In Matter of T.M.

654 S.E.2d 502, 187 N.C. App. 694, 2007 N.C. App. LEXIS 2568
CourtCourt of Appeals of North Carolina
DecidedDecember 18, 2007
DocketNo. COA07-911.
StatusPublished
Cited by2 cases

This text of 654 S.E.2d 502 (In Matter of T.M.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Matter of T.M., 654 S.E.2d 502, 187 N.C. App. 694, 2007 N.C. App. LEXIS 2568 (N.C. Ct. App. 2007).

Opinion

BRYANT, Judge.

Respondent-mother (A.M.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 *504and 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 admitting medical 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.

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 to object within ten days as provided by Rule 10.3, the medical records were deemed admissible.2

*505North 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., ___ N.C.App. ___, ___, 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 the hearsay rule is found in North Carolina General Statutes, section 8C-1, Rule 803(6), which provides in relevant part:

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654 S.E.2d 502 (Court of Appeals of North Carolina, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
654 S.E.2d 502, 187 N.C. App. 694, 2007 N.C. App. LEXIS 2568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-matter-of-tm-ncctapp-2007.