Appeal by respondent from an order entered 29 August 2005 by
Judge Mitchell L. McLean in Wilkes County District Court. Heard in
the Court of Appeals 7 February 2007.
Paul W. Freeman, Jr. for petitioner-appellee Wilkes County
Department of Social Services.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, for
respondent-appellant mother.
Tracie M. Jordan for the Guardian ad Litem.
BRYANT, Judge.
A.H.
(See footnote 1)
(respondent) appeals from an order entered 29 August
2005 adjudicating her minor child, N.M.H., as an abused and
neglected juvenile and continuing the legal and physical custody of
the child with the Wilkes County Department of Social Services
(DSS). For the reasons below, we affirm the order of the trial
court.
Facts and Procedural History
On 2 September 2004, DSS filed a petition with the Wilkes
County District Court alleging N.M.H. was an abused and neglectedjuvenile. A Juvenile Summons was also issued on 2 September 2004,
and DSS assumed temporary nonsecure custody of N.M.H. DSS
attempted to place N.M.H. in a regular foster home, but could not
due to N.M.H.'s disruptive behavior. N.M.H. was subsequently
committed to the Children's Psychiatric Unit at Brenner's
Children's Hospital for one to two weeks and at the time of the
hearing on this matter was residing at a children's group home.
After several continuances, this case came on for hearing on
7 February 2005 before the Honorable Mitchell L. McLean, Judge,
presiding. The hearing in this matter concluded on 2 May 2005 and
the trial court entered its order adjudicating N.M.H. to be an
abused and neglected child on 29 August 2005. Respondent appeals.
_________________________
Respondent raises the issues of whether the trial court erred
in: (I) denying respondent's motion to exclude alleged hearsay
statements; (II) not conducting the adjudication hearing within
sixty days of the filing of the petition; (III) failing to enter
the adjudication and disposition order within thirty days of the
hearing on the petition; (IV) admitting and relying upon the
opinions of Lynn Moree; (V) admitting and relying upon the opinions
of Dr. Thomas Frazer; and (VI) making findings of fact number 14F,
14K, and 16.
I
Respondent first argues the trial court erred in denying her
motion to exclude alleged hearsay statements made by Lynn Moreeduring the adjudicatory hearing. Respondent's argument is
misplaced.
At the hearing on the juvenile petition, Ms. Moree was
permitted to testify as to statements made by N.M.H. during his
therapy sessions with her. These statements included that N.M.H
was scared of the bathroom, afraid his mother would hit him in the
bathroom; that he repeatedly said “flush his head” while playing
with a small doll during therapy sessions; and that he's afraid in
the bathroom because “Mommy and Daddy's going to hit me.”
Respondent objected to these statements on the grounds that they
were hearsay, both at trial and in a “Motion to Exclude Hearsay
Statements” filed 14 May 2005, twelve days after the last hearing
in this matter.
In hearings on a juvenile petition “where the juvenile is
alleged to be abused, neglected, or dependent, the rules of
evidence in civil cases shall apply.” N.C. Gen. Stat. § 7B-804
(2005). 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). However,
“[s]tatements 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[,]” are “not excluded by the hearsay rule,even though the declarant is available as a witness[.]” N.C. Gen.
Stat. § 8C-1, Rules 803, 803(4) (2005). “Rule 803(4) requires a
two-part inquiry: (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).
Here the statements were made to Ms. Moree during several
ongoing therapy sessions. Ms. Moree was a child and family
therapist at New River Behavioral Healthcare; had been a therapist
for sixteen years with her practice confined to working with
children and families; and had been licensed by the North Carolina
Board of Licensed Professional Counselors for eight or nine years.
She had a Bachelors Degree and Masters Degree in Psychology,
together with a number of postgraduate studies in the area of child
trauma, treatment of emotional and psychological disorders in
children, and the treatment of physical abuse, sexual abuse and
neglect. During the therapy sessions, N.M.H. was not directed by
Ms. Moree, and all of his actions and statements were spontaneous
events. N.M.H.'s statements went directly to Ms. Moree's diagnosis
of post-traumatic stress disorder, and considering all of the
objective circumstances of record surrounding the child's
statements it is clear that they were made for purposes of medical
diagnosis or treatment. Thus, the trial court did not err in
admitting these statements under Rule 803(4). Respondent also argues that the admission of these statements
violated her right to confront N.M.H. under the Confrontation
Clause of the Sixth Amendment to the United States Constitution.
Respondent did not raise her arguments of constitutional error in
her objections at the hearing and they are deemed waived on appeal.
State v. Anderson, 350 N.C. 152, 175, 513 S.E.2d 296, 310 (1999)
(holding “defendant's arguments of constitutional error were not
raised at trial and are thus deemed waived on appeal”);
see also
N.C. R. App. P. 10(b)(1). Further, the protections offered by the
Confrontation Clause of the Sixth Amendment are not available in
civil settings such as the case at hand.
See In re D.R., 172 N.C.
App. 300, 303, 616 S.E.2d 300, 303 (2005) (holding the Sixth
Amendment is not applicable in a hearing to terminate parental
rights). These assignments of error are overruled.
II and III
Respondent next argues the trial court erred in not conducting
the adjudication hearing within sixty days of the filing of the
petition to terminate her parental rights to N.M.H. Respondent
also argues the trial court erred in failing to enter the
adjudication and disposition order within thirty days of the
hearing on the petition to terminate her parental rights to N.M.H.
We disagree.
Under N.C. Gen. Stat. § 7B-801(c), “[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 itbe held at a later time.” N.C. Gen. Stat. § 7B-801(c) (2005).
N.C. Gen. Stat. § 7B-803, in turn, provides:
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). Additionally, the adjudicatory
order of the trial court “shall be reduced to writing, signed, and
entered no later than 30 days following the completion of the
hearing.”
N.C. Gen. Stat. § 7B-807 (2005).
This Court has repeatedly held that “a trial court's violation
of statutory time limits in a juvenile case is not reversible error
per se.”
In re S.N.H., 177 N.C. App. 82, 86, 627 S.E.2d 510, 513
(2006) (citing
In re C.J.B., 171 N.C. App. 132, 134, 614 S.E.2d
368, 369 (2005)). “Rather, we have held that the complaining party
must appropriately articulate the prejudice arising from the delay
in order to justify reversal.”
Id. (citing
In re As.L.G., 173 N.C.
App. 551, 619 S.E.2d 561, 565 (2005)). However, this Court “has
gravitated towards a pattern resembling a
per se rule of reversal
in all cases wherein the delay was approximately six months or
longer.”
In re J.N.S., __ N.C. App. __, __, 637 S.E.2d 914, 918
(2006) (Levinson, J., concurring) (citations omitted).
In the instant case, the Juvenile Petition was filed 2
September 2004. The initial hearing on the merits was set for 27September 2004, but was then continued a total of seven times and
finally began on 7 February 2005, 159 days after the filing of the
juvenile petition and ninety-nine days after the deadline mandated
by N.C.G.S. § 7B-801. Four of the continuances were granted
because this matter was not reached the day the hearing was
calendared, two of the continuances were granted because
respondent's attorney could not be in court on the day the hearing
was calendared, and one of the continuances was granted to allow a
third party to file motions to intervene in this matter. The
adjudication and dispositional hearings upon the petition concluded
on 2 May 2005, and the trial court entered its order in this matter
on 29 August 2005. The time from the conclusion of the hearings
until the order was filed was 119 days, or eighty-nine days past
the mandated time by which the trial court must enter its order.
Respondent contends that due to the numerous continuances and
failure to hold the initial hearing within the sixty-day mandate,
the trial court was without subject matter jurisdiction to
adjudicate the petition. However, this Court has repeatedly held
that “'time limitations in the Juvenile Code are not jurisdictional
in cases such as this one and do not require reversal of orders in
the absence of a showing by the appellant of prejudice resulting
from the time delay.'”
In re T.M., __ N.C. App. __, __, 638 S.E.2d
236, 239 (2006) (quoting
In re C.L.C., 171 N.C. App. 438, 443, 615
S.E.2d 704, 707 (2005),
aff'd per curiam in part and disc. review
improvidently allowed in part, 360 N.C. 475, 628 S.E.2d 760
(2006)). Respondent also argues she was prejudiced by the delays,but makes no showing of prejudice other than the passage of time:
a delay of ninety-nine days past the time mandated by N.C.G.S. §
7B-801; and a delay of eighty-nine days past the time mandated by
N.C.G.S. § 7B-807. We thus hold that respondent has not shown
sufficient prejudice to require reversal of the trial court's
order. Furthermore, “holding that the adjudication and disposition
orders should be reversed simply because they were untimely filed
would only aid in further delaying a determination regarding [the
child's] custody because juvenile petitions would have to be
re-filed and new hearings conducted.”
In re E.N.S., 164 N.C. App.
146, 153, 595 S.E.2d 167, 172,
disc. review denied, 359 N.C. 189,
606 S.E.2d 903 (2004). These assignments of error are overruled.
IV
Respondent next argues the trial court erred in admitting and
relying upon the opinions of Lynn Moree. Respondent contends that
evidentiary foundations for her testimony were not adequately laid,
she lacked a basis for her opinions, and she failed to adequately
opine with respect to the ultimate issue in violation of North
Carolina Rules of Civil Procedure 702, 703, and 704.
Our Supreme Court has held:
While the better practice may be to make a
formal tender of a witness as an expert, such
a tender is not required. Further, absent a
request by a party, the trial court is not
required to make a formal finding as to a
witness' qualification to testify as an expert
witness. Such a finding has been held to be
implicit in the court's admission of the
testimony in question. Defendant must
specifically object to the qualifications of
an expert witness in order to preserve the
objection.
State v. White, 340 N.C. 264, 293-94, 457 S.E.2d 841, 858
(citations omitted),
cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436
(1995).
Contrary to respondent's argument on appeal, no objection was
made at trial concerning whether or not Ms. Moree should be
considered an expert witness. Rather, continuing objections were
made concerning the use of hearsay statements by Ms. Moree in her
testimony and concerning whether the treatment was performed for
the preparation of trial and not for evaluation purposes. By
failing to specifically object to Ms. Moree's qualifications at
trial, respondent has waived her right to raise that issue on
appeal.
Id.;
see also N.C. R. App. P. 10(b)(1).
Respondent also argues the trial court erred in relying on the
opinion of Ms. Moree because her “diagnoses and testimony were
based almost exclusively upon hearsay declarations by the minor
child.” For the reasons discussed in Issue I,
supra, these
statements were admissible under Rule 803(4) of the North Carolina
Rules of Evidence, and thus, in part, establish the foundation of
her opinions. This assignment of error is overruled.
V
Respondent also argues the trial court erred in admitting and
relying upon the opinions of Dr. Thomas Frazer. Respondent
contends that because Dr. Frazer was not proffered nor accepted by
the trial court as an expert witness, his testimony is inadmissible
opinion testimony which should have been disregarded by the trialcourt and cannot be the foundation of any of the trial court's
findings of fact. We disagree.
Again, contrary to respondent's argument on appeal, no
objection was made at trial concerning whether or not Dr. Frazer
should be considered an expert witness. Respondent made several
objections concerning the foundation of Dr. Frazer's opinions, but
none specifically challenging Dr. Frazer's ability to qualify as an
expert witness. In reviewing the transcript of the hearing before
the trial court, it is clear that all parties treated Dr. Frazer as
an expert witness, including respondent. On cross-examination,
respondent's trial counsel questioned Dr. Frazer regarding the
foundations of his medical opinions, and repeatedly challenged Dr.
Frazer's medical opinions as to the causation of the injuries to
N.M.H.'s scrotum, lip and chest. Once more, we hold that by
failing to specifically object to Dr. Frazer's qualifications at
trial, respondent has waived her right to raise thist issue on
appeal.
White, 340 N.C. at 293-94, 457 S.E.2d at 858
;
see also
N.C. R. App. P. 10(b)(1). This assignment of error is dismissed.
VI
Respondent lastly contends the trial court erred in making its
findings of fact number 14F, 14K, and 16, arguing they are not
supported by clear, cogent and convincing evidence. “Allegations
of abuse and neglect must be proven by clear and convincing
evidence.”
In re M.J.G., 168 N.C. App. 638, 643, 608 S.E.2d 813,
816 (2005);
see also N.C. Gen. Stat. § 7B-805 (2005). “In a
non-jury [abuse and] neglect adjudication, the trial court'sfindings of fact supported by clear and convincing competent
evidence are deemed conclusive, even where some evidence supports
contrary findings.”
In re Helms, 127 N.C. App. 505, 511, 491
S.E.2d 672, 676 (1997).
Here, the trial court's findings of fact number 14F and 14K
relate to Dr. Frazer's medical opinions regarding the abuse of
N.M.H. Similarly, finding of fact number 16 relates to events
observed by Lynn Moree during her therapy sessions with N.M.H. and
her opinions regarding N.M.H.'s psychological condition. In her
argument to this Court on this issue, respondent repeats her
arguments presented in Issues IV and V,
supra, contending that
because Dr. Frazer and Ms. Moree were not tendered as expert
witnesses their testimony cannot support the trial court's findings
of fact. As we have held that respondent has waived her arguments
regarding whether Dr. Frazer and Ms. Moree were admitted as expert
witnesses, we hold the trial court did not err in admitting the
opinions of Dr. Frazer and Ms. Moree, and did not err in relying on
those opinions in making its findings of fact. Further, we find
the challenged findings of fact are supported by clear, cogent and
convincing evidence. These assignments of error are overruled.
Affirmed.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
Footnote: 1