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C.C.J. v. N.J.

July 26, 2001

IN RE: C.C.J. & B.K.J., APPELLEES
v.
N.J., APPELLANT



Before Schwelb, Farrell, and Ruiz, Associate Judges.

The opinion of the court was delivered by: Ruiz, Associate Judge

Appeals from the Superior Court of the District of Columbia (Hon. Robert S. Tignor, Trial Judge)

Argued June 1, 2001

Appellant, N.J., appeals from the trial court's finding that his two children were neglected under D.C. Code § 16-2301 (9)(A) (1997 & Supp. 2000) (a child "abandoned or abused" by parent). *fn1 Based on the testimony of the children's examining physician and the lack of parental explanation for observed injuries suggesting sexual abuse, the trial court ruled that the government proved neglect by a preponderance of the evidence. Appellant contends the evidence was insufficient for a finding of neglect. We affirm.

FACTUAL SUMMARY

On September 6, 1996, Ms. Streeta Yarborough, a third-grade teacher at Clark Elementary School, discovered that C.C.J. had written in the notebook of another student (a boy), "I suck my Daddy's dick last night. My father's real sexy. I'm truly gay with my father." Ms. Yarborough contacted B.J., the mother of C.C.J., and requested that she confer with the school counselor. The mother responded by sending a note apologizing for C.C.J.'s behavior. After additional efforts at contacting the mother failed, the school contacted the police.

On October 3, 1996, Detective Proctor contacted B.J. to request that the children, C.C.J. (age 9, at the time of trial), and B.K.J. (age 10, at the time of trial), be taken to the Children's Advocacy Center (CAC) for an interview. The children were taken to the CAC the following day, where Detective Proctor overheard C.C.J. say to B.K.J., that "mommy told us to watch what we say." Detective Proctor instructed the mother to take the children to a doctor for a physical examination to rule out the possibility of sexual abuse.

Detective Proctor subsequently contacted D.C. General Hospital to determine if the parents brought the children in for examinations, but discovered that they had not done so. The detective was unable to contact appellant or his wife during the following two months. *fn2 On December 9, 1996, C.C.J., was brought to D.C. General Hospital for an examination by Dr. Howard Wood, who, after a cursory examination, found no evidence of vaginal penetration, scrapes, or tears.

In April 1997, the government filed a petition alleging neglect by the parents and, following a finding of probable cause, the children were placed in the custody of their maternal grandmother. On May 23, 1997, the children were examined by Dr. Orr, an expert in pediatric medicine and sexual abuse of children.

Dr. Orr found abnormalities in the children's genitalia and opined that they were consistent with sexual abuse due to "chronic genital manipulation." *fn3 During the examination of C.C.J., Dr. Orr found that the appearance of "the hymen is consistent with some external disruption of the integrity of the hymen." With respect to B.K.J., Dr. Orr found her genital area "remarkably abnormal [in] that it is consistent with some external force or external trauma to interrupt the normal integrity of what the hymen should have looked like in a child her age." In both cases, Dr. Orr concluded that the injuries were inconsistent with bed-wetting, infection, bicycle riding, or self-infliction.

After five months of being in the care of the grandmother, Dr. Orr performed another examination of the girls. She found that the "rough, reddened look that was there in May was completely resolved." Dr. Orr concluded that the vaginal area was "healing or repairing itself."

The trial court found that the government had demonstrated by a preponderance of the evidence that the children were abused. The court held that "[t]he circumstances collectively support the conclusion that there are unexplained injuries in the nature of sexual abuse, given the youth of the children and the fact that they were in their parents' care. It is not unreasonable to expect the parents to be able to offer some plausible cause for the injury. The parents have not done so and the Court finds the children have been abused under D. C. Code § 16-2301 (9)(A)."

ANALYSIS

"In a child neglect proceeding, the District has the burden of proving by a preponderance of the evidence that a child is neglected within the meaning of D.C. Code § 16-2301." In re E.H., 718 A.2d 162, 168 (D.C. 1998). If a claim of evidentiary insufficiency is raised, the "judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it." Id. at 168. "[W]e must view the evidence in ...


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