Appeals from the Superior Court of the District of Columbia (N-274-99, N-275-99, N-276-99) (Hon. Zinora M. Mitchell-Rankin, Trial Judge)
Before Wagner, Chief Judge, and Terry and Ruiz, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
These consolidated appeals are taken from an order of the Superior Court declaring that Ca.S., Ch.S., and K.S. are neglected children. Appellant L.D. is the father of all three ch ildren; their mother is deceased. The court ruled that the children were neglected within the meaning of D.C. Code § 16-2301 (9)(A) and (B) (2001) because their father had inflicted mental injury on them when he beat their mother. The court also ruled that the children were neglected within the meaning of D.C. Code § 16-2301 (9)(C) because L.D., their only surviving parent, was incarcerated. We hold that there was insufficient evidence to permit the court to find that the children were neglected under D.C. Code § 16-2301 (9)(A) and (B), but that there was sufficient evidence to sustain a finding of neglect under D.C. Code § 16-2301 (9)(C). Accordingly, we affirm.
Ch., Ca., and K., whose current ages are 11, 12, and 15, respectively, lived with their mother, E.S., until her death on March 1, 1999. Their father, L.D., was in and out of jail, but spent time with them when he was not incarcerated. In 1994 L.D. was sentenced to six to eighteen years in prison for a drug offense. He was released on parole from Shaw Residence II, a halfway house, on October 9, 1998.
One month before L.D.'s release from the halfway house, E.S. sought a civil protection order (CPO) against him. In her CPO petition, E.S. alleged that L.D. had beaten her at her home on three different dates in late August and early September 1998 and that, on the most recent of those occasions, he had also raped and sodomized her. *fn2 I.M., the sister of E.S., saw E.S.'s physical appearance after some of these beatings, and after the third such incident, on Septem ber 8, she took E.S. to the police station and then to the hospital. In her testimony at the neglect hearing, I.M. described E.S.'s appearance on September 8, stating that "her lips were swollen . . . she had knots on her forehead, she had scratches behind her mark [sic] . . . her whole face was swollen." I.M. also said that the children had observed E.S.'s condition on September 8 and were disturbed by it. *fn3
L.D. signed a "Consent Civil Protection Order Without Admissions." The order required him to stay 100 feet away from E.S., but it also allowed him to have visitation rights with his children every other weekend following his release from the halfway house.
On March 1, 1999, E.S. was fatally stabbed. *fn4 Two days later the District of Columbia filed a petition alleging that the children were neglected within the meaning of D.C. Code § 16-2301 (9)(A), (B), and (C). The children were placed temporarily in the care of their maternal grandmother and aunt, and in due course a fact-finding hearing on the neglect petition was held on three days in March and April 2000.
The government's main witness at the hearing was "Dr. A.B.," *fn5 an expert in the field of clinical psychology. Dr. A.B. reviewed the case record and interviewed the children at the request of the Corporation Counsel. She spent at least four and a half hours with the children, during which time she interviewed them both as a group and individually. Dr. A.B. testified that all of the children described violence between their father and mother. *fn6 Dr. A.B. also stated that the children w ere afraid of their father and believed he was involved in the murder of their mother. *fn7 She explained the harmful effects of domestic violence on children, and concluded that her assessment of the children was that "they look like children that have been exposed to long-term trauma" and had signs of post-traumatic stress disorder due to violence between their parents.
The government also offered into evidence E.S.'s petition for a civil protection order, testimony from I.M. about E.S.'s physical condition at the time she filed the petition, and evidence that L.D. was currently in jail because his parole had been revoked for violating the earlier civil protection order. *fn8 There was also testimony from Dr. Charles Missar, a psychologist, and Leandre Cooke, a clinical social worker, but no transcript of the testimony of these witnesses has been included in the record by either party.
L.D.'s only witness was L.A.D., his sister. L.A.D. testified that she saw E.S. with a black eye on one occasion and that the children told her that "Mike," a friend of E.S., was the person who caused the black eye. L.A.D. also said that the children enjoyed spending time with their father and had never complained to her about him. The trial court, however, did not credit L.A.D .'s testimony because she could not remember the children's birthdays or addresses.
The court found that the children had "witnessed a pattern of abuse of their mother -- their caretaker -- by their father." Relying on this finding, the court ruled that the children were neglected within the meaning of D.C. Code § 16-2301 (9)(A) and (B) because L.D. had intentionally inflicted mental injury on them. *fn9 The court also found that L.D. was incarcerated and, consequently, that the children were neglected within the meaning of D.C. Code § 16-2301 (9)(C). *fn10
L.D.'s principal contention is that there was insufficient evidence to enable the trial court to find that the children were neglected under either D.C. Code § 16-2301 (9)(A), (B), or (C). *fn11 In a neglect case, the government is required to prove its allegation of neglect by a preponderance of the evidence. D.C. Code § 16-2317 (b) and (c) (2001); see In re A.S., 643 A.2d 345, 347 (D.C. 1994). On appeal, this court views the evidence "in the light most favorable to the government, drawing no distinction between direct and circumstantial evidence." Id. (citations omitted). Furthermore, when any case is tried by a judge without a jury, "the judgment may not be set aside except for ...