denying her motion to dismiss. In his
appeal, Paul Mashburn argues the trial court erred by considering
dispositional reports and testimony during the adjudicationhearing, and admitting improper expert opinion testimony. After
careful review, we affirm.
In its Order, the trial court found “that [the female child]
disclosed that Paul Mashburn committed a sexual act on her.” The
trial court further found “that Paul Mashburn denies the sexual
abuse of [the female child]; confirmed sexual allegations made in
Arkansas to which he pleaded nolo contendre
(See footnote 1)
; . . .[and] admitted
that he used a paddle on the bottoms of [the male child's] feet as
a discipline measure” when the child was about five years old. The
trial court further found: “When Margaret Mashburn was told of the
sexual abuse of [the female child] during a meeting at the Buncombe
County Department of Social Services, she slammed her hand down on
the table; denied any abuse; and, stated that [the female child]
has been lying for years about abuse.”
In its factual findings, the trial court fully incorporated
the children's child medical examinations, in which Dr. Cynthia
Brown opined “that it is highly likely that the [female child] was
sexually abused.” During one examination, Dr. Brown detected in
[the female child] “a bacterial infection that was likely the
result of a sexual act [but that] penetration is not required for
a vaginal infection such that [the female child] presented.”
The medical examination revealed that the male child was
“reluctant to have a genital examination, but disclosed that he wasspanked with a black paddle [on the bottoms of his feet] by Paul
Mashburn.”
The trial court also incorporated the report of the children's
therapist, Dr. Rusty Harris who testified that “[the male child].
. . is three years developmentally disabled . . . that [he] soils
his pants after visits with his mother
(See footnote 2)
. . . and that it is not in
[his] best interest to be returned to the home because there is no
acknowledgment by the parents of wrongdoing in the harsh discipline
they inflicted on the child.”
As to the female child, Dr. Harris testified, and the trial
court found as fact that “[the female child] displays sexually
reactive behaviors . . . that it is not in [her] best interest to
be returned to the home as Margaret Mashburn does not believe the
abuse occurred and cannot protect the child from further abuse by
Mr. Mashburn.”
Based on these and other facts, the trial court concluded, as
a matter of law, that “[the female child] is a physically and
sexually abused and neglected child pursuant to N.C.G.S. § 7B-
101(1)(15) in that [she] was sexually abused by Paul Mashburn . .
. the child's mother was aware of previous allegations of sexual
abuse of [the female child] and did not protect the child from
further abuse; the child did not receive the proper care andsupervision from her mother and lived in an apartment injurious to
her welfare due to harsh discipline and sexual abuse.”
The Court similarly found as a matter of law that the male
child “is a physically abused and neglected child . . . in that;
discipline with a paddle on the sole's of a child's feet is most
inappropriate and cruel punishment; that he did not receive proper
care and supervision from his mother and lived in an environment
injurious to his welfare due to harsh discipline by his mother and
Paul Mashburn and he lived in a home where his sibling had been
sexually abused by Paul Mashburn.”
The trial court concluded that since “continuation of the
minor children in the home would be contrary to the welfare of the
minor children; the children's placement and care are the
responsibility of the Buncombe County Department of Social
Services,” which it relieved of reunification responsibilities for
either child with Paul Mashburn and the female child with Margaret
Mashburn.
From these factual and legal conclusions and the resulting
removal of both children from the care of the custodial parents,
Margaret and Paul Mashburn, both parents appeal.
“Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. However, out of court statements
offered for purposes other than to prove the truth of the matter
asserted are not considered hearsay.” State v. Carroll, 356 N.C.
526, 542, 573 S.E.2d 899, 910 (2002).
The record on appeal shows that Linda Sweat of the Buncombe
County DSS, investigates allegations of child abuse by reading
abuse and neglect reports and interviewing the parties involved in
the report. On March 2, 2001, Ms. Sweat reviewed a report about
the children at issue and commenced an investigation into the
allegations by interviewing the female child at her school. Thus,
while the statements at issue were made by an out-of-court
declarant--the female child--such statements would be outside the
scope of Rule 802 if offered for a non-hearsay purpose. Therefore,Ms. Sweat's description of the report, containing the female
child's description of the stepfather's abuse of her, would not
constitute inadmissible hearsay because it explained why the
Buncombe County DSS commenced an investigation and was also offered
to rebut the implication that the female child fabricated abuse
allegations.
Margaret Mashburn also contends the following testimony
elicited from Ms. Sweat was improperly admitted because it
contained inadmissible hearsay:
Q: All right. Did that report indicate how
often the alleged acts occurred?
A: No, but in the course of the investigation
I found that it happened multiple times.
Q: All right. Did your investigation reveal
whether or not either minor child had been
threatened if they disclosed these events?
A: Yes.
Q: All right. What was the nature of that?
A: What I understood was that [the female
child] was told that she would be beaten to
death...Paul Mashburn told her that.
As to this testimony, we initially note that the trial court's
findings of fact and conclusions of law show that the trial court
did not include any references to multiple instances of sexual
abuse. Thus, even assuming the “multiple times” testimony
constituted impermissible hearsay, no prejudicial error was
committed as the trial court did not rely upon such statements in
rendering its findings of fact and conclusions of law.
[2] However, in Finding of Fact 4, the trial court stated “Mr.
Mashburn later told [the female child] that if she ever told aboutthe incident he would beat her to death.” Our review of the
transcript indicates that Ms. Sweat learned this information during
the course of her investigation and not during the initial
interview that lead to the investigation. Moreover, there is no
indication that this statement was entered for anything other than
for the truth of the matter asserted. After careful analysis, we
conclude that this testimony was not admissible under any hearsay
exceptions. Accordingly, it was error for the trial court to admit
this statement and to rely upon it in rendering its Findings of
fact and conclusions of law. However, because the allegations of
abuse and neglect were supported by substantial evidence, we
conclude the erroneous admission of Ms. Sweat's testimony was
harmless.
[3] In her final argument regarding Ms. Sweat, Margaret
Mashburn challenges the following testimony regarding Paul
Mashburn's granddaughters:
One of Rachel's--or both of Rachel's
daughters, who are five and six years old,
disclosed sexual--a lot of sexual activity.
The youngest one also disclosed specifically
that she often is tickled by her grandfather.
Q: Who is her grandfather?
A: Paul Mashburn. And she demonstrated on a
doll that she is tickled in the crotch.
After reviewing the record and transcript, we conclude the trial
court did not consider this testimony for the truth of the matter
asserted. Indeed, Finding of Fact 5 stated:
That the Court did not consider records from
Arkansas and Oklahoma as submitted by the
Buncombe County Department of Social Services,
but will find that a pending case is open with
the North Carolina Yancey County Department of
Social Services on [the] grandchildren of Paul
Mashburn. [One granddaughter] disclosedsexualized behaviors at school; [the other
granddaughter] disclosed the “crotch tickle”
whereby Mr. Mashburn tickled her vaginal area;
the allegations from [one granddaughter] were
substantiated and the investigation on [the
other granddaughter] continues. The Buncombe
County Department of Social Services has had
numerous reports on Paul Mashburn between 1994
and 1999, but none were substantiated.
As the findings of fact indicate Ms. Sweat's testimony regarding
Paul Mashburn's alleged abuse of his granddaughters was not
considered for the truth of the matter asserted; but rather, to
provide the history and context of the Department of Social
Service's interaction with Paul Mashburn, we conclude it was not
error for the trial court to admit such testimony.
[4] In her next argument, Margaret Mashburn contends the
following testimony from Ms. Debbie McKinney constituted
inadmissible hearsay:
In an interview with [a granddaughter] she
reported that she liked to go to her
grandparents' home, that she liked to sit in
Grandpa's chair and that she liked to sit in
Grandpa's lap, and she liked it when he
tickled her ... She described the tickling as
starting with her chest area and she moved
down towards her vaginal area.
Ms. McKinney, of the Yancey County DSS, investigates neglect and
abuse allegations. Yancey County opened an investigation regarding
abuse allegations against Paul Mashburn around the same time as the
beginning of the Buncombe County investigation. Our review of the
transcript indicates Ms. McKinney's testimony related to the nature
of Yancey County's investigation, which was not yet complete. Such
testimony was not entered for the truth of the matter asserted; but
rather, served as corroboration of Ms. Sweat's testimony regarding
Paul Mashburn's history with the Department of Social Services. Indeed, during Ms. Sweat's testimony regarding the Yancey County
investigation, Margaret Mashburn's counsel objected to its
admissibility. In response, the attorney for DSS indicated they
would be offering Ms. McKinney's testimony as corroboration.
Accordingly, the trial court did not err in admitting Ms.
McKinney's testimony.
[5] Margaret Mashburn next contends the trial court erred by
allowing the hearsay testimony of Dr. Cynthia Brown, an expert
pediatrician.
(See footnote 3)
Dr. Brown performed a child medical exam on the
female child on March 13, 2001. As part of the child exam in cases
of abuse, the female child was also interviewed by “the nurse in
our program who has been trained to do these medical histories.”
The Health Center maintains a transcript of such interviews in the
ordinary course of business. During direct examination, Dr. Brown
confirmed that before the female child's interview:
[I]t is explained to the child that it is
important for the physician to know everything
about the child. We also document their
understanding of that concept, their
understanding of the difference between
telling the truth and telling lies, so that
they understand that what they tell us will
aid us in doing our physical examination.
Over objections, Dr. Brown recounted a portion of the female
child's interview:
[The female child] disclosed that her
stepfather would come into her room and get on
top of her and move around. She said the
first time she recalled this happening she was
around seven. That was right before she moved
up there and she knew she was about to turn
eight. She disclosed that he also had touchedher breasts. She recalled that the last time
this had happened had been in the previous
November. She expressed concern about being
pregnant or having infections. She also noted
that when this happened the last time she felt
wetness and pointed to her -- above her
genital area down to between her thighs. She
also noted that it hurt to pee after this
event. She also disclosed that she had been
tested for this previously when she was
younger and that the test was negative, and
that since that time her mother had not
believed her about any of this.
Our review of Dr. Brown's testimony reveals that it was
admissible under the medical diagnosis exception to the rule
against hearsay. In State v. Hinnant, 351 N.C. 277, 523 S.E.2d
663, (2000) our Supreme Court held that statements made for the
purposes of medical diagnosis and treatment can be admissible even
if hearsay under Rule 803(4) if two inquiries are satisfied:
First, the trial court must determine that the declarant
intended to make the statements at issue in order to
obtain medical diagnosis or treatment. The trial court
may consider all objective circumstances of record in
determining whether the declarant possessed the requisite
intent. Second, the trial court must determine that the
declarant's statements were reasonably pertinent to
medical diagnosis or treatment.
Hinnant, 351 N.C. at 289, 523 S.E.2d at 670-71. “Some factors to
consider in determining whether a child had the requisite intent
are whether an adult explained to the child the need for treatment
and the importance of truthfulness; with whom and under what
circumstances the declarant was speaking; the setting of the
interview; and the nature of the questions.” State v. Bates, 140
N.C. App. 743, 745, 538 S.E.2d 597, 599 (2000).
In this case, the statements made for the purpose of medical
treatment were reasonably related to that treatment. When asked if
“she knew why she was here,” the female child answered: “BecauseI was molested by my stepdad, to see if I've been messed with.”
The female child discussed her abuse in a clear effort to obtain a
diagnosis corroborating that she had indeed been “messed with.”
Her statements concerning her step father “on top of her” explained
her concern about pregnancy and are reasonably related to procuring
testing for pregnancy and sexually transmitted diseases. Thus, we
uphold the trial court's admission of these statements under the
medical diagnosis exception to the hearsay rule.
Nonetheless, Margaret Mashburn argues that “the most
compelling reason for disallowing the statements is that the
statements were not made to the witness.” We are not persuaded.
While Dr. Brown did not personally conduct the interviews of the
children, and she testified to the content of both these
interviews, DSS offered and this Court accepts that these
statements are admissible under the ordinary course of business
hearsay exception. In re Smith, 56 N.C. App. 142, 148, 287 S.E.2d
440, 444 (1982)(“While it is true that the witnesses had no
firsthand knowledge . . . when they assumed responsibility of the
case, each had familiarized herself with the case history of the
client based on the records kept by the department of social
services . . . admissible under the business records exception to
the hearsay rule.”)
[6] Margaret Mashburn next argues that the trial court should
have excluded the testimony of Dr. Rusty Harris, a mental health
professional. Dr. Harris testified that the male child “said he
was struck with an object, sometimes with a fist, like a knuckle
thing, sometimes just popped on the head.” Dr. Harris furthertestified that the female child said Paul Mashburn's abuse of her
“went from digital penetration until she says somewhere around ten
or eleven that there was intercourse.”
Again, the children's statements to Dr. Harris were made for
the purpose of diagnosis and treatment. In fact, Dr. Harris
diagnosed the children with a myriad of mental health problems,
including borderline post traumatic stress syndrome and
developmental delay. As a result, he recommended a course of
treatment for the juveniles. In short, because the medical
diagnosis exception to the hearsay rule applies to the statements
of mental health expert Dr. Harris, we uphold the trial court's
admission of Dr. Harris' statements.
Thus, with the exception of Ms. Sweat's testimony regarding
Paul Mashburn's threat against the female child, we conclude the
trial court did not err in admitting Ms. Sweat's, Ms. McKinney's,
Dr. Brown's and Dr. Harris's testimony regarding statements made by
the minor children. As to the erroneous admission of the threat,
we conclude the error was non-prejudicial and does not warrant a
new trial. The testimony of Dr. Brown and Dr. Harris provided
sufficient evidence of child abuse.
[7] In her second argument on appeal, Margaret Mashburn
contends the trial court erred by denying her motion to dismiss at
the close of evidence. We disagree. “In testing the sufficiency
of the evidence at the close of ... evidence, the standard is
whether there is substantial evidence to support the allegations of
the petition, viewing the evidence in the light most favorable to
petitioner, and giving petitioner the benefit of every reasonableinference to be drawn from the evidence.” In re Cusson, 43 N.C.
App. 333, 335, 258 S.E.2d 858, 860 (1979). “The test is whether
there is substantial evidence to support the petitioner's
allegations.” In re Gleisner, 141 N.C. App. 475, 478, 539 S.E.2d
362, 364 (2000).
In this case, the record contains evidence supporting the
trial court's denial of the motion to dismiss. For example, from
the evidence in the child medical and psychological examinations,
one could reasonably infer that abuse caused the male child's
extreme, unnatural fear of genital exams and scoldings. Likewise,
the female child's confusion about what constitutes sex and her
fear of sexually transmitted diseases, as well the physical
presence of a vaginal bacterial infection support an inference that
the female child was sexually abused by her father and neglected by
her mother. Moreover, Margaret Mashburn admittedly knew Paul
Mashburn punished the male child by paddling him on the bottom of
his feet and she knew about her husband's alleged sexual abuses of
her daughter and his grandchildren. Nonetheless, the record shows
that she denied that the abuse had occurred and stated that the
female child had been lying. In light of the evidence supporting
the trial court's judgment, we uphold the trial court's denial of
her motion to dismiss.
In this case, Mr. Mashburn has not argued the trial court
misunderstood the distinction and our review of the trial court's
order indicates that the trial court did not treat the expert
testimony as an endorsement of the female child's credibility.
Thus, even assuming the expert testimony was an impermissible
endorsement of the female child's credibility, Mr. Mashburn has not
shown the trial court considered the testimony to bolster the
female child's credibility.
[10] Mr. Mashburn also contends neither Dr. Harris nor Dr.
Brown had a proper foundation for their opinions. We disagree. In
rendering the opinion that the female child was “highly likely to
have been a victim of child sexual abuse,” the record indicates Dr.
Brown considered evidence showing that the child had been
physically abused and had contracted the vaginal bacterial
infection gardenorala vaginalis. While it is true that the
infection may be contracted by means other than sexual contact, Dr.
Brown testified that this infection is “seen mostly as a result of
sexual activity” and could be transmitted by “genital-to-genital
contact without penetration.” Moreover, Dr. Brown testified that
in forty percent of the examinations after a perpetrator had
confessed to penetration, the child still had a completely normal
genital exam. Accordingly, we conclude Dr. Brown had a proper
foundation upon which to render her opinion. Similarly, we find Dr. Harris's testimony unproblematic. Dr.
Harris had seen the female child for eighteen therapy sessions,
which included individual, family and group therapy. Dr. Harris
also testified that due to the sexual reactivity issues in the
female child's case, a female therapist worked with the female
child in group and several individual sessions. In total, Dr.
Harris was personally involved in 14 out of 20 hours of therapeutic
services.
Moreover, even assuming Dr. Harris testified he clinically
believed the female child was truthful in her allegations, the
trial court did not rely upon such an opinion in its order.
Finding of Fact 8 which addresses Dr. Harris's testimony merely
recites the number of therapy sessions, disclosures made by the
female child in therapy, and his recommendations for the female
child's treatment. Accordingly, we hold the trial court did not
erroneously admit the expert opinions of Dr. Harris and Dr. Brown.
Affirmed.
Judge LEVINSON concurs in the result only.
Judge TYSON concurs in part and dissents in part.
TYSON, Judge concurring in part and dissenting in part.
I concur in affirming the trial court's order regarding Mr.
Mashburn. I respectfully dissent from the majority's holding
regarding Mrs. Mashburn. No evidence was presented to show that
Mrs. Mashburn abused or neglected her children.
Mrs. Mashburn's parental rights are separate and distinct from
those of Mr. Mashburn. The trial court erred by consideringevidence of Mr. Mashburn's abuse and neglect to determine whether
Mrs. Mashburn abused or neglected her children.
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