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In re S.S.

April 17, 2003

IN RE S.S., E.D., APPELLANT.


Appeal from the Superior Court of the District of Columbia (N3-00) (Hon. Kaye K. Christian, Trial Judge)

Before Schwelb, Ruiz, and Washington, Associate Judges

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

Argued January 15, 2003

E.D., the mother of S.S., a girl born on December 5, 1996, appeals from an adjudication that S.S. is a neglected child within the meaning of D.C. Code §§ 16-2301 (9) and (23) (2001). *fn1 The trial judge held, in essence, that the mother, a non-custodial parent who had regular visits with her daughter every second weekend, failed to take reasonable steps to protect S.S. from alleged sexual abuse by two of her older brothers. On appeal, the mother claims that, as a non-custodial parent, she is not subject to the child neglect statute. She also asserts that the trial judge "abused [her] discretion [by] deciding the case against the weight of [the] evidence." We affirm the adjudication that S.S. was neglected by her mother within the meaning of § 16-2301 (23).

I.

THE EVIDENCE

On January 4, 2000, a child neglect proceeding was instituted by the District of Columbia against the mother on the basis of the allegations described above. An evidentiary hearing was held on March 22, 2000. The testimony at the hearing revealed that when S.S. was two months old, the mother effectively evicted the child and S.S.'s father from the family home and placed S.S., her bathtub and her clothes out on the street. *fn2 In accordance with the order of a Maryland court, S.S. was placed with her father in the home of her paternal great-aunt, a retired social worker. *fn3 S.S. has lived with the great-aunt ever since. *fn4 Although the relationship between the mother and the great-aunt has been less than cordial, the mother had unsupervised visitation with S.S. Indeed, until the events that gave rise to this proceeding, the mother took S.S. to her (the mother's) home every other weekend.

In the summer of 1999, when S.S. was just over two and one half years old, the great aunt noticed disturbing signs that S.S. may have been sexually abused. Specifically, according to the great-aunt, the little girl engaged in what appeared to be sexual play with her doll. The child also placed a toy dog in the area of her vagina, and she stuck a crayon up her rectum. S.S. told her great-aunt that her older brother, D.S., then aged nine or ten, had done the same thing to her. *fn5 S.S. also reported that D.S. had "tickled my pee pee."

The great-aunt explained that the expression "pee pee" was not used in her house, and that S.S. must have picked it up somewhere else. During the summer, S.S. also began to use the expletive "fuck." In August 1999, alarmed by these developments, the great-aunt decided to tell the mother what was going on. The two women had a conversation which both described as hostile and unsatisfactory. It appears that the mother disbelieved the great-aunt and said that the story was a lie. The great-aunt asked S.S. to tell her mother what she (S.S.) had told the great-aunt, but the child appeared afraid and said nothing. *fn6

Notwithstanding the unproductive discussion between the great-aunt and the mother, the mother's unsupervised visitation continued for several additional months. According to the great-aunt, there was a brief period after that conversation during which S.S.'s behavior improved and became less sexually oriented. As the year progressed, however, there was a gradual increase in S.S.'s talk about sexual topics, and the child began to use new toys to touch her vagina. The great-aunt testified that S.S. would "run up and bite you," "rub[] herself against your leg," engage in "some up and down movements that just seem[ed] to be sexually natured"; the great-aunt found S.S.'s behavior "very disconcerting." S.S. also told the great-aunt that another brother, K.S., was "playing with her pee pee." K.S. was about twelve years old; S.S. was not yet three.

Because of what she viewed as the mother's lack of interest following the initial disclosures in August, the great-aunt did not tell the mother of the subsequent developments. In December 1999, however, the great-aunt did report the suspected abuse to the police and, specifically, to Child Protective Services. The great-aunt also took S.S. to Children's Hospital. *fn7

Suzanne Levin, M.D., a board-certified pediatrician at Children's Hospital, was qualified without objection as an expert on pediatrics and child abuse. Dr. Levin testified that she examined S.S. on December 27, 1999, after the great-aunt brought her to the hospital for suspected sexual abuse. According to Dr. Levin, S.S. told her that K.S. "touched her pee pee"; the judge overruled the mother's hearsay objection, relying on an "[e]xception to the hearsay rule." *fn8 Dr. Levin testified that S.S. had a "normal" anal and vaginal examination, but stated that this was true in 80 to 85 percent of cases of suspected abuse. Dr. Levin acknowledged that she did not know whether the claimed abuse actually happened; she explained that she did no investigation and that investigation was not part of her job.

At the close of the District's case, the mother's counsel made an oral motion for "summary judgment, direct[ed] verdict," which the court denied. The mother's thirteen-year-old daughter then testified that she never saw either of her brothers harm S.S. when S.S. visited the mother's home. *fn9 The witness admitted, however, that S.S. did not "open up and talk to her . . . all the time."

The mother testified on her own behalf. Discussing her unsupervised visits with S.S., she stated that she bathed the little girl, changed her clothes, played with her, and took her out with the other children. According to the mother, S.S. was "always laughing and playing"; she was also "fun." The mother believed that the great-aunt's allegations about abuse by D.S. were untrue, and she confirmed that the great-aunt had never ...


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