Opinion
No. 07-390.
Filed 2 October 2007.
Davidson County Nos. 06-J-121-23.
Appeal by respondent from orders entered 22 January 2007 and 1 March 2007 by Judge Wayne L. Michael in Davidson County District Court. Heard in the Court of Appeals 20 August 2007.
Don Willey, for respondent-appellant. Charles E. Frye, III, for petitioner-appellee. Laura B. Beck, for appellee Guardian ad Litem.
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 to treat." 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 the doctor'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 by licking 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 civil proceedings 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 ___, 126 S.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).