In re A.W., 283 N.C. App. 127 (2022)

Facts: Father appeals an adjudication of his two daughters based upon sexual abuse, arguing the court erred by admitting over his objection a child medical exam (CME) that contained hearsay and allowing an expert to testify over his objection that her diagnosis was the child was a victim of sexual abuse. DSS was contacted in 2019 after the two sisters reported sexual abuse by their father to father’s girlfriend. There were prior incidents of sexual abuse, with an earlier report made in 2013 which resulted in a CME. In the most recent disclosure, a second CME was conducted and consisted of forensic interviews and a physical exam. During the physical exam, the doctor found a tissue tag in one of the girl’s vagina’s and in determining whether it was indicative a trauma compared the physical exam to that of the 2013 CME where no tag was noted.

• Expert Opinion regarding Child Sexual Abuse: Admissibility of expert testimony is reviewed for an abuse of discretion. Although the rules of evidence apply to adjudication hearings, the impact of improper expert testimony is distinguishable from criminal trials. Rather than a jury, the court hears the evidence and is presumed to disregard incompetent evidence. A reversal based on the admission of incompetent evidence results only if there is prejudice, which the appellant must show that the trial court improperly relied on the expert’s assessment of the victim’s credibility. Unlike the criminal opinions relied upon by father (State v. Stancil and State v. Grover), in this case the expert relied on physical evidence as well as the child’s disclosure. The physical evidence of the tissue tag was consistent with the child’s statements as to what occurred. Although the expert testified on cross-examination that she would have made the same diagnosis if the tissue tag was not present, which was an inadmissible bolstering of the victim’s credibility, father cannot object to testimony his own counsel elicited on cross. There was no prejudice as father did not show the court improperly considered the expert’s bolstering of credibility.
• Hearsay: The CME was admitted over father’s objection after the court determined it met the hearsay exceptions for statements made for the purpose of diagnosis and treatment (Rule 803(4)) and a regularly kept business record (Rule 803(6)).  Because father only challenged the admission under Rule 803(4), the unchallenged ground as a business record exception remains. The court did not err.