Appeals from the Superior Court of the District of Columbia (N-318-99, N-319-99) (Hon. Kaye K. Christian, Trial Judge)
Before Reid, Ruiz and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Concurring and dissenting opinion by Associate Judge REID.
The government filed neglect petitions for seven-year-old Jas.J. and her five-year-old brother Jam.J. on March 17, 1999. The petitions alleged that their mother B.A. and her boyfriend K.C. had physically abused Jas.J. on March 10, 1999 by administering excessive corporal punishment in the form of spankings, and that Jam.J. was in imminent danger of similar abuse. See D.C. Code § 16-2301 (9)(A) & (E) (2001). After a fact finding hearing, the trial court found that K.C. had subjected both children to a pattern of physical abuse from which B.A. had failed to protect them. As a result, the court found that both Jas.J. and Jam.J. were neglected under D.C. Code § 16-2301 (9).
On appeal from the trial court's findings of neglect, B.A. and K.C. make three claims. First, B.A. disputes the sufficiency of the evidence of neglect. Second, B.A. argues that the trial court abused its discretion when, out of concern for the children's welfare, it refused to let her cross-examine Jas.J. and Jam.J. after their hearsay statements were introduced as the primary evidence against her. Third, K.C. argues that the trial court erred in not allowing him to present expert testimony because he had not disclosed the expert to the government and the guardian ad litem before trial.
We reject B.A.'s first claim. The evidence heard by the trial court was sufficient to support its conclusion that the children were neglected. We agree, however, that B.A. and K.C. are entitled to relief on their other claims. In the absence of factual findings with support in the record that the probable harm to the children from having to testify substantially outweighed B.A.'s need for their testimony, the trial court should not have prevented B.A. from calling the children as witnesses. In addition, because K.C. had no duty to disclose his expert witness before trial in the absence of a discovery request or a pretrial order requiring such disclosure, the trial court should not have precluded him from calling that witness to testify. In view of these determinations, we vacate the findings of neglect and remand for further proceedings.*fn1
At trial, the government relied on the testimony of Detective Cheryl Wright-Taylor of the Metropolitan Police Department and Dr. Craig DeWolfe and Dr. Munisha Mehra of the Children's National Medical Center. The guardian ad litem for Jas.J. and Jam.J. called Dr. Rosa Herring of the Children's National Medical Center. Except for Dr. Mehra, each of these witnesses testified to statements that the children had made to them regarding their mistreatment by K.C. and B.A. These out-of-court statements were central to the government's case because the children were not called to testify and there were no other witnesses to their alleged abuse. B.A. and K.C. each testified and denied the allegations of abuse and neglect. B.A.'s mother and two witnesses from the children's school testified in support of B.A. However, the children's father W.J., whom B.A. called as a hostile witness, gave further testimony that the children had described abusive treatment from K.C. and B.A.*fn2
Detective Wright-Taylor testified that on March 15, 1999 she received and investigated a report that Jas.J. had suffered physical abuse. Detective Wright-Taylor observed discoloration and bruising on Jas.J.'s buttocks, which Jas.J. said were still sore.*fn3 The detective asked Jas.J. how she got the bruises, and the child told the detective that K.C. had spanked her on her bare buttocks in a public park. Detective Wright-Taylor then spoke to Jam.J., who confirmed his sister's account of the spanking. No objection was made to the admission of this testimony about Jam.J.'s or Jas.J.'s hearsay statements.
Dr. DeWolfe, a pediatric resident at Children's National Medical Center, testified that he talked with Jas.J. about the spanking while taking a medical history from her on March 16, 1999. According to Dr. DeWolfe, Jas.J. told him that K.C. had spanked her in a park and then B.A. had spanked her at home with a belt. Dr. DeWolfe reported that Jas.J. also told him that K.C. and B.A. had each spanked her the day before the spanking in the park. K.C.'s counsel objected to the admission of Jas.J.'s statements as hearsay. The court overruled the objection on the ground that Jas.J.'s statements were made for the purpose of medical diagnosis.*fn4
Dr. Mehra, a pediatrician, testified that she examined Jas.J. after Dr. DeWolfe saw her. Dr. Mehra found bruises on Jas.J.'s buttocks that were tender to the touch and that were consistent with the spanking Jas.J. had described.
Dr. Herring, a therapist and social worker who had treated Jas.J. and Jam.J., testified as a treating physician and an expert in child psychotherapy. Over objection, Dr. Herring recounted statements that Jas.J. and Jam.J. had made to her in several therapy sessions. Dr. Herring testified that Jas.J. said that K.C. and B.A. each beat her on March 10, 1999 after they learned that she had misbehaved at school that day. Jas.J. said K.C. took her to the park after school, pulled down her underpants and spanked her. Jas.J. told her mother about this spanking, and B.A. allegedly said "good. I'm going to spank you again." Dr. Herring testified that Jam.J. told her about other abusive incidents. In one therapy session, Jam.J. said that after he had accidentally urinated on the wall, K.C. had made him lick up the urine. On another occasion Jam.J. told Dr. Herring that K.C. had "touched his butt"; however, Jam.J. later retracted that statement. Dr. Herring believed that Jam.J.'s retraction did not affect his credibility. She testified that, in her opinion, the details and consistency of the children's statements to her suggested truthfulness. Dr. Herring diagnosed both Jas.J. and Jam.J. as having adjustment disorders and opined that they were "traumatized" by the physical abuse they reported from B.A. and K.C.
K.C. denied spanking Jas.J. on March 10 and testified that he had never physically disciplined either child. B.A. echoed that testimony. B.A. testified that she herself did spank her children occasionally but she insisted that she did not spank Jas.J. on March 10, 1999. B.A. had no explanation for the bruises found on Jas.J. on March 15 and 16, 1999.
B.A.'s mother J.A. testified that she had never seen B.A. or K.C. physically discipline the children and that Jas.J. "tells lies." Patricia Macantoosh-Lucas, an assistant teacher in Jas.J.'s classroom, testified that Jas.J. had never told her that she had been beaten by B.A. or K.C. Ms. Macantoosh-Lucas also testified that she had observed that Jas.J. and Jam.J. had a "loving" relationship with K.C. and would always run to him when he picked them up from school. Kathleen Pardue, the school principal, similarly testified that she had not observed any signs of abuse and that the children had a good relationship with K.C.
Although W.J., the natural father of Jas.J. and Jam.J., was called to the stand by B.A., his testimony corroborated the allegations of the neglect petitions. W.J. testified that he had seen the bruises on Jas.J.'s buttocks after March 10, 1999, and that Jas.J. had told him that K.C. had beaten her in a park. W.J. personally had never seen K.C. mistreat either of his children, but, he testified, Jas.J. had told him that K.C. beat them regularly and Jam.J. had told him that K.C. made him lick up urine. The children's hearsay statements recounted by W.J. were admitted without objection.
On the second day of trial, B.A.'s counsel requested permission to interview Jas.J. informally to determine "whether she can recall correctly what happened" on March 10, 1999. The guardian ad litem opposed this request, stating that Jas.J. was "reluctant to talk" about the allegations of abuse, in part because B.A. "has told both children that . . . [B.A.] will go to jail if they talk about this." The court deferred to the guardian ad litem and declined to grant B.A.'s request. B.A.'s counsel then requested permission to call Jas.J. as a witness. The court responded negatively:
No. Absolutely not. If the Guardian Ad Litem has indicated that the child will not speak informally, the Court does not require or force children to testify in proceedings of this nature. This is a civil case. This is not a criminal case. This case is aimed towards the best interests of the children.
K.C.'s counsel then requested permission to call both children as witnesses, arguing that because the government was introducing their hearsay statements he should be allowed "to cross-examine the children as to what they say [K.C.] did." The guardian ad litem opposed the request. The guardian ad litem argued that Jas.J. and Jam.J. already had given consistent accounts of the March 10, 1999 incident to several different people, and claimed that "[t]hey don't want to talk about it." She further argued that if the children were called to testify, they would suffer "an emotional impact" from "telling the story" and from "speaking in front of their parents." B.A.'s counsel suggested that the court could mitigate any such impact by arranging the testimony so that the children could not see their parents or K.C. The court rejected that suggestion without comment and, relying exclusively on the guardian ad litem's representations, again ruled that the children were not to be examined:
With the GAL's opposition and [because] the GAL is the legal representative of these children, the Court is not going to require them to testify. . . . [T]he Court is not going to force them in opposition of their legal representative and fiduciary who is supposed to do what is in their best interests.
Later in the trial, after the guardian ad litem presented Dr. Herring, B.A. and K.C. sought to present their own expert witness testimony. B.A.'s counsel advised the court that she intended to call Dr. Lanning Moldauer, a psychologist, to rebut Dr. Herring's testimony. The government objected on the ground that B.A. had not given notice before trial of her intent to call an expert, either informally or by filing a statement identifying Dr. Moldauer pursuant to Superior Court Civil Rule 26 (b)(4)(A)(i). The government did not claim that it had requested pretrial identification of B.A.'s expert witnesses. K.C.'s counsel then stated that he too planned to rebut Dr. Herring by calling an expert, in his case a psychiatrist named Dr. Willie Hamlin who reported in a November 4, 1998 letter that he had found no evidence of abuse when he examined Jas.J. and Jam.J. in connection with B.A.'s divorce proceeding. K.C.'s counsel claimed that he had not known of Dr. Hamlin's existence until the day of the hearing, when B.A.'s counsel gave him a copy of the November 4, 1998 letter. Both the government and the guardian ad litem objected to K.C.'s request to call Dr. Hamlin.
The trial court directed K.C. and B.A. to submit written motions in support of their requests for leave to call their experts. In their motions B.A. and K.C. each pointed out that no party to the neglect proceeding had sought to discover their expert witnesses before trial, either through formal interrogatories or otherwise. That representation was never challenged.
Thereafter, the trial court denied B.A and K.C.'s motions in a written order. Without commenting on their argument that they had never been asked whether they intended to call expert witnesses, the court analyzed their right to call experts under the multi-factor test of Weiner v. Kneller, 557 A.2d 1306 (D.C. 1989).*fn5 The court found that the government and guardian ad litem would suffer incurable prejudice if B.A. and K.C. were allowed to call expert witnesses whom they had not disclosed before trial. The court further found that B.A. and K.C. had not shown that they would be incurably prejudiced by the preclusion of their experts' testimony. The court acknowledged that "[t]he testimony of Dr. Hamlin seems especially probative of the issue of abuse charged on the part of [K.C.] and could conceivably do a great deal to refute these allegations." Nevertheless, the court concluded that what it deemed K.C. and B.A.'s "willful disregard for the evidentiary rules" weighed in favor of denying their motions. The court assumed that B.A. and K.C. had failed to abide by Rule 26 (b)(4), but it did not explain how B.A. or K.C. had violated this or any other "evidentiary rule."
In an October 5, 2000 order, the trial court found that Jas.J. and Jam.J. were neglected children under D.C. Code § 16-2301 (9). The court explicitly credited the testimony of Dr. Herring, Dr. DeWolfe, Dr. Mehra, Detective Wright-Taylor and W.J., and implicitly credited the hearsay statements of Jas.J. and Jam.J. The court found B.A.'s testimony helpful "in understanding the family dynamics," but not credible as to the events of March 10, 1999. The court did not believe the testimony of K.C. or J.A.*fn6 The court found that K.C. had used excessive corporal punishment in spanking Jas.J. in a park on March 10, 1999, and that B.A. had followed up this beating by spanking Jas.J. with a belt. The March 10, 1999 spanking "was part of a pattern of abusive and violent behavior [by K.C.] towards [Jas.J.] and [Jam.J.]," as shown by the ...