Appeals from the Superior Court of the District of Columbia (N-962-01, N-963-01, N-964-01, N-965-01, N-1297-01) (Hon. Hiram E. Puig-Lugo, Trial Judge)
Before Terry, Schwelb, and Washington, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Appellants T.L. and M.L. are husband and wife. The respondents are Mrs. L.'s five children, three of whom were fathered by Mr. L.; the other two respondents are Mr. L.'s step-children. *fn1 Following an evidentiary hearing, the trial judge found that all five respondents have been neglected within the meaning of D.C. Code § 16-2301 (9)(B) (2001) (hereinafter (B)), which defines a neglected child, in pertinent part, as a child who is "without proper parental care and control . . . necessary for his or her p hysical, mental, or emotional health." The adjudication of neglect was based entirely on serious, disabling, and unexplained injuries suffered in Mr. and Mrs. L.'s care by Ch.H., a boy then six years old who is not the son of either appellant *fn2 or the sibling of any of the respondents, and who was spending the summer at the home of Mr. and M rs. L. Specifically, the trial judge found that the respondent children were "in imminent danger of abuse" because "their parents [sic] *fn3 subjected a child believed to be their sibling to cruelty, torture and chronic abuse." The judge ordered that the three younger respondents, who had previously been removed from Mr. and Mrs. L.'s home, be committed to the custody of the Department of Human Services (DHS), and that the two older children be placed with their father, K.P., Sr., under the protective su pervision of the court.
Both Mr. and Mrs. L. have appealed to this court from the adjudication of neglect. *fn4 They point to the lack of any evidence (or finding) that any of the five respondents had been without proper parental care within the meaning of (B). They argue that D.C. Code § 16-2301 (9)(E) (2001) (old (E)), which was in effect at the time of the evidentiary hearing, included in the definition of a neglected child one who "is in imminent danger of being abused . . . and whose sibling has been abused," that the case was initially brought pursuant to this provision, and that Ch.H., the child who was found to have been abused, is not respondents' sibling. Appellants claim that old (E) therefore does not apply, and that the District has attempted to use (B) as a proxy for, and to fill lacunae in, old (E).
For the reasons stated below, we are in substantial agreement with the appellants' contention that the D istrict did not prove a violation of (B). We must therefore vacate the trial court's o rder. Much time has passed since the trial judge's decision, however, and we do not know the present circumstances of the respondents or of Mr. and Mrs. L. Moreover, in 2003 the definition of a neglected child in old (E) was expanded to cover a situation such as the one presented here. The statute, as amended, now defines a neglected child as including, inter alia, one "who is in imminent danger of being abused and another child living in the same household or under the care of the same parent, guardian or custodian has been abused." See D.C. Code § 16-2301 (9)(A)(v) (Supp. 2003) (emphasis added), to which, for convenience of comparison with "old (E)," we shall refer to as "new (E)." Any future order affecting the disposition of the respondents must be consistent with new (E). We also note that, under new (E) as under old (E), the abuse of one child in a household does not automatically mean that other children in the household are in "imminent danger" of abuse.
Accordingly, we remand the case to the trial court for further proceedings consistent with this opinion, and we direct that the court take into consideration all relevant factual and legal developments since its orders were entered.
A. The mistreatment of Ch.H.
By the time his plight was brought to the attention of the police on August 22, 2001, Ch.H. had suffered, at the hands of adults, mistreatment which can fairly be characterized as horrifying. Prior to May of that year, Ch.H. had been living with his mother, Ms. T.H., his mother's boyfriend, and his siblings. Ch.H. was a bed wetter, a condition that apparently irritated adults who were in charge of him. The mother subsequently stipulated that she had neglected Ch.H. and her other children by failing to protect them from her boyfriend. Although the mother testified that the boyfriend had merely slapped Ch.H. with his hand, the uncontradicted medical evidence showed that Ch.H. had numerous scars on his back which were probably attributable to cigarette burns. The date when these burns w ere inflicted is uncertain, but the scars were old enough to suggest that these injuries may have occurred when Ch.H. was still in his mother's care, and the District so alleged in a neglect petition directed against the mother.
In May 2001, Ch.H. went to stay with Mr. and Mrs. L. for the summer. At that time, he, his mother, and Mr. L. all apparently believed that Mr. L. was Ch.H.'s father. In fact, Ch.H.'s mother testified that Ch.H. was looking forward to visiting his "daddy." Unfortunately, the boy's experiences at the home of Mr. and Mrs. L. did not bear out his optimistic expectations.
On August 22, 2001, Mr. and Mrs. L. brought Ch.H. to Greater Southeast Hospital. Mr. L. identified him self as Ch.H.'s father. The boy was unconscious, and he had many straight and looped welts, bruises, and lacerations on his legs, buttocks, arms, chest, ribs, waist, back, and on the soles of his feet. He had a wide open gash on his forehead, and another injury that had formed a scab on top of his head. Police detectives were informed of the situation. The explanation of Ch.H.'s condition provided to the detectives by Mr. and Mrs. L. - that Ch.H. had fallen off Mrs. L.'s back during a game of "horsey," that he had struck his head in another fall, and that he had been bitten by the fam ily's young female pit bull - seemed to the officers to be incredible and insufficient to explain the boy's numerous injuries. One of the officers perceived the injuries to be so severe that he did not believe that Ch.H. would survive. Mr. and Mrs. L. admitted that they had not previously sought medical care for Ch.H. for the dog bite (because the dog had received all of her shots) or for any of his other injuries.
In light of the seriousness of Ch.H.'s condition, the boy was transported to Children's Hospital Medical Center, where he was placed in intensive care. Upon his arrival, he was comatose and appeared to be un dernourished. Hospital personnel had to provide Ch.H. with a ventilator to assist him in breathing.
At Children's Hospital, Ch.H. was examined and treated by Allison McCarley, M.D., a board-certified pediatrician. Dr. McCarley testified as an expert witness at the evidentiary hearing. She counted a total of forty-three straight and looped lacerations over Ch.H.'s body, all consistent with the boy's having been beaten intentionally with an electrical cord or belt. These injuries, according to Dr. McCarley, were not of the kind that could occur accidentally, and although the evidence on this point might be clearer, she indicated (and the trial judge found) that most or all of these injuries were recent and were probably incurred during the period that Ch.H. was staying with Mr. and Mrs. L.
In addition to the beatings and whippings that left the lacerations, Ch.H. suffered serious internal injuries. A CAT scan revealed that Ch.H. had sustained acute, fresh bleeding on the top of his brain; Dr. McCarley testified that this injury was less than a week old. The boy had also suffered retinal hemorrhages (or bleeding) in both of his eyes. These injuries, according to Dr. McCarley, were caused by severe shaking and trauma, and they could not have occurred accidentally or from playing "horsey." Dr. McCarley acknowledged that some of Ch.H.'s injuries were consistent with a fall.
Ch.H. remained on a ventilator for fourteen days, and in intensive care for three weeks. He was then moved to the Hospital for Sick Children, where he was apparently still a patient at the time of the evidentiary hearing. As a result of the bleeding of his brain, Ch.H. has suffered visual impairment and cognitive delay. His mother testified that when she last visited Ch.H. at the Hospital for Sick Children in February 2002 (more than two months before the hearing), he was in a wheelchair, apparently unable to walk or even to talk normally. Before his stay with the L. family, according to the mother, Ch.H. was "really motivated." He attended school, and he liked to watch cartoons and to play with his toy cars.
B. The proceedings in the trial court.
On the day that Ch.H. was taken to Greater Southeast Hospital, officers went to Mr. and Mrs. L.'s home and removed the couple's four-year-old daughter, Te.L., and their two-year-old son, To.L. *fn5 The children were examined, but no evidence of physical abuse was discovered. Both children, and especially the boy, were unruly and somewhat aggressive. James M. Evans, Jr., a clinical social worker who was qualified as an expert witness, diagnosed the children as suffering from "adjustment disorder." He testified that the children's behavior was consistent with that of abused children, but that it could also have been the result of their separation from their parents.
Ty.L., the youngest child of Mr. and Mrs. L., was born on September 28, 2001, more than a month after Ch.H. was hospitalized. Ty.L. was removed from the home on November 1. The youngster was found to be dirty, he suffered from diaper rash, and he had some wax in his ear. The social worker in charge of his case, Amy Robinson, acknowledged, however, that Ty.L. was taken from his parents because he was thought to be a sibling of Ch.H., ...