IN THE INTEREST OF T.A., Child, and concerning A.L. Mother, and J.L. Stepfather, Respondents.
Annotate this CaseJ.L. Stepfather, Respondents.,
[2003 SD 56]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Sixth Judicial Circuit
Bennett County, South Dakota
Hon. Kathleen F. Trandahl, Judge
GEORGE F. JOHNSON of
Johnson, Eklund, Nicholson & Peterson
Gregory, South Dakota
Attorneys for appellants A.L. & J.L
LAWRENCE E. LONG
Attorney General
KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota
Attorneys for appellee State.
ANITA L. FUOSS
Murdo, South Dakota
Attorney for appellee child.
Argued on March 26, 2003
Opinion Filed 5/14/2003
#22517
SABERS, Justice
[¶1.] A petition alleging abuse and neglect of T.A. was filed on October 10, 2001 and T.A. was removed from his home and placed in foster care. After an adjudicatory hearing, T.A. was adjudged abused and neglected. After a dispositional hearing, T.A. was placed in a residential facility where he attended school and received therapy.[1] J.L., T.A.’s stepfather and A.L., T.A.’s mother (collectively Parents) appeal the trial court’s determination that T.A. was abused and neglected.
FACTS[¶2.] At the time of the events in question, T.A. was twelve years old. He is a special needs child who has been diagnosed with Tourette’s Syndrome and Attention Deficit/Hyperactivity Disorder (ADHD).[2] On October 6, 2001, T.A. and his family were moving into a new home which was located approximately fifty feet from their former home. T.A.’s mother and stepfather testified that throughout the day he was disrespectful and defiant, refusing to assist the family in the move. Toward the end of the day, T.A. was asked repeatedly by his mother to go to the old house and retrieve the trashcan. When he finally complied, he did so by emptying the trash onto the kitchen floor of the old house and tossing the trashcan onto the floor of the new house. His step-sister came to the new house and informed Parents that he had thrown the garbage on the floor. Stepfather testified that T.A. vehemently denied having done so and began crying and screaming. T.A.’s stepfather determined that the child was “out of control” so he took him by the wrist, led him to T.A.’s bedroom and proceeded to spank T.A. with a belt. Stepfather testified that he spanked the child eight to ten times with the belt.
[¶3.] Several days later, T.A.’s sister saw a large bruise on his thigh and reported it to his biological father, who reported it to the authorities. On October 9, 2001, agents from the Department of Social Services (DSS) and the Sheriff’s office went to T.A.’s school to speak with him. The existence of the bruise was confirmed and T.A. was taken to a physician’s assistant, Diane Kranz, who found bruises on T.A.’s shins, thigh, posterior, his belt line and his arms. T.A. told Kranz that his stepfather caused some of the bruises and others were caused when he fell running across his yard at night.
[¶4.] A petition alleging abuse and neglect was filed on October 10, 2001. The adjudicatory hearing was held on November 14 and 19, 2001 and January 18, 2002. The trial court filed the adjudication order on July 1, 2002. A dispositional hearing was held July 19, 2002 and a dispositional order was entered on August 20, 2002. The Parents appeal raising six issues for review:
1. Whether there is sufficient evidence to sustain the trial court’s finding of abuse and neglect.
2. Whether the trial court improperly joined the adjudicatory and dispositional hearings.
3. Whether the trial court abused its discretion in allowing Diane Kranz, the physician’s assistant, to testify as an expert.
4. Whether the trial court abused its discretion in admitting pictures of T.A.
5. Whether SDCL 26-8A-2 is unconstitutional.
6. Whether the trial court abused its discretion in allowing an amendment of the abuse and neglect petition.
We affirm the trial court on all issues.
STANDARD OF REVIEW
[¶5.] In reviewing abuse and neglect findings by the trial court, it is our duty to “uphold the trial court’s decision unless the findings of fact are 'clearly erroneous’.” Interest of D.K., 245 NW2d 644, 649 (SD 1976) (citing Matter of D.T., 237 NW2d 166 (SD 1975); In re Estate of Hobelsberger, 85 SD 282, 181 NW2d 455 (1970)). Therefore, the trial court’s decision will be set aside only if after a review of all the evidence, we are left with a “definite and firm conviction that a mistake has been made.” Matter of A.M., 292 NW2d 103, 105 (SD 1980) (citations omitted).
[¶22.]
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING DIANE KRANZ, THE PHYSICIAN’S ASSISTANT, TO TESTIFY AS AN EXPERT.
[¶23.] After DSS took T.A. into custody, his caseworker took him to be examined by Diane Kranz, a physician’s assistant. Kranz viewed the bruising on T.A.’s body, took pictures and discussed the bruises with him. Kranz was the only medical person to view the bruises within days of the spanking. The State called Kranz to testify about the bruising and her opinions regarding the cause of the bruises. Parents objected to her qualification as an expert because she was not a physician and because she performed no tests to determine the cause of the bruising.
[¶24.] The trial court retains “broad discretion in ruling on the admissibility of expert opinions. [] We will not reverse a court’s evidentiary rulings absent a clear abuse of discretion.” Garland v. Rossknecht, 2001 SD 42, ¶9, 624 NW2d 700, 702 (internal and additional citations omitted). The trial court did not abuse its discretion in allowing Kranz’s testimony.
[¶25.] Parents’ first objection to admission of Kranz’s testimony was that the State failed to lay a foundation establishing her as an expert. On voir dire, Parents’ attorney established that as a physician’s assistant, Kranz was required to be supervised by a doctor because the doctor was the medical expert. This voir dire, Parents contend, established that Kranz was not an expert.[4] The arguments offered in support of this assertion are: 1) that Kranz admitted on voir dire that she was not an expert in the medical field, and 2) that because she is not a doctor she cannot be qualified as an expert. Neither assertion stands in light of our rules of evidence on the admissibility of expert testimony.
[¶26.] The opinion of the witness regarding her own expertise is not controlling. The court must determine whether the witness will be considered an expert, and will make that determination independent of what the witness believes about his or her expertise. This witness was the only medically trained person to see the child within days of the spanking. Furthermore, SDCL 19-15-2 provides that a person “qualified as an expert by knowledge, skill, experience, training, or education may testify . . . in the form of an opinion or otherwise.” In other words, there is no requirement that the person actually be a doctor in order to be qualified to give a medical opinion. The trial court need only determine “that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Estate of Dokken, 2000 SD 9, ¶40, 604 NW2d 487, 498 (citations omitted). These determinations were made by the trial court and there was no showing of abuse of discretion.
[¶27.] Parents next contend that under Daubert and Kumho, Kranz’s opinions should have been stricken from the record because she performed no tests in arriving at her opinions. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 113 SCt 2786, 125 LEd2d 469 (1993); Kumho Tire Co. Ltd., v. Carmichael, 526 US 137, 119 SCt 1167, 143 LEd2d 238 (1999). Parents’ argument misapprehends the applicability of these cases. This Court has stated that Daubert and its progeny “offer general guides for courts to consider in assessing reliability: testing, peer review, error rate and general acceptance[.] These factors cannot be applied in all settings. In some instances, reliability must focus on 'knowledge and experience’.” Garland, 2001 SD 42, ¶11, 624 NW2d at 703 (internal citations omitted). Parents would have this Court create a requirement that the medical profession devise a test to determine how and why a child bruises in order for a medical professional to testify as to whether the child’s injuries are consistent with abuse. To our knowledge, there is no such test available and it strains common sense to create such a requirement. Kranz testified that in addition to her licensure as a physician’s assistant, she had also worked as a nurse. She was involved in numerous child protection cases and was familiar with blunt trauma injuries. This was sufficient to qualify Kranz to testify as an expert in the instant case and Daubert does not require more.
[¶28.] The trial court was entitled to accept or disregard the opinions of both experts in this case. Parents’ expert was a medical doctor rather than a physician’s assistant. However, he never examined the child, and testified only as to his opinion based on photographs of the bruises. His own testimony gives sufficient justification for rejection of his opinions. Specifically, he was testifying as to his opinion of how the bruises were caused based on pictures that he repeatedly stated were of poor quality. There is no showing that the trial court abused its discretion on this issue.
[¶29.]
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING PICTURES OF T.A.
[¶30.] Parents argue that the trial court abused its discretion in allowing the State to introduce pictures of T.A.’s bruises into evidence. Parents contend that they made several written requests for the pictures but did not get the pictures in time for their expert to view them before he testified. Relying on SDCL 26-7A-60,[5] Parents argue that the State violated discovery rules and should have been prevented from entering the pictures into evidence.
[¶31.] SDCL 26-7A-73 provides in part that when a party fails to comply with discovery, the court “may order the party to permit the discovery or inspection, grant a continuance or prohibit the party from introducing evidence not disclosed or the court may enter another order that the court considers just under the circumstances.” The trial court denied Parents’ motion to exclude the pictures. Parents argue this was an abuse of discretion because they were prevented from having their expert view the pictures before he testified. They contend this was prejudicial because the State’s expert, who, due to scheduling difficulties, testified after Parents’ expert, relied on the pictures for her testimony, and Parents’ expert was unable to counter her testimony because he had no opportunity to view the pictures before he testified.
[¶32.] The record does not support Parents’ assertion that the pictures should have been excluded. First, Parents’ attorney viewed the pictures prior to the hearing and the record provides no evidence that the State’s Attorney prevented Parents’ access to the pictures. Second, although Parents’ attorney wrote letters to the State’s Attorney regarding the pictures, there was no motion to compel production of the pictures, although a motion to compel is not mandatory. Third, SDCL 26-7A-73 gives the court discretion to determine whether and how to sanction parties for failure to comply with discovery, and refusal to admit the evidence is only one possible option. Parents were offered a continuance, which they declined. Finally, Parents recalled their expert to attempt to rebut Kranz’s testimony therefore eliminating any claimed prejudice resulting from the delay in receiving the pictures. There is no showing that the trial court abused its discretion in denying the Parents’ motion to exclude the pictures.
[¶33.]
WHETHER SDCL 26-8A-2 IS UNCONSTITUTIONAL.
[¶34.] Parents argue that South Dakota’s child abuse statute, SDCL 26-8A-2 is unconstitutionally broad, vague and ambiguous. Parents acknowledge that the predecessor statute to SDCL 26-8A-2 has withstood several attacks on its constitutionality, but argue that this is the first case “with facts and circumstances that do not immediately and automatically lend themselves to a finding of abuse.” This Court has consistently upheld the constitutionality of South Dakota’s child abuse statute. Parents’ assertion that the facts of this case call its constitutionality into clear question for the first time presumes that this Court declared the statute constitutional based only on the specific facts of the previous cases. This is not supported by our precedent. We have held that the predecessor to this statute “convey[ed] sufficiently definite warning as to proscribed conduct when measured by common understanding and practice. Due process requires no more.” Matter of D.T., 89 SD 590, 596, 237 NW2d 166, 169 (1975) (citing US v. Petrillo, 332 US 1, 67 SCt 1538, 91 LEd 1877). The fact that Parents’ actions in this case are arguably less egregious than those of parents in prior cases does nothing to lessen the viability of our previous holdings concerning constitutionality. A reasonable person would be aware that forcing a child face down on a mattress, grabbing the child’s arm tight enough to leave bruises and beating him hard enough with a belt to leave bruises constitutes abuse rather than reasonable corporal punishment.
[¶35.]
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING AN AMENDMENT OF THE ABUSE AND NEGLECT PETITION.
[¶36.] On the day of the adjudicatory hearing, the State amended the abuse and neglect petition. One amendment added the allegation that the child had been subjected to repeated spankings over several months.[6] The amendment also added to the original allegation that the spanking of October 6 resulted in bruises along T.A.’s belt-line, the bottom of his buttocks, his right hip, thigh and other bruises on his arms and wrist. The original petition named only the bruise on his right hip. Parents argue that allowing the State to proceed on the amended petition was abuse of discretion.
[¶37.] The State made no motion to amend but rather stated before the court that “I thought it was necessary to amend the petition, and so I amended it, and immediately faxed a copy to [the other attorneys].” Parents objected to the amended petition, but the trial court overruled the objection noting that leave to amend should be freely given when justice requires. See SDCL 15-6-15(a). The trial court then offered Parents a continuance in order to prepare to better meet the amended petition. After discussion with their attorney, Parents declined the offer of a continuance.
[¶38.] We have held that a “trial court may permit the amendment of pleadings before, during and after trial without the adverse party’s consent.” Tesch v. Tesch, 399 NW2d 880, 882 (SD1987) (citations omitted). The court’s decision to allow an amendment will not be disturbed on appeal unless there is a clear abuse of discretion which results in prejudice to the non-moving party. Id. Parents allege that they were prejudiced by the amendment because the amendments “cured errors and inadequacies which were the basis for [Parents’] motions in limine” filed prior to the adjudicatory hearing. The amendments did address issues which Parents raised in their motions in limine, and having already raised those issues, they were presumably prepared to make those arguments again and were neither surprised nor prejudiced. Furthermore, Parents were offered the opportunity to continue the hearing and although they now claim they were surprised by the changes in the petition, they declined the opportunity. Finally, SDCL 26-7A-6 provides that courts are to construe rules liberally for the purpose of protecting the children. The State is required to file the original petition of abuse and neglect within forty eight hours of the time a child is taken into custody. SDCL 26-7A-14. Therefore, a thorough investigation is seldom complete at the time the original petition is filed. In order to better protect children in abuse and neglect proceedings, trial courts should allow amendment of petitions to conform to the subsequent investigation. Parents have failed to show that allowing the amendments to the original petition was an abuse of discretion.
[¶39.] Affirmed.
[¶40.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.
[1] . While this case was pending on appeal, all parties requested a limited remand to allow the trial court to take evidence, and if appropriate, authorize T.A.’s return home. We granted the request. T.A.’s return home does not, however, moot this appeal because Parents are appealing the trial court’s finding of child abuse rather than the child’s placement.
[2] . ADHD and its effects are discussed at length in footnote 3 and the surrounding text in Meldrum v. Novotny, 2002 SD 15, ¶40-45, 640 NW2d 460, 467-68.
[3] . Among the findings the trial court relied on in its determination that the child was abused and neglected were:
1) J.L. admitted that he grabbed T.A.’s arm and forced him over onto the mattress to administer the spanking;
2) J.L. admitted that he held T.A. down and hit him 8 to 10 times with a doubled over belt;
3) J.L. admits that while he was hitting T.A. on the posterior, T.A. tried to squirm away and J.L. hit him on the lower back;
4) During the beating, T.A. was wearing jeans;
5) J.L. testified that when he spanks he continues to hit T.A. until T.A. relaxes and J.L. has control over him again;
6) J.L. told the Deputy Sheriff that on the evening of October 6, T.A. “did get me rather riled”;
7) Although Parents testified that they use numerous disciplinary tactics, on the day in question, none other than spanking were utilized;
8) A.L. testified that she knew J.L. was going to hit T.A. with a belt and she approved;
9) A.L. refused to ask J.L. to temporarily leave the house during pendency of the proceedings, forcing foster care placement for the child;
10) Photographs of T.A.’s belt line showed bruising consistent with being hit with a belt;
11) T.A. had bruising on his forearms and wrists that he received while trying to protect himself from the belt;
12) J.L. admits that he did give T.A. a “whipping with the belt” and that he gave T.A. “a pretty good whomp with a belt.”;
13) Although he testified he did not believe he left bruises with the spanking, J.L. admitted that he could have because he was “sure putting it on him good enough to get back in control of the situation.”
[4] . The exchange between Parents’ counsel and Kranz was as follows:
Q: You are a P.A., correct?
A: Yes, I am.
Q: That means you are an assistant to a doctor?
A: Yes.
Q: And that means that the doctor has to supervise your work?
A: Yes he does.
Q: And the doctor supervises your work because he is an expert in the
medical field?
A: Yes.
Q: And you have somebody supervise your work because you are not an
expert in the medical field?
A: Yes.
[5] . SDCL 26-7A-60 provides:
On the written request of a respondent or a child, the State’s Attorney shall permit the respondent or child to inspect and copy or photograph books, papers, documents, photographs . . . which are in the possession, custody or control of the State’s Attorney and which are material to the preparation of the respondent’s or child’s case, which are intended for use by the State’s Attorney as evidence in chief at the hearing, or which were obtained from or belong to the respondent or child.
[6] . This allegation was dismissed at the close of the State’s case because the State failed to prove the previous spankings occurred.
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