Appeal by respondents from an adjudication and disposition
order entered 23 April 2007 by Judge Edward A. Pone in Cumberland
County District Court. Heard in the Court of Appeals 26 November
2007.
Staff Attorney Elizabeth Kennedy-Gurnee for Cumberland County
Department of Social Services appellee.
Attorney Advocate Beth A. Hall for Guardian ad Litem.
Don Willey for respondent-father-appellant.
Judy N. Rudolph for respondent-mother-appellant.
BRYANT, Judge.
Respondent-mother (A.M.
(See footnote 1)
) and respondent-father (M.M., Sr.)
appeal from an adjudication and disposition order entered 23 April
2007. T.M. was adjudicated abused and neglected based on findings
of fact that she suffered injuries consistent with Shaken Baby
Syndrome, and that the injuries were non-accidental and caused by
either one or both of the respondent-parents. M.M., Jr. was
adjudicated neglected in that he lived in an environment injurious
to his welfare because he lived in the home where T.M. was abused.
After T.M. experienced several days of vomiting and
irritability, respondents took her to the Womack Army Medical
Center Emergency Room because she was nonresponsive. Due to the
severity of her injuries, she was transported by helicopter to UNC
Hospital. On 12 November 2005, T.M. was diagnosed with a non-
accidental head injury. On 13 November 2005, it was determined the
injuries were a result of T.M. being shaken. Dr. Keith Kocis, a
pediatrician and expert in the field of diagnosis and treatment of
critically ill children, admitted T.M. to UNC. He testified she
scored a 7 on the Glascow Coma Score, which was “a number
consistent with severe neurologic dysfunction.”
On 14 November 2005 a petition for abuse and neglect was filed
by Cumberland County Department of Social Services (DSS) and a
nonsecure custody order was issued for T.M. and M.M., Jr. On 30
November 2005, the trial court ordered respondents could have
supervised visitation with T.M. and M.M., Jr. At that time, M.M.,Jr. was placed in the paternal grandmother's home and a home study
was ordered. Upon release from the hospital, T.M. was placed with
the paternal grandmother in April 2006.
On 5 January 2006, respondent-father made an oral motion
requesting that a medical expert review the records in the case,
which was reduced to writing on 23 September 2006. On 21 November
2006, the trial court filed an order which included findings of
fact that “[i]t has taken a significant amount of time to locate an
expert in as much as despite counsel's diligent work to locate an
expert witness, they have been turned down by numerous experts.”
The trial court also found “[t]hat it has been for good cause shown
that the time for trial has lapsed” and “[t]hat it has been
determined that a Special Session will be required to hear this
matter in that it is anticipated that it will take three to five
(3-5) days for trial.” The trial court found “[t]hat the [trial]
Court currently has special sessions scheduled through November and
December; there is no available trial time until next year.” Based
on the time delay, the trial court made a “good cause” finding for
the case to be continued to early 2007.
In March 2007, the trial court conducted a six-day hearing
adjudicating T.M. abused and neglected and M.M., Jr. neglected.
From the 23 April 2007 adjudication and disposition order,
respondents appeal.
__________________________________
Respondent-mother raises four arguments on appeal. First,
respondent-mother argues that the trial court erred by admittingmedical records into evidence without proper foundation as required
by N.C. Gen. Stat. §8C-1, Rule 803(6) (2005). Respondent-mother's
second and third arguments are that the trial court's findings of
fact and conclusions of law are not properly supported, based on
the fact that the medical records were erroneously admitted.
Fourth, respondent-mother argues that the trial court committed
reversible error by failing to comply with the statutory time
period for adjudicating the petition.
Respondent-father raises three arguments on appeal. First,
respondent-father argues that the trial court erred by reserving
the right to make additional findings of fact out of court and out
of session. Second, respondent-father asserts that there was
insufficient evidence to support the adjudication of abuse. Third,
respondent-father argues, as respondent-mother argues, that the
trial court committed reversible error by failing to comply with
the statutory time period for adjudicating the petition.
[1] Respondent-mother argues the trial court committed
reversible error by admitting the medical records into evidence
without a proper foundation. At the beginning of the hearing, DSS
sought admission of all the medical records pursuant to “the local
rules[.]” The local rule relied on by DSS, Rule 10.3 of the
Twelfth Judicial District Juvenile Case Management Plan, states as
follows:
The GAL attorneys and volunteers regularly
obtain copies of the medical records of the
parents and children in cases alleging abuse
and/or neglect pursuant to statutes or court
orders allowing them access to said records.
(a) GAL shall request the records and upon
receipt notify the DSS and respondent
attorneys that they are available for review.
(b) Attorneys may review the records in the
GAL office and may make copies of the records.
GAL will number the pages of the records and
prepare a sheet for each attorney to sign
indicating their review of the records.
Attorneys may provide copies of their client's
records to that client.
(c) Attorneys must make objections to the
admission of the records within ten (10)
working days of the notice of availability of
the records or the records may be admitted
without objection.
(d) The GAL may apply to the Court at any
time, with notice to all parties, to destroy
non-relevant records.
(e) Attorneys are authorized to destroy copies
of the records sixty (60) days following a
voluntary or involuntary dismissal of the
action, a TPR judgment, an order awarding
guardianship of the children, an order
returning custody to the parents with no
further reviews, or any other action that
finally terminates the case and no appeal has
been filed.
Rule 10.3, Twelfth Judicial District Juvenile Case Management Plan
(emphasis added). Although no objection was made to the records
within the ten days as provided by Rule 10.3, respondent-father
objected at the hearing “to the tender of the medical records
without the proper foundation.” In response, DSS argued that the
medical records should be admitted pursuant to Rule 10.3. The
trial court ruled that because respondent-father had failed toobject within ten days as provided by Rule 10.3, the medical
records were deemed admissible.
(See footnote 2)
North Carolina General Statutes, Section 7B-804 states
“[w]here the juvenile is alleged to be abused, neglected, or
dependent, the rules of evidence in civil cases shall apply.”
In
re E.P., 183 N.C. App. 301, 303, 645 S.E.2d 772, 773 (2007). Under
the North Carolina Rules of Evidence, statements, other than those
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted are
hearsay and are generally inadmissible. N.C. Gen. Stat. § 8C-1,
Rules 801(c), 802 (2005). The “business records exception” to thehearsay rule is found in North Carolina General Statutes, section
8C-1, Rule 803(6), which provides in relevant part:
A memorandum, report, record, or data
compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or
near the time by, or from information
transmitted by, a person with knowledge, if
kept in the course of a regularly conducted
business activity, and if it was the regular
practice of that business activity to make the
memorandum, report, record, or data
compilation, all as shown by the testimony of
the custodian or other qualified witness,
unless the source of information or the method
or circumstances of preparation indicate lack
of trustworthiness is not excluded by the
hearsay rule.
N.C.G.S. § 8C-1, Rule 803(6) (2005). In addition, medical records
are admissible pursuant to N.C. Gen. Stat. § 8C-1, Rule 703 which
states:
The facts or data in the particular case upon
which an expert bases an opinion or inference
may be those perceived by or made known to him
at or before the hearing. If of a type
reasonably relied upon by experts in the
particular field in forming opinions or
inferences upon the subject, the facts or data
need not be admissible in evidence.
N.C.G.S. § 8C-1, Rule 703 (2005). This Court has stated that:
The mere admission by the trial court of
incompetent evidence over proper objection
does not require reversal on appeal. “Rather,
the appellant must also show that the
incompetent evidence caused some prejudice.”
In the context of a bench trial, an appellant
“must show that the court relied on the
incompetent evidence in making its findings.”
“Where there is competent evidence in the
record supporting the court's findings, we
presume that the court relied upon it and
disregarded the incompetent evidence.”
In re Huff, 140 N.C. App. 288, 301, 536 S.E.2d 838, 846 (2000)
(internal citations omitted),
review denied, appeal dismissed, 353
N.C. 374, 547 S.E.2d 9 (2001);
see also In re L.C., ___ N.C. App.
___, ___, 638 S.E.2d 638, 642 (2007) (“In a bench trial, 'it will
be presumed that the judge disregarded any incompetent evidence
that may have been admitted unless it affirmatively appears that he
was influenced thereby.'”) (quoting
Stanback v. Stanback, 31 N.C.
App. 174, 180, 229 S.E.2d 693, 696 (1976),
disc. review denied, 291
N.C. 712, 232 S.E.2d 205 (1977)). Further, “a physician, as an
expert witness, may render his opinion, including a diagnosis,
based either on personal knowledge or observation or on information
supplied to him by others, including the patient, if the
information is inherently reliable, even though such information is
independently admissible into evidence; and if the expert's opinion
is admissible, the expert may testify to the information he relied
upon in forming it, for the purpose of showing the basis of the
opinion.”
State v. Spangler, 314 N.C. 374, 385, 333 S.E.2d 722,
729 (1985) (citations omitted) (A doctor's testimony was admissible
when he relied upon certain tests administered by hospital staff.).
The respondents have the burden of showing prejudice at the
trial court's admission of the volumes of medical records.
However, they are unable to do so in the instant case. Over the
course of the six-day hearing, petitioner presented the sworn
testimony of eight witnesses, five of whom were trained medical
personnel and three of whom were qualified and accepted by the
trial court as expert witnesses. Detailed expert testimonyregarding personal observations and opinions provided the court
with clear, cogent and convincing evidence that T.M. was abused.
Dr. Keith Kocis, Director of Pediatric Intensive Care Unit at
UNC, was tendered by the court as an expert in the treatment of
critically ill children who have been victims of child abuse. As
T.M.'s admitting physician at the UNC Hospital Intensive Care Unit,
Dr. Kocis arranged for T.M.'s transport from Womack Army Medical
Center. He testified it was clear T.M. was desperately ill and
unable to breathe on her own with very minimal brain function. He
further testified she scored a 7 on the Glascow Coma Score, which
was “a number consistent with severe neurologic dysfunction” and
that “it became very clear that [T.M.] had a life threatening brain
injury and [that] the type of brain injury that she was showing
[was] very consistent and very commonly found with non-accidental
trauma.” Dr. Kocis described the subdural hematomas of differing
ages as, “a screaming red flag of shaken baby syndrome.” Based on
Dr. Kocis' observations, T.M. had multiple levels of brain injury
and “it was a profound injury affecting almost all aspects of the
brain.” Dr. Kocis stated “[c]ertainly the constellation of what we
saw is shaken baby syndrome.”
Joyce Moore, Registered Nurse, was tendered as an expert in
the field of forensic pediatric nurse consultation. Nurse Moore
has thirty years experience on the UNC Beacon Team (combined child
maltreatment assessment, child protection services, domestic
violence and elder abuse) and the Child Medical Evaluation program
at UNC. Nurse Moore testified she coordinated T.M.'s treatment,spoke directly with respondent-father and personally reviewed the
medical records in forming her opinion. Nurse Moore testified in
her expert opinion, T.M.'s injuries were inflicted by trauma.
Dr. Kenneth Lury, Neuroradiologist at UNC, was tendered as an
expert in the field of diagnostic neuroradiology and was a part of
the UNC team caring for T.M. He testified extensively as to the
types of images used to diagnose T.M. and during his testimony
showed the trial court images of T.M.'s brain. Dr. Lury testified
that based on the presence of blood of varying ages in T.M.'s brain
and other physical evidence he observed, it was his opinion T.M.'s
injuries were due to a non-accidental trauma.
It is clear from the detailed findings of fact and conclusions
of law that the trial court relied on the significant and extensive
medical testimony of these experts. While petitioners did not lay
a proper foundation for the admission of medical records, the
extensive firsthand medical testimony by Drs. Kocis and Lury and
Nurse Moore in treating T.M. provided more than sufficient evidence
to support a finding and conclusion that T.M. was abused.
Respondents have not met their burden of showing they were
prejudiced by the admission of the medical records. We reject
respondent's contention that without the medical records in
evidence the trial court could not have found and concluded T.M.
was abused.
See Huff, 140 N.C. App. at 301, 536 S.E.2d at 846
(citation omitted) (“Where there is competent evidence in the
record supporting the court's findings, we presume that the court
relied upon it and disregarded the incompetent evidence.”). Eachof the challenged findings of fact were supported by clear, cogent
and convincing evidence. These assignments of error are overruled.
[2] Next, respondents argue the trial court committed
reversible error by failing to comply with the statutory time
period for conducting the adjudicatory hearing. The juvenile
petition was filed on 14 November 2005. The adjudicatory hearing
was held in March 2007, sixteen months after the petition was
filed. Pursuant to N.C. Gen. Stat. §7B-801(c) (2005), “[t]he
adjudicatory hearing shall be held . . . no later than 60 days from
the filing of the petition unless the judge pursuant to G.S. 7B-803
orders that it be held at a later time.” N.C. Gen. Stat. § 7B-803
provides that:
The court may, for good cause, continue the
hearing for as long as is reasonably required
to receive additional evidence, reports, or
assessments that the court has requested, or
other information needed in the best interests
of the juvenile and to allow for a reasonable
time for the parties to conduct expeditious
discovery. Otherwise, continuances shall be
granted only in extraordinary circumstances
when necessary for the proper administration
of justice or in the best interests of the
juvenile.
N.C. Gen. Stat. § 7B-803 (2005).
Here, continuances were entered due to a request for a special
court setting based on the length of time needed for a trial, and
because respondents sought funds to hire an expert witness.
Additional delay resulted from respondents' inability to retain an
expert who would agree to review the medical records. On 17
November 2006, the trial court entered an order stating counsel had
“taken a significant amount of time to locate an expert in as muchas despite counsel's diligent work to locate an expert witness,
they have been turned down by numerous experts.” Furthermore,
noting the request for a special setting to hold the trial, the
court indicated January 2007 was the first available time for a
special setting. Thus, the court found “for good cause shown that
the time for trial has lapsed.” A pre-adjudication conference was
held on 4 January 2007. The trial court again noted in its order
that the time for trial had lapsed “for good cause shown” and
continued the matter. The matter was finally calendared for trial
for 19 March 2007. Therefore, most of the delay was attributed to
respondents' search for an expert witness, and respondents' request
for a special trial setting, and not as respondents have argued,
due to the trial court.
See In re D.J.D., 171 N.C. App. 230, 243,
615 S.E.2d 26, 35 (2005) (since respondent moved for the
continuance, he could demonstrate no prejudice from any delay in
holding the termination hearing). Furthermore, respondents have
not articulated any specific prejudice resulting from the delay.
See In re S.N.H. and L.J.H., 177 N.C. App. 82, 627 S.E.2d 510
(2006) (mere passage of time alone is not enough to show
prejudice). This assignment of error is overruled.
[3] Lastly, respondent-father argues the trial court erred by
reserving “the right to make additional findings out of Court and
out of session consistent with the evidence and testimony
presented.” N.C. Gen. Stat. § 1A-1, Rule 61 states:
No error in either the admission or exclusion
of evidence and no error or defect in any
ruling or order or in anything done or omitted
by any of the parties is ground for granting anew trial or for setting aside a verdict or
for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal
to take such action amounts to the denial of a
substantial right.
N.C.G.S. § 1A-1, Rule 61 (2005). Respondent-father has failed to
cite any finding made by the trial court “out of Court,” and none
appear on the face of the record. As respondent-father has not
shown how he was prejudiced, this assignment of error is overruled.
Affirmed.
Chief Judge MARTIN and Judge MCCULLOUGH concur.
Footnote: 1