IN THE MATTER OF: Davidson County
G.D.H., D.G.H., and N.C.H., Nos. 06 J 121-123
Minor Children
Don Willey, for respondent-appellant.
Charles E. Frye, III, for petitioner-appellee.
Laura B. Beck, for appellee Guardian ad Litem.
STEELMAN, Judge.
By failing to object to a medical expert's opinion that child
abuse had in fact occurred, respondent-mother failed to preserve
that issue for appellate review. This Court is bound by its prior
rulings that Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177
(2004), is inapplicable to juvenile cases. See, e.g., In re D.R.,
172 N.C. App. 300, 303-04, 616 S.E.2d 300, 303 (2005).
T.H. (mother) appeals from two orders of the district court.
In the first order, the court adjudicated mother's seven-year-old
daughter, G.D.H., six-year-old son, D.G.H., and five-year-old son,
N.C.H., abused and neglected juveniles. The second, a
dispositional order, placed the children in the legal and physical
custody of the Davidson County Department of Social Services(“DSS”). The three respondent-fathers have relinquished their
parental rights to the children and are not parties to this appeal.
On 31 May 2006, DSS received a report that G.D.H. had made
statements indicating inappropriate sexual contact by mother and
her boyfriend, Keith Hill. DSS investigator Lisa Gammons contacted
the Lexington Police Department and went to Southwest Elementary
School to interview the child. After speaking to G.D.H., D.G.H.,
N.C.H., Hill, mother, and school officials, Gammons scheduled a
child medical evaluation (“CME”) for each child with Dr. Robert
Timberlake at Lexington Pediatrics on 2 June 2006. Gammons later
interviewed the school social worker, Lisa Childress, regarding the
initial disclosures by G.D.H. Mother denied any possibility of
sexual abuse but consented to the children's placement in the home
of her sister, L.R.A.
After receiving the CME reports prepared by Dr. Timberlake,
DSS filed juvenile abuse and neglect petitions on 22 June 2006,
alleging that G.D.H., D.G.H., and N.C.H. were subjected to
“repeated acts of sexual abuse” by mother and Hill. The petitions
recited disclosures made by each child to Gammon and Dr. Timberlake
on 31 May 2006 and 2 June 2006, as well as additional statements
G.D.H. made to Childress. The children described Hill as engaging
in oral and vaginal intercourse with G.D.H. and inserting his
fingers into G.D.H.'s vagina while mother watched. The children
further asserted that mother watched Hill touch D.G.H.'s and
N.C.H.'s penises with his hand and mouth, placed her hand between
Hill's and G.D.H.'s “privates,” and “'sometimes she touche[d]herself[.]'” The petitions also alleged that Hill had been
previously convicted of child sexual abuse in another state.
Finally, they noted Dr. Timberlake's conclusions that the children
had been sexually abused.
The district court held a hearing on 16 November 2006. DSS
presented testimony from Dr. Timberlake regarding his evaluations
of G.D.H., D.G.H., and N.C.H., as well as his written CME reports
based upon the children's physical examinations, interviews, and
medical and behavioral histories. Dr. Timberlake noted that he had
been the children's pediatrician “since they were infants all the
way until 2001[,]” and that the children continued to see another
pediatrician in his office thereafter. The court held that Dr.
Timberlake could testify as an expert witness in the fields of
pediatric medicine, child sexual abuse, and evaluations under the
protocols of the North Carolina Child Medical Evaluation Program
(“CMEP”). Mother objected to the introduction of any statements
made to Dr. Timberlake by the minor children. The court ruled that
the children's statements were admissible under the “medical
diagnosis or treatment” exception to the hearsay rule, N.C.R. Evid.
803(4). The court further ruled that statements made by the
children and third parties to the doctor were admissible as the
basis of his expert opinion.
Dr. Timberlake testified that he interviewed G.D.H. “just
before her seventh birthday[,]” and explained that he was examining
her in order to determine “if anything was hurt, if anything was
injured, or if anything had happened to her that [he] needed totreat.” G.D.H. stated that Hill “had told her not to tell anyone
what they did or that she'd get a whooping[,]” and that mother
“told her just [as] recently as the day before on the phone not to
talk about anything that [her] mother or Keith had did [sic] so no
one would get into trouble.” After being assured that Dr.
Timberlake was there “to treat her,” rather than to “get people in
trouble,” G.D.H. told him the following:
Keith would touch her vagina with his fingers.
She also said that Keith would, quote, put his
private up inside her vagina, that Keith would
put his mouth or tongue on her private areas.
She saw Keith touch both her brother[s']
penises. She said that her mother was there
sometimes when Keith did all of these things
to her and the boys. She denied [her] mother
doing anything to her body, denied any oral
penile contact, and she denied anal contact.
During his physical examination of G.D.H., Dr. Timberlake found
“three disruptions and tears through the margin of the hymen,”
which were “indicative of a penetrating vaginal event” and
consistent with “a pointed sharp object . . . penetrating into the
vaginal area.” He deemed this finding to be “very significant” and
consistent with G.D.H.'s account of sexual abuse. Dr. Timberlake
testified without objection that he had concluded to a reasonable
degree of medical certainty “that [G.D.H.] was definitely a victim
of child sexual abuse.” The trial court admitted Dr. Timberlake's
CME report for G.D.H. over defendant's objection.
Dr. Timberlake next described his evaluation of D.G.H., who
was “just a few months shy of turning six years old” on 2 June
2006. Dr. Timberlake explained to the child that he was in thedoctor's office “to be examined and to treat him for anything that
could come up.” D.G.H. revealed to Dr. Timberlake that:
Keith would often touch his penis or that of
his brother's [sic] and he indicated this by
his hands. . . . [H]e mentioned that Keith
would do things to [G.D.H.] with his penis in
her private area while the boys or the mother
watched. And that Keith put his mouth on
[G.D.H.]'s private. He denied . . . any anal
touching or oral sex as well.
Although D.G.H.'s physical exam was normal in all respects, Dr.
Timerlake noted that “in over nearly [sic] ninety percent of boys
that have been abused, you'll have a normal examination.” Based on
D.G.H.'s medical history, interview, and examination, Dr.
Timberlake formed the opinion to a reasonable degree of medical
certainty that he was “a victim of child sexual abuse.” Again,
mother did not object to this testimony. The court overruled her
subsequent objection to D.G.H's written CME report based on its
inclusion of hearsay.
As to his evaluation of N.C.H., Dr. Timberlake testified that
the child was “a couple of months shy of turning five” years old on
2 June 2006, and was “a little less verbal” than his siblings. As
with the other children, Dr. Timberlake explained to N.C.H. that he
was going “to just examine him and to see if there was anything
that needed to be treated that had happened or . . . that needed to
be done.” Dr. Timberlake gave the following account of N.C.H.'s
interview:
[H]e was very quiet during most of the
interview. But he did reveal to me that Keith
had touched him and his brother on their
penis[es]. . . . He also said Keith would
lick his penis and [N.C.H.] demonstrated bylicking with his tongue in the air and
pantomiming. He also put his _ I made a note
that Keith put his finger inside N[.C.H.]'s
rectum and he, by pointing and
demonstrating[,] showed me that. And [I] also
made a note that he and his brother watched
Keith do things to G[.D.H.] and that mother
had witnessed these.
N.C.H.'s physical examination revealed no abnormalities. In light
of the child's consistent accounts of the abuse he received at the
hands of Hill, both to Dr. Timberlake and others, Dr. Timberlake
concluded “that he was indeed a victim of child sexual abuse as
well.” Mother did not object to this testimony but reiterated her
“earlier objection” to the hearsay contained in Dr. Timberlake's
written CME report. The trial court again overruled her objection
and admitted the exhibit.
Gammons testified that she entered into a written agreement
with mother on 31 May 2006, as part of the children's safety
assessment. Mother agreed “not to talk with the children about the
case, about the sexual abuse, [or] about anything regarding the
case whatsoever.” The following day, 1 June 2006, L.R.A. reported
that mother had instructed G.D.H. by telephone “that when she
talked to the doctor to tell him that Keith had not done anything
to her, that it was someone at daycare.” Gammons immediately drove
to mother's house and confronted her about L.R.A.'s accusation.
Mother admitted to the conversation with G.D.H., “apologized for
talking with [her] like that[, and] said it wouldn't happen again.”
Based on the evidence at the adjudication hearing, the
district court found that G.D.H., D.G.H., and N.C.H. were abused
and neglected juveniles as alleged in the petitions. At the disposition hearing, the court heard that mother and Hill were
awaiting trial on felony charges related to their sexual abuse of
the minor children. DSS presented additional evidence that mother
had engaged in pornographic correspondence with sex offenders
imprisoned in the Department of Correction, including an inmate
convicted of more than thirty felonious sex offenses upon children,
Randy Vardner. Mother offered to let Vardner reside in her home
after his release from prison and “informed him of the presence of
[G.D.H.] in her home.” In May of 2006, Vardner sent G.D.H. a
birthday card referring to her as “sweetheart.” Based on the
recommendation of DSS and the Guardian ad litem, the court awarded
legal and physical custody of the children to DSS, relieved DSS of
further efforts towards reunification, and established a permanency
plan of termination of mother's parental rights, followed by
adoption. The court forbade further contact between mother and the
children pending the resolution of her criminal prosecutions.
In her first argument, mother contends that the trial court
erred by allowing Dr. Timberlake to render an opinion that D.G.H.
and N.C.H. had been sexually abused, despite the lack of physical
evidence of abuse. Citing decisions such as State v. Dixon, 150
N.C. App. 46, 52, 563 S.E.2d 594, 598 (2002), she asserts that a
medical expert who offers a diagnosis of sexual abuse in the
absence of physical findings impermissibly vouches for the
credibility of the alleged victim. We do not reach the merits of
this claim. “In order to preserve a question for appellate review, a party
must have presented to the trial court a timely request, objection
or motion, stating the specific grounds for the ruling the party
desired the court to make . . . .” N.C.R. App. P. 10(b)(1).
Because mother raised no objection to Dr. Timberlake's opinion that
D.G.H. and N.C.H. were victims of sexual abuse, she has failed to
preserve this issue for review on appeal. In re Morales, 159 N.C.
App. 429, 432, 583 S.E.2d 692, 694 (2003) (Having “made no
objection to Dr. Leinenweber's testimony that she had diagnosed
Lilly as being sexually abused[, r]espondents cannot now challenge
Dr. Leinenweber's testimony.”); accord State v. Ziglar, 308 N.C.
747, 755, 304 S.E.2d 206, 212 (1983) (“[T]he defendant failed to
object to the question concerning [the expert]'s opinion and did
not make a motion to strike his answer. Therefore, any objection
is waived.”). Accordingly, we dismiss this argument and decline to
rule on any related assignments of error.
In her second argument, mother contends that the admission of
her children's out-of-court statements into evidence violated her
Sixth Amendment right to confrontation under the holding of the
United States Supreme Court in Crawford v. Washington, 541 U.S. 36,
158 L. Ed. 2d 177. We disagree.
In her brief, mother concedes that the trial court's
“admission of these hearsay statements by the three non-testifying
juveniles . . . under Rule 803(4) was proper.” Mother further
acknowledges this Court's prior holding that the Sixth Amendment
protections established by Crawford do not apply in civilproceedings under the Juvenile Code. See, e.g., In re D.R., 172
N.C. App. 300, 303-04, 616 S.E.2d 300, 303 (2005). However, she
asks this Court to reconsider its holding in light of the expanded
definition of “testimonial” hearsay established by the United
States Supreme Court in Davis v. Washington, 547 U.S. __, 126 S.
Ct. 2266, 165 L. Ed. 2d 224 (2006).
As a threshold matter, by its own terms, the Confrontation
Clause applies only to “criminal prosecutions[.]” U.S. Const.
Amend. VI. Accordingly, this Court has held that Crawford does not
apply to Chapter 7B proceedings involving parental rights, because
such proceedings are civil, rather than criminal, in nature. In re
D.R., 172 N.C. App. at 303-04, 616 S.E.2d at 303 (citing In re
Faircloth, 153 N.C. App. 565, 573, 571 S.E.2d 65, 71 (2002)). We
are bound by our prior holdings on this issue. In re Civil
Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989).
As to mother's request for reconsideration in light of Davis,
she did not present this argument to the trial court and is thus
barred from raising it on appeal. State v. Chapman, 359 N.C. 328,
366, 611 S.E.2d 794, 822 (2005); N.C.R. App. P. 10(b)(1). Even if
we could reach the issue, there is nothing in the Supreme Court's
decision in Davis that would extend Confrontation Clause
protections to civil cases. The decision elaborated upon the
distinction between “testimonial” and “nontestimonial” hearsay
under Crawford in the context of a 911 call and statements to law
enforcement officers at a crime scene. Davis, 547 U.S. at __, 126S.Ct. at __, 165 L. Ed. 2d at 239-241. The Davis case has no
applicability to the instant case.
This argument is without merit.
The record on appeal includes additional assignments of error
not addressed by respondent-mother in her brief to this Court.
Pursuant to N.C.R. App. P. 28(b)(6), they are deemed abandoned.
As to first argument DISMISSED.
As to second argument AFFIRMED.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).
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