Appeal by respondent from orders entered 18 April 2005 and 27
April 2005 by Judge J. Henry Banks in District Court, Vance County.
Heard in the Court of Appeals 17 May 2006.
No brief filed by petitioner-appellee, Vance County Department
of Social Services.
Alexandra S. Gruber for guardian ad litem.
Janet K. Ledbetter for respondent-appellant.
The Vance County Department of Social Services (DSS) filed a
juvenile petition on 1 September 2004, alleging K.A. to be abused
and neglected. K.A. is the biological daughter of D.A.
(respondent), and was five years old at the time of the 18 February
2005 adjudication hearing. DSS alleged K.A. to be abused in that
her "parent, guardian, custodian or caretaker: . . . committed,
permitted, or encouraged the commission of a sex or pornography
offense with or upon [K.A.] in violation of the criminal law." DSS
alleged K.A. to be neglected in that she "[did] not receive proper
care, supervision, or discipline from . . . [her] parent, guardian,
custodian, or caretaker." DSS alleged that on or about 31 August
2004, it received a report alleging that K.A. "suffered injury fromsexual abuse administered by [respondent]." DSS also alleged that
on or about 31 August 2004, it obtained information that
"[respondent] allegedly sexually assaulted [K.A.] by
inappropriately touching [K.A.'s] vagina area with his hand, and
[by] forcing [K.A.] to perform oral sex, the most recent incident
occurr[ing] on or about [30 August 2004]." The trial court filed
an order on 7 September 2004 awarding custody of K.A. to DSS.
At the adjudication hearing, K.A.'s aunt, Angela N., testified
that on 30 August 2004, she went to the home of her sister, Ramona
N. Ramona N. told Angela N. that "[K.A.] had been touched by
[respondent]." Angela N. further testified that K.A. told her
respondent had rubbed his penis against K.A.'s body as they were
lying in bed. K.A. demonstrated to Angela N. how K.A. and
respondent were positioned during the alleged sexual activity by
using male and female dolls. Angela N. testified she filed an
incident report with police on 30 August 2004.
Ramona N. testified that on 30 August 2004, K.A. said
"[respondent] put his pee-pee in [K.A.'s] mouth and did like this,
huh uh[.]" K.A. also told Ramona N. that "if [K.A.] didn't do it,
the monsters [were] going to come and get [K.A.], and the cops
[were] going to take [K.A.] from them." Ramona N. further
testified that K.A. used dolls to demonstrate these sexual acts to
her several times after 30 August 2004.
Tamika Tripel (Ms. Tripel), an investigator with DSS,
testified she interviewed K.A. on 31 August 2004 regarding the
allegations of sexual abuse. Ms. Tripel used anatomical drawingsduring the interview. Ms. Tripel stated that K.A. told her
respondent had placed his penis in K.A.'s mouth, had put his body
on K.A.'s body, and had touched K.A.'s vagina with his hands.
Rhonda Hopkins (Ms. Hopkins), a forensic nurse examiner,
testified she interviewed and examined K.A. on 1 September 2004 at
the Maria Parham Medical Center. Ms. Hopkins stated that before
discussing any of the alleged sexual acts, she discussed with K.A.
the importance of telling the truth and obtained a "truth
agreement" from K.A. Ms. Hopkins then interviewed K.A., who used
anatomically-correct drawings to demonstrate how respondent
committed the alleged sexual acts. Ms. Hopkins testified K.A.
"said the boy picture was [respondent], the girl picture was
[K.A.]. And [K.A.] said, '[respondent] put that on this.' And
[K.A.] pointed to [respondent's] penis and her vagina by using the
Ms. Hopkins testified that the "interview is done first so
that you may gather information . . . that would be helpful in the
medical evaluation." Ms. Hopkins further testified that,
immediately after the interview on 1 September 2004, she conducted
a physical examination of K.A., including a vaginal examination.
The examination revealed no abnormalities in K.A.'s hymen nor any
physical injuries. Ms. Hopkins testified that in eighty-five to
ninety percent of sexual abuse cases involving children, the
children show no physical signs of sexual abuse. In her assessment
of K.A., Ms. Hopkins stated it was "unknown but suspicious that
[K.A.] has been the victim of sexual abuse by [respondent]." Ms.Hopkins further testified that "an absence of physical findings
does not rule out the possibility of sexual abuse."
Respondent made continuing objections to statements made by
Angela N., Ramona N., Ms. Tripel, and Ms. Hopkins on the ground of
inadmissible hearsay. The trial court overruled respondent's
objections. At the conclusion of the adjudication hearing,
respondent moved to strike all testimony by any witness concerning
statements made by K.A. Respondent based his motion to strike on
three grounds: (1) the testimony of the witnesses was inadmissible
hearsay since K.A. did not testify in court, (2) K.A. lacked
competency because "[a] five-year-old child isn't presumed
competent[,]" and (3) statements made by K.A. which were testified
to at trial by other witnesses violated the confrontation clause of
the United States Constitution. The trial court denied
respondent's motion to strike. Respondent then moved to dismiss
the petition on the basis that the hearsay evidence was not
sufficient evidence to prove the allegations in the petition, and
the trial court denied the motion.
At the conclusion of the adjudication hearing, the trial court
stated as follows: "[T]he allegations in the petition alleging
abuse and neglect as to . . . [respondent] ha[ve] been proven by
clear and convincing evidence[.]" In the adjudication order filed
18 April 2005, the trial court concluded that "[K.A.] [was] an
[a]bused juvenile under N.C.G.S. [§] 7B-101(1) in that
. . . [r]espondent . . . sexually assaulted . . . [K.A.] by means
of oral sex and inappropriate touching." The trial court alsoconcluded that "[K.A.] [was] a [n]eglected juvenile under N.C.G.S.
[§] 7B-101(15) in that . . . [r]espondent . . . allowed
. . . [K.A.] to reside in an environment injurious to her welfare
and failed to provide proper care or supervision." The trial court
adjudicated K.A. an abused and neglected juvenile. However, the
written adjudication order did not contain any reference to the
clear and convincing evidentiary standard.
The trial court filed a disposition order on 27 April 2005,
ordering that: (1) legal and physical custody of K.A. be awarded to
K.A.'s maternal grandparents, (2) there be no contact between
respondent and K.A., and (3) DSS be released from its obligation to
continue reunification efforts with respondent. Respondent
Respondent first assigns as error "[t]he trial court's failure
to state in the written Adjudication Order the standard of proof
used in making its determination of abuse and neglect that the
allegations of the Petition were proven by clear and convincing
evidence pursuant to N.C.G.S. § 7B-807." N.C. Gen. Stat. § 7B-807
(2005) provides: "If the court finds that the allegations in the
petition have been proven by clear and convincing evidence, the
court shall so state." Respondent's argument relies on this
statutory language and on our Court's ruling in In re Church
N.C. App. 654, 525 S.E.2d 478 (2000). In Church
, an adjudication
order failed to recite the standard of proof relied upon in
terminating the respondent's parental rights. Id
. at 657-58, 525S.E.2d at 480. In Church
, the "[r]espondents assign[ed] as error
the trial court's failure to recite the standard of proof relied
upon in terminating parental rights. Specifically, the trial
court's failure to state that the findings of fact adduced from the
. . . adjudicatory hearing were based upon clear, cogent, and
convincing evidence is reversible error." Id
. at 655, 525 S.E.2d
at 479. Our Court held that
[a]lthough the termination statute does not
specifically require the trial court to
affirmatively state in its order terminating
parental rights that the allegations of the
petition were proved by clear and convincing
evidence, without such an affirmative
statement the appellate court is unable to
determine if the proper standard of proof was
. at 657, 525 S.E.2d at 480. Our Court interpreted N.C. Gen.
Stat. § 7B-1109(f) to require a "trial court to affirmatively state
in its order the standard of proof utilized in the termination
. Our Court held that "[t]he trial court failed to
recite the standard of proof applied in its adjudication order and
its failure to do so [was] error." Id
. at 658, 525 S.E.2d at 480.
Moreover, our Court held that "since the trial court is required to
state that the proper standard of proof has been applied, we cannot
conclude the error here was harmless." Id
In the present case, as respondent argues, the trial court did
not specifically state in the written adjudication order the
standard of proof used in making its determination of abuse and
neglect. However, unlike in Church
, the trial court in the present
case orally stated at trial the evidentiary standard it applied: [T]he Court makes the determination that the
allegations in the petition alleging abuse and
neglect as to . . . respondent . . . ha[ve]
been proven by clear and convincing evidence,
specifically that [K.A.] was abused by [her]
parent, committed or encouraged commission of
a sexual act upon [K.A.] in violation of the
criminal laws of this state. Also,
specifically as to . . . respondent, . . . the
Court also makes the same determination by
clear and convincing evidence, that [K.A,] is
a neglected juvenile in that [K.A.] did not
and does not receive proper care, supervision
or discipline from [her] parent, in this case
. . . respondent[.]
While the better practice is to state in the written
adjudication order the clear and convincing standard of proof, the
fact that the trial court orally stated at trial the appropriate
standard enables this Court "to determine if the proper standard of
proof was utilized." See In re Church
, 136 N.C. App. at 657, 525
S.E.2d at 480. We also conclude the trial court satisfied the
requirements of N.C.G.S. § 7B-807 by orally stating that the
allegations of abuse and neglect in the petition had been proven by
clear and convincing evidence. Therefore,
we overrule respondent's
assignment of error.
Respondent next argues the trial court erred by allowing
inadmissible hearsay testimony regarding statements made by K.A.
Respondent has limited his argument to the testimony of Ms.
Hopkins, thereby abandoning any challenge to the admissibility of
the testimony of any other witness. See
N.C.R. App. P. 28(b)(6).
Hearsay is defined as a "statement, other than one made by the
declarant while testifying at the trial or hearing, offered inevidence to prove the truth of the matter asserted." N.C. Gen.
Stat. § 8C-1, Rule 801(c) (2005). Hearsay evidence is inadmissible
at trial unless an exception to the hearsay rule applies. N.C.
Gen. Stat. § 8C-1, Rule 802 (2005).
N.C. Gen. Stat. § 8C-1, Rule 803(4) (2005) 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.
Our Supreme Court uses a two-part inquiry to determine if testimony
is admissible under the Rule 803(4) hearsay exception: "(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.
, 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000).
Regarding the first prong of the Hinnant
proponent of Rule 803(4) testimony must affirmatively establish
that the declarant had the requisite intent by demonstrating 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. A trial court must consider "all objective circumstances of
record surrounding [a] declarant's statements in determining
whether he or she possessed the requisite intent under Rule
. at 288, 523 S.E.2d at 670.
Some factors to consider in determiningwhether 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
State v. Bates
, 140 N.C. App. 743, 745, 538 S.E.2d 597, 599 (2000),
disc. review denied
, 353 N.C. 383, 547 S.E.2d 19 (2001).
, the defendant was convicted of first-degree rape,
first-degree sexual offense, and taking indecent liberties with a
, 351 N.C. at 279, 523 S.E.2d at 664. The juvenile
was unavailable as a witness at the defendant's trial. Id
. at 280,
523 S.E.2d at 665. The State presented testimony of a clinical
psychologist specializing in child sexual abuse, who testified that
she interviewed the juvenile to obtain information for the
examining physician. Id
. at 281, 523 S.E.2d at 666. Over
objection, the psychologist testified as to what the juvenile told
her regarding the defendant's sexual offenses against the juvenile.
, there was no evidence that anyone explained to the
juvenile the medical purpose of the interview or the importance of
. at 289-90, 523 S.E.2d at 671. The interview was
not conducted in a medical environment, and it occurred two weeks
after the juvenile's initial medical examination. Id
. at 290, 523
S.E.2d at 671. Additionally, the psychologist posed a series of
leading questions in which she "systematically pointed to the
anatomically correct dolls and asked whether anyone had or had not
performed various acts with [the juvenile]." Id
. Thus, theHinnant
court held that the objective circumstances surrounding the
interview did not reinforce the need for truthful answers and did
not indicate that the juvenile's statements were made for purposes
of medical diagnosis or treatment. Id
In the present case, K.A.'s interview with Ms. Hopkins is
distinguishable from the interview in Hinnant
. Before discussing
any sexual abuse, Ms. Hopkins talked about the importance of
truthful answers and obtained a "truth agreement" from K.A. Unlike
, Ms. Hopkins conducted the interview at a medical facility
and did not ask K.A. leading questions about the alleged sexual
abuse. Rather, a review of the record shows that K.A. initiated
discussion regarding the sexual activity.
To meet the second prong of the Hinnant
test, we must decide
"whether the declarant's statements were reasonably pertinent to
diagnosis or treatment." Hinnant
, 351 N.C. at 284, 523 S.E.2d at
667. In Hinnant
, the psychologist did not conduct the interview
with the juvenile until two weeks after the juvenile received
initial medical diagnosis. Id
. at 290, 523 S.E.2d at 671. Thus,
court held that the testimony of the psychologist
failed the second prong of the inquiry because the juvenile's
statements were not reasonably pertinent to diagnosis or treatment.
. The official commentary following the statutory medical
diagnosis or treatment hearsay exception states that "[u]nder the
exception the statement need not have been made to a physician."
N.C.G.S. § 8C-1, Rule 803(4) (official commentary). However,
states this prong of the inquiry "does not includestatements to nonphysicians made after the declarant has already
received initial medical treatment and diagnosis." Hinnant
N.C. at 289, 523 S.E.2d at 670. "[I]nformation that a child sexual
abuser is a member of the patient's household is reasonably
pertinent to a course of treatment that includes removing the child
from the home." State v. Aguallo
, 318 N.C. 590, 597, 350 S.E.2d
The present case differs from Hinnant
. Because respondent
lived in the same household as K.A., the identification of
respondent as a child sexual abuser was "reasonably pertinent to a
course of treatment that include[d] removing [K.A.] from the home."
. Furthermore, Ms. Hopkins, a forensic nurse examiner,
interviewed K.A. on 1 September 2004, just two days after K.A.'s
aunt reported the matter to police and before any medical
professional conducted a medical examination of K.A. In fact, Ms.
Hopkins conducted the interview immediately before administering
the medical examination in order to gather information that would
be helpful in the medical examination. Accordingly, we hold that
K.A.'s statements to Ms. Hopkins in the interview were "reasonably
pertinent to diagnosis or treatment." See Hinnant
, 351 N.C. at
284, 523 S.E.2d at 667.
Ms. Hopkins' testimony satisfies both
prongs of the Hinannt
test and was admissible under the medical
diagnosis or treatment exception to the hearsay rule. Respondent's
assignment of error is overruled.
Respondent argues the trial court abused its discretion by"fail[ing] to hold the Review Hearing pursuant to N.C.G.S. § 7B-
906, and make the requisite findings of fact before the terms of
the Disposition Order could be legally effective." Respondent
appears to argue that the trial court failed to hold a review
hearing pursuant to N.C. Gen. Stat. § 7B-906 and failed to comply
with the requirements of that statute.
However, respondent's argument is premature. N.C. Gen. Stat.
§ 7B-906(a) (2005) provides: "In any case where custody is removed
from a parent, guardian, custodian, or caretaker the court shall
conduct a review hearing within 90 days from the date of the
dispositional hearing and shall conduct a review hearing within six
months thereafter." N.C. Gen. Stat. § 7B-906(c) (2005) sets forth
the criteria which a trial court must consider at a review hearing
and provides that a trial court must "make written findings
regarding those [criteria] that are relevant[.]"
In the present case, the trial court, in its disposition
order, ordered that the trial court "shall review custody of [K.A.]
on August 3, 2005." Because the review hearing had not yet taken
place at the time of the filing of this appeal, respondent's
argument that the trial court did not comply with the provisions of
N.C.G.S. § 7B-906 is premature. We overrule this assignment of
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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