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12/20/91 J.A. & L.A. APPELLEES

December 20, 1991

IN RE: J.A. & L.A., APPELLEES


Appeals from the Superior Court of the District of Columbia; (Hon. Michael Lee Rankin, Trial Judge)

Before Rogers, Chief Judge, and Ferren, Associate Judge, and Pryor, Senior Judge.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: On February 7, 1989, the District of Columbia government filed a neglect petition against appellant alleging, pursuant to D.C. Code 16-2301 (9)(A), (B) (1989 Repl.), that her two children were abused and neglected. At the Conclusion of a bench trial, the Judge found that the children were neglected and abused, and placed them temporarily in the care of their maternal grandmother. At a subsequent Disposition hearing, the Judge granted custody of the children to their father. The mother contends on appeal that (1) D.C. Code 16-2301 (9) (A) is unconstitutionally vague on its face, and that (2) the trial Judge violated his duty of impartiality by engaging in ex parte contacts during the trial and exhibiting extreme bias and hostility against her during the trial, thereby denying her a fair trial. Finding the facial attack on the statute unpersuasive, but finding an appearance of partiality that is not harmless under the circumstances, we conclude that a new trial is required before a new Judge; accordingly, we reverse and remand the case to the trial court.

I

J.A., a boy of ten at the time of trial, and his sister L.A., who was then eleven, lived in a household comprised of their divorced mother and three women. Apart from a joint business venture in which the women were engaged, there was testimony that the women held common religious beliefs and lived a communal lifestyle that included joint supervision of J.A. and L.A.

On February 6, 1989, the day of J.A.'s birthday, the assistant principal of his school testified that he saw a fresh loop-shaped mark near J.A.'s eye and old scars on his back. J.A. told him that he had been beaten that morning for bringing home a bad report card, and that he had been beaten on previous occasions by the women who lived at his home. J.A. also expressed fear of returning home.

A police officer from the Youth Division, who was called to investigate, observed the scars on J.A.'s arm, back and legs. J.A. told the officer that he was beaten by all three of his mother's housemates, on numerous occasions, with extension cords and belt buckles, after being forced to strip to his underwear. The officer testified that J.A. was crying and very upset when she spoke with him and he was afraid to return to his home. The officer also testified that, in her experience, a beating with an extension cord causes a loop-shaped mark.

Both children testified. J.A. told the trial Judge that he was beaten by all the women, except his mother, and that he had been beaten often. He said that he screamed and cried during and after he was beaten. He stated he was beaten for getting a bad report card and that he had trouble with his schoolwork. He told the Judge that his mother had to sneak in to help him with his work so the other women would not find out or they would be angry with her.

L.A. testified that she too was beaten with belt buckles and extension cords and forced to take off her skirt or shirt. She said that her brother was whipped more often, usually for having a bad report card, and that she could hear him screaming and crying from the second floor while she was in the basement. Both children testified that they did not want to live with their mother and her housemates.

The mother and one of her housemates testified that the group worked together to raise the children, and that they shared the same strict philosophy towards discipline. Delphine Jones stated that she spanked J.A. with a belt or an extension cord, and that she did so on his birthday because of a bad report card. She denied hitting him on his face. The mother explained that she believed strict discipline was necessary to raise children, and that she had approved of the beatings they received, even condoning the use of an extension cord, thinking it would not really harm them.

At the Conclusion of the trial, the Judge found that the children had been subjected to continuing physical abuse which the mother had failed to prevent. The Judge also found that the mother's failure to protect her children severely affected the children's emotional wellbeing. The Judge concluded that they were neglected within the meaning of the statute and placed them in the temporary care of their maternal grandmother.

Two Disposition hearings were held after the trial. The first, on October 16, 1989, was to review the children's progress and situation. The Judge concluded that the children should remain with their grandmother until the next review in six months. The second hearing was conducted on April 16, 1990. At that time the children's father had filed a Motion for Review of Placement and to transfer custody to himself. The mother filed an opposition to the motion. At the end of the hearing, the Judge ordered that the children should be placed with their father.

II

The mother contends that D.C. Code § 16-2301 (23), defining abuse of a child, is facially vague and therefore unconstitutional. *fn1 She maintains that the definition fails to establish any criteria by which to determine what type of spanking of a child constitutes excessive corporal punishment. We disagree.

The Supreme Court has made clear that vague statutes offend three separate due process principles. First, "vague laws may trap the innocent by not providing fair warning" of prohibited conduct. Second, by failing to proscribe clear standards for those charged with enforcement, vague laws make possible arbitrary and capricious enforcement policies. Third, in the First Amendment context, vague laws may chill a much broader range of conduct than is otherwise permissible. See Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L. Ed. 2d 22, 92 S. Ct. 2294 (1972). Appellant focuses her argument on ...


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