An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA03-982


Filed: 15 June 2004


In Re: R.S. and M.S.            Alamance County                        &nbs p;   
                            No. 01 J 172
                             01 J 173


    Appeal by respondent from judgment entered 9 May 2002 and 22 May 2002 and signed 22 October 2002 by Judge James K. Roberson in Alamance County District Court. Heard in the Court of Appeals 18 May 2004.

    Jamie L. Hamlett for petitioner-appellant.

    Robert T. Newman, Sr. for respondent-appellant.

    STEELMAN, Judge.

    Respondent-mother, S.S., appeals the district court's adjudication and disposition order finding abuse and neglect of two minor children, R.S. and M.S., born August 1996 and August 1999, respectively.
    Respondent, S.S. (then age 28), is the mother and L.S. (then age 44) is the father of two daughters, R.S. and K.S. Mother and father married in 1996 and separated in May 2000. Mother retained primary custody of the children, with the father having visitation every other weekend. After the separation, mother moved into her parents' home. In January 2001, mother began a relationship withJames Furr (then age 18). In June 2001, respondent moved into her own apartment, and thereafter, Mr. Furr began staying overnight. The children's father lived in his own one-bedroom apartment at the time the alleged incidents occurred. Ms. Loretta Myers and her children, Megan and Cody, lived with the father from the end of September until the middle of October, while Ms. Myers looked for housing for herself and her children. Christina (then age 15), the father's daughter from his first marriage, visited her father on weekends, and sometimes her boyfriend stayed overnight.
    On 3 November 2001, the children went for a regular weekend visit with their father. During this visit, their father was shampooing the carpet at his apartment so the children went to the home of a neighbor, Monica Boswell. While giving the children their evening bath, Megan and Monica noticed that both of the children's vaginas appeared red and raw, and that R.S. had a strong discharge. As a result of statements made by R.S., Megan called 911 and the police arrived at Ms. Boswell's residence. The children were then taken to Alamance Regional Medical Center for an examination.
    At the hospital, Dr. Brian Carducci, an emergency room physician, examined R.S. In the course of the medical examination, R.S. stated that “James put his pee-pee in my mouth and in Sissy's mouth,” “Mommy watches James laying on bed,” and “James jumps me.” Dr. Carducci recorded R.S.'s comments in the emergency room chart. As a result of the physical examination, Dr. Carducci found R.S. had a perforated hymen and slight erythema (redness) about thevaginal opening. Dr. Carducci testified that the child's demeanor was unusual during the examination, in that she was not withdrawn, was very cooperative, very calm, and even smiling. R.S. was not resistant to being unclothed by the medical staff and having her private areas touched and examined, which behavior Dr. Carducci found to be uncommon in a 5-year-old child. He also testified that he was concerned about the level of explicit sexual terminology used by a child her age. Dr. Carducci stated that while the perforated hymen and redness in the vagina could be caused by things other than sexual abuse, based on the physical examination and medical history taken on R.S., his diagnosis was that R.S. had been sexually molested.
    Prior to 3 November 2001, the children's father had reason to believe the girls were being sexually abused, but did not contact the children's mother, the police, or social services. On or about 18 October 2001, the father observed redness in R.S.'s private area. R.S. told her father that her mother's boyfriend had touched her in her private parts. The father testified he had witnessed the girls “going down on each other,” placing one's face in the other's private area of their bodies. Also, prior to the 3 November incident, both Megan and Christine had told him that they had seen the girls acting out sexually toward each other. The father testified he did not report these things because he did not want to start a “holy war” with his wife.
    During the course of the investigation, law enforcement became concerned about possible oral sex and sexual acts performed by thechildren on their mother. Their mother admitted to officers of the Mebane Police Department that she had witnessed the children acting in a sexual manner towards each other on several occasions and even admitted R.S. had acted in a sexual manner towards her. Upon witnessing this behavior, mother stated that she suspected they were being abused and made an appointment with a doctor. However, after discussing the situation with her mother she canceled the appointment.
    A forensic mental health evaluation was conducted on R.S. by Kirkpatrick & Hadler Forensic Evaluation Services. An evaluation could not be conducted on K.S. due to her age and inability to effectively communicate. Even though the evaluators could not conclusively determine that R.S. had been sexually abused, the data strongly suggested that she had been abused, and had primarily named James Furr as the perpetrator.
    The trial court found as fact that the children were sexually abused by their mother and James Furr. The court also found that the children lived in an environment injurious to their welfare and that neither parent took the steps reasonably necessary under the circumstances to prevent harm to the children. The court concluded that petitioner, Alamance County Department of Social Services (DSS) had proven by clear and convincing evidence that R.S. and K.S. were abused and neglected juveniles under N.C. Gen. Stat. § 7B-101(1), (15). The court awarded custody of the two children to DSS. Mother appeals.    In her first assignment of error, the mother contends the trial court erred when it admitted statements of R.S. into evidence, contending the statements were hearsay and inadmissible under any exception, and not corroborative of any testimony by R.S. Specifically, the mother objects to the statements made by R.S. to Christina, DSS investigator Vernon Jones, Dr. Carducci, and to the nurse at Alamance Regional Medical Center.
    The trial court allowed Christina and Mr. Jones to testify as to what R.S. told them happened to her for the limited purpose of showing the actions taken by these witnesses in response to the statements. They were also received for corroboration of later testimony in the trial.
    “'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.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003). Hearsay is inadmissible except where allowed by statute or the Rules of Evidence. N.C. Gen. Stat. § 8C-1, Rule 802 (2003). Where a statement is not offered to prove the truth of the matter asserted, but for another purpose, it is not hearsay and is admissible. State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990). More “[s]pecifically, 'statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made.'” Id. (citations omitted). It was proper for the trial court to allow Christina and Mr. Jones to testify as to R.S.'s statements for the purpose of explaining the actions they took in response to those statements.     It should be noted that when a trial court allows a witness to testify for the purpose of corroborating testimony that has not yet been received, there is an inherent risk that such testimony may not in fact corroborate the later testimony, and may have to be stricken at a later point in the trial. Trial judges should exercise the greatest possible caution before admitting such testimony. The dangers of such practice is greatly reduced in a bench trial where the judge sits as the finder of fact. There is a presumption that the trial judge will only consider competent evidence and will disregard any incompetent evidence. In re Morales, 159 N.C. App. 429, 433, 583 S.E.2d 692, 694 (2003). The trial court did not recite the testimony of Christina or Mr. Jones in its findings of fact. There is nothing in the record which indicates that the trial court based its findings of fact or final decision on incompetent evidence. Furthermore, there is sufficient evidence to support the trial court's findings.
    In her final argument as to the statements of R.S. to Christina and Mr. Jones, mother asserts those statements were more prejudicial than probative and should have been excluded pursuant to N.C. Gen. Stat. § 8C-4, Rule 403 (2003).
    Pursuant to Rule 403, whether or not relevant evidence should be excluded is a matter within the sound discretion of the trial court, which cannot be reversed absent a showing of abuse of discretion. State v. Williams, 355 N.C. 501, 574, 565 S.E.2d 609, 651 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003). Careful review of the record and transcripts does not indicate any abuse of discretion.
    Mother next contends the trial court erred in admitting the statements of R.S. to Dr. Carducci under the medical diagnosis or treatment exception to the hearsay rule over her objection. We disagree.
    The trial court found the statements made by R.S. during her examination led, in part, to a medical diagnosis or treatment. The trial court further found that the statements were reliably pertinent to that diagnosis and treatment and overruled respondent's objection.
    Rule 803(4) provides that:
        [t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness:...(4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

N.C. Gen. Stat. § 8C-1, Rule 803(4) (2003). In order to be admissible under this hearsay exception, the statement must meet a two-part inquiry. The court must determine “(1) whether the declarant's statements were made for purposes of medical diagnosis or treatment; and (2) whether the declarant's statements were reasonably pertinent to diagnosis or treatment.” State v. Hinnant, 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000).
    As to the first of these inquiries, the burden is on the proponent of the testimony to affirmatively demonstrate that thedeclarant had the necessary intent by showing “that the declarant made the statements understanding that they would lead to medical diagnosis or treatment.” Id. at 287, 523 S.E.2d at 669. Our Supreme Court has recognized the difficulty inherent in determining whether a declarant understood the purpose of their statements. Id. This is especially true in the context of child abuse cases. Thus, “the trial court should consider all objective circumstances of record surrounding declarant's statements in determining whether he or she possessed the requisite intent under Rule 803(4).” Id. at 288, 523 S.E.2d at 670. These circumstances include, but are not limited to: (1) the setting of the interview and the nature of the questioning; (2) to whom the declarant was speaking; and (3) whether anyone told the child the purpose of the examination or explained the need for them to tell the truth. Id. Our Supreme Court also noted that once the child is at the doctor's office, the likelihood that the child will understand the significance of the visit increases and the necessary motivation for diagnosis and treatment will be present. Id. (citing State v. Dever, 64 Ohio St. 3d 401, 410, 596 N.E.2d 436, 444 (1992), cert. denied, 507 U.S. 919, 122 L. Ed. 2d 672, 1279 (1993).
Defendant argues that since Dr. Carducci did not remember whether he explained to R.S. his role or why he was talking with her, then R.S. could not have the necessary motivation to seek medical treatment. However, our Supreme Court has stated that the court should consider “all objective circumstances” in determining if the declarant had the necessary intent. Hinnant, at 288, 523S.E.2d at 670 (emphasis added). In this case there are other objective circumstances which support the first prong of the medical diagnosis exception to the hearsay rule analysis: (1) R.S. was taken to the hospital following discovery of redness in her vaginal area; (2) the police took R.S. to the hospital for treatment on the same night the allegations of sexual abuse were received; (3) she was taken to the hospital late at night, at approximately 11 p.m.; (4) the examination took place in the emergency room of a hospital; (5) the doctor testified he introduced himself as a doctor; and (6) he was wearing a “long white doctor coat.” We conclude these factors support the first prong of the medical exception analysis. These facts are also distinguishable from those in Hinnant where the child made statements to a non-treating clinical psychologist, in a non- medical environment, two weeks after the initial physical examination. Hinnant, 351 N.C. at 290, 523 S.E.2d at 671.
    R.S.'s statements were also sufficient to meet the second prong of the inquiry, as they were “reasonably pertinent to diagnosis or treatment.” Id. at 284, 523 S.E.2d at 667. She stated how and where she was inappropriately touched. She also stated by whom she was touched. See State v. Isenberg, 148 N.C. App. 29, 38, 557 S.E.2d 568, 575 (2001) (noting the “victim's identification of the defendant as perpetrator was pertinent to continued treatment of the possible psychological and emotional problems resulting from the [sexual offense]”), disc. review denied, 335 N.C. 288, 561 S.E.2d 268 (2002) (citing State v.Aguallo, 318 N.C. 590, 597, 350 S.E.2d 76, 81 (1986)). Therefore, R.S.'s statements to Dr. Carducci satisfy the two-part Hinnant inquiry and were admissible as statements made for the purpose of diagnosis and treatment under Rule 803(4).
    By this same assignment of error, respondent relies on State v. Bates, to argue that Dr. Carducci's diagnosis of child abuse lacked a proper foundation. 140 N.C. App. 743, 538 S.E.2d 597 (2000), disc. rev. denied, 353 N.C. 383, 547 S.E.2d 20 (2001). In Bates, this Court held that the doctor's opinion of abuse lacked a proper foundation as the physical examination revealed no evidence that the child had been sexually abused and the doctor based his opinion solely on the child's statements to a psychologist. Id. at 748, 538 S.E.2d at 601. This case is clearly distinguishable. Here, there was physical evidence to support the doctor's opinion of sexual abuse, i.e. the perforated hymen and the vaginal redness. In addition, there were the statements of R.S., as well as the doctor's observations of the explicit language she used to describe the acts of abuse and her unusual demeanor during the examination. Therefore, Dr. Carducci's diagnosis of child abuse had a proper foundation and it was properly admitted.
    The nurse's notes were also admissible into evidence. A physician may testify to the information he or she relied upon in forming their opinion or diagnosis for the purpose of showing the basis of that opinion. State v. Spangler, 314 N.C. 374, 385, 333 S.E.2d 722, 729 (1985). Dr. Carducci, was qualified as an expert witness. He testified that he reviewed the nurse's notes “as partof the complete evaluation of the patient” and used them in his diagnosis. Thus, it was proper for Dr. Carducci to read the nurse's notes as he used them in forming his diagnosis of sexual abuse.
    As both Dr. Carducci's testimony and the nurse's notes were properly admitted under the hearsay exception in Rule 803(4), we need not address whether these statements were properly admitted for corroboration purposes. For the reasons discussed above this assignment is overruled.
    In respondent-mother's second assignment of error she contends that certain enumerated findings of fact were not supported by the evidence.
    During the mother's presentation of evidence, her counsel introduced, without limitation, a forensic mental health evaluation of R.S. This document contained much of the same evidence referenced in the trial court's findings of fact, which mother now contends was not supported by the evidence. The evaluation states that there is significant data to support that the child is a victim of sexual abuse, in that R.S. had repeatedly stated she was touched sexually and had described forms of adult sexual contact, such as genital-genital, oral-genital, and object-genital. “'[A]dmission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.'” State v. Valentine, 357 N.C. 512, 525, 591 S.E.2d 846, 857 (2003) (citations omitted). Mother cannot now complainthat the trial court's findings of fact were unsupported by the evidence when she herself introduced similar evidence.
    In the mother's third assignment of error she contends the trial court's conclusions of law in the Juvenile Adjudication Order and the Juvenile Dispositional Order, which adjudicated the minor children as abused and neglected, were not supported by the findings of fact.
    A conclusion of law is a statement of law, which arises from the facts particular to a case, and which determines the issues between the litigants. In re Everette, 133 N.C. App. 84, 85, 514 S.E.2d 523, 525 (1999). Where the conclusions of law are supported by the findings of fact, then the appellate court should affirm the trial court's decision. Id.
    The unchallenged findings of fact in this case, by themselves, provide sufficient evidence to support the conclusion that the two minor children were abused and neglected within the meaning of these definitions. An abused and neglected juvenile is defined in pertinent part as follows:
        (1) Abused juveniles. -- Any juvenile less than 18 years of age whose parent, guardian, custodian, or caretaker: . . . d. Commits, permits, or encourages the commission of a violation of the following laws by, with, or upon the juvenile: . . . first-degree sexual offense, as provided in G.S. 14-27.4; second degree sexual offense, as provided in G.S. 14-27.5; . . .and taking indecent liberties with the juvenile, as provided in G.S. 14-202.1, regardless of the age of the parties;
        (15) Neglected juvenile. -- A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; . . . orwho lives in an environment injurious to the juvenile's welfare; . . .
N.C. Gen. Stat. § 7B-101(1), (15) (2003).
    It is well settled that “[w]here no exception is taken to a finding of fact [made] by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). On appeal, mother specifically assigned as error, the trial court's findings of fact 4, 5, 10, 35, 39, 41, and 42h in the juvenile adjudication order and finding of fact 2 in the disposition order. All of the remaining findings of fact are binding on appeal. These findings provide competent evidence to support the trial court's conclusions of law. In the Juvenile Adjudication Order findings of fact 6 and 7 state that respondent-mother and father were the parents of the two minor children who were under the age of 18. Findings of fact 18 and 19 state that the children's father observed redness in R.S.'s private area and that she told him that her mother's boyfriend had touched her in her private area, yet the father did not contact DSS or the police or take the child to a doctor. Finding of fact 29 states that on one occasion when mother was getting out of the bath and was naked, R.S. inserted a large marker in her vagina and she received sexual feeling from the insertion of the marker. Findings of fact 30 and 31 state that mother suspected sexual abuse when she observed the two children acting out sexually by fondling each other and putting their mouths on each other's private areas, but she did not take either child to see a doctor. Findings of fact 32 and 33 state that James Furr,respondent's boyfriend had care-giving responsibilities over the juveniles and was a caretaker. Finding of fact 34 states James Furr abused the minor children by committing a sex offense on the girls by putting his penis in their mouths, thereby committing the sex offense of indecent liberties with a minor. Finding of fact 36 states that the respondent, mother, permitted the abuse by being present and watching the abuse but taking no actions to stop it. And finally, findings of fact 37 and 38 states that respondent abused R.S. by allowing the child to put her mouth on her mother's private area, thus constituting a sex offense or indecent liberties with a minor.
    Thus, there was sufficient evidence in the findings of fact, as to which no error was assigned, to support the conclusions of law adjudicating the children abused and neglected. This assignment of error is without merit.
    In respondent's final assignment of error she contends that the court erred in denying her motion to dismiss at the end of the evidence. When ruling on a motion to dismiss, the court must view the evidence in the light most favorable to the petitioner, giving the petitioner the benefit of every reasonable inference. In re Gleisner, 141 N.C. App. 475, 478, 539 S.E.2d 362, 364 (2000). “The test is whether there is substantial evidence to support petitioner's allegations.” Id. In the case at bar, the petition alleged that both children were abused and neglected. For the reasons discussed above and viewing the evidence in the light most favorable to petitioner, we hold there was substantial evidence tosupport petitioner's allegations. The trial did not err in denying mother's motion to dismiss.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

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