Where a two-month-old boy who had allegedly been physically mistreated by his father could not speak for himself, a child welfare court properly considered a nurse practitioner’s testimony about what the boy’s mother had told doctors about his injuries, the North Carolina Court of Appeals has ruled. In a case of first impression, the court found Sept. 19 that the mother’s statements were admissible under an exception to the hearsay rule.
J.M.’s mother brought him to a check-up in September 2015 when doctors found marks on his neck, evidence of fractures to his ribs and leg bones, and other injuries. The mother told doctors that the father was rough with J.M. and she had seen him punch the boy in the stomach. (North Carolina law makes an exception to rules regarding doctor-patient confidentiality in cases of suspected child abuse.)
Based on testimony and medical evidence, a Durham County District Court judge ruled that J.M. was an abused juvenile and that his sister was a seriously neglected juvenile, and that both were best served remaining in the custody of the Department of Social Services. DSS did not need to employ reasonable reunification efforts with the father, the judge ruled.
The father appealed, arguing, among other things, that the court’s findings of facts about what the mother—who did not testify—had said to doctors were supported only by inadmissible hearsay. Generally speaking, a witness’s testimony about what another person has said to him or her is not admissible in court, but the law recognizes some exceptions to the rule. Specifically, Rule 803(4) of the state’s Rules of Evidence permits testimony about statements made for the purposes of medical diagnosis or treatment.
North Carolina’s appellate courts had never considered whether the medical diagnosis exception permits hearsay statements by persons other than the patient obtaining treatment. However, the panel agreed with other jurisdictions, which have held that such testimony is admissible when the statements are made by the parent of a child who is unable to relay his or her own medical condition.
The court pointed to the North Carolina Supreme Court’s 2000 decision in State v. Hinnant, which held that testimony is admissible under the exception if the statements in question were both made for the purposes of, and reasonably pertinent to, diagnosis or treatment. The appeals court ruled that the mother’s statements satisfied both prongs of that test.
“In the present case, we note that the son was only two months old at the time his injuries were discovered and was thus unable to talk,” Chief Judge Linda McGee wrote for a unanimous court. “Nothing in the plain language of Rule 803(4) or in Hinnant requires the declarant to be the patient, and Respondent-Father’s reading of the exception leads to an unworkable result—he would necessarily exclude any statements made in connection with medical diagnosis or treatment for any individual who is unable to speak.”
The court said that the rationale that underpins the exception—that a patient has an incentive to be truthful when speaking to medical personnel in order to ensure they receive appropriate care—would apply equally as strongly to a parent who brings a very young child to a doctor for medical attention.
The court reversed and remanded the district court’s finding that J.M.’s sister was a seriously neglected juvenile, and vacated the part of the other releasing DSS from further reunification efforts, on unrelated grounds.
Joyce Terres of the North Carolina Office of Indigent Services in Durham represented the father. Terres argued that the statements were improperly admitted because there was no showing that the mother intended to make the statements for the purpose of diagnosis or treatment rather than to cast blame elsewhere for the child’s injuries.
“The purpose of the Rule 803(4) hearsay exception is that a patient is presumed to have had the motivation to speak truthfully when seeking medical care,” Terres wrote in an email. “I am concerned that this decision opens the door much too wide for using out-of-court statements by third parties speaking ‘on behalf of’ patients under this hearsay exception without consideration of other possible motives for their statements.”
Cathy Moore of the Durham County Attorney’s office represented the Department of Social Services. Erica Messimer of K&L Gates in Charlotte represented the Guardian ad Litem. Neither returned messages seeking comment on the court’s decision.
The 26-page decision is In re J.M. (Lawyers Weekly No. 011-285-17). The full text of the opinion is available online at nclawyersweekly.com.
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