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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-913

NORTH CAROLINA COURT OF APPEALS

Filed: 5 June 2007

IN THE MATTER OF:

    N.M.H.,                        Wilkes County
    a Minor Child.                    No. 04 J 130

    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
    Initials are used throughout to protect the identity of the juvenile.

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