Appeals from the Superior Court of the District of Columbia (N398-00 and N397-00) (Hon. Kaye K. Christian, Trial Judge).
The opinion of the court was delivered by: Schwelb, Associate Judge
Before SCHWELB, REID, and GLICKMAN, Associate Judges.
Dissenting opinion by Associate Judge REID, at page 22.
On June 28, 2001, following an evidentiary hearing, the trial judge found that respondents Ty.B. (a boy) and Ti.B. (a girl), twins, who were born on October 13, 1993, were neglected children within the meaning of D.C. Code § 16-2301 (9)(B) (2001), because they were without parental care or control necessary for their mental health. The finding of neglect was premised on an alleged history of domestic violence said to have been inflicted by the children's father, T.B., on their mother, Y.B., who had been the father's paramour (according to the District) or common law wife (according to counsel for the father) until her disappearance on August 1, 1999. At the time of the evidentiary hearing, the mother's whereabouts were unknown, and she is presumed by the parties to be deceased.
On September 17, 2001, the judge ordered that the respondents remain in the custody of J.D.H.-P., one of their maternal aunts, with whom they had been residing since the mother's disappearance.
The father has appealed, contending primarily that the trial judge's findings were largely based on hearsay statements which the judge erroneously received in evidence, over objection, as admissions of a party opponent. We conclude that much of this testimony was inadmissible, that the father adequately preserved his objection to its admission, and that the error was not harmless. Accordingly, we reverse the adjudication of neglect and the award of custody and remand the case to the trial court for further proceedings consistent with this opinion.
I. THE TRIAL COURT PROCEEDINGS
At the evidentiary hearing, the District's evidence consisted primarily of the testimony of four maternal aunts of the twins: J.D.H.-P., N.H., S.G., and A.F., and the expert testimony of a clinical psychologist, "Dr. X."*fn1 These witnesses testified, and it is undisputed, that prior to their mother's disappearance, the twins had been living with both of their parents, who by all accounts, had a stormy relationship with one another. The District's theory of the case was that the father had physically abused the mother, that he was the prime suspect in the mother's disappearance and possible death,*fn2 and that the twins should not be placed with their father because, according to Dr. X, they were suffering from Post Traumatic Stress Disorder (PTSD) as a result of their exposure to family violence in the home. The District adduced no evidence, however, that the father physically abused the children, and the claim of neglect was not based on any such allegation.
The District's witnesses testified that after a family function that began on the evening of July 31, 1999, and continued into the early hours of the following morning, the family lost contact with the mother. On August 4, 1999, S.G., one of the children's maternal aunts, received a telephone call during which she was asked to meet her family at the police station. When she arrived, the father and the twins were already there. The police asked S.G. to take care of the children while the father was being interrogated. The twins were then brought to the home of another maternal aunt, J.D.H.-P.
On March 16, 2000, the District instituted neglect proceedings. On the same date, the court ordered that the respondents remain in the custody of J.D.H.-P. The twins have apparently resided with J.D.H.-P. since that time.
At the evidentiary hearing, the four maternal aunts testified regarding statements made to each of them by the mother concerning violence allegedly inflicted upon her by the father. Although the aunts personally observed some evidence of physical abuse between the mother and the father, see Part I.C, infra, -- the aunts did not themselves witness the alleged acts of violence by the father. On the contrary, the aunts' testimony consisted primarily (though not exclusively) of assertions that the mother had made to each aunt about the mother's relationship with the father. The trial judge admitted this evidence over the father's hearsay objection. In a written order in limine, the judge ruled "that the relevant witness may testify to statements made to her by respondents' mother." In the judge's view, further explicated in Part II.A, infra, the mother (though missing and possibly dead) was a party to the neglect proceedings, and her out-of-court statements were therefore admissible against the father "as an admission of [a] party opponent."*fn3 This decision, and the oral rulings that preceded it, set the rules of engagement for the entire proceeding.
As a result of the judge's ruling that statements by the mother to her sisters were "admissions of a party opponent," the proceedings consisted largely of the reception of testimony which, for reasons explained below, should have been excluded as inadmissible hearsay evidence. For example, J.D.H.-P., the District's first witness, testified that the mother reported to her, inter alia,
1. that during the summer of 1993, while (the mother) was pregnant with the twins, the father struck her with his fist in the stomach, causing her to be hospitalized;*fn4
2. that in an incident that occurred around 3:00 a.m. one morning in 1995, the mother reported to the witness that the father was abusive to her;*fn5 the mother subsequently told J.D.H.-P. that the bruises on her body were inflicted by the father;*fn6
3. that in June 1996, the father came to the mother's place of work and screamed profanities at her, allegedly in front of the children;
4. that in the spring of 1998, the father pulled hair (braids) out of the mother's scalp;*fn7
5. that in the summer of 1999, during a family outing, the father pushed the mother in front of the children;
6. that in 1999, the father was not fulfilling his child support obligations;
7. that the father would come home intoxicated after smoking "that stuff," and
8. that the father did not make the children wear seat belts, and that as a result, Ti.B. lost a tooth in a car accident while the father was driving.
J.D. H.-P. also testified that after the 1993 incident, she had numerous conversations with the mother in which the mother described abusive actions allegedly directed at her by the father.*fn8
The respondents' aunts also provided some testimony based on their own observations; we note some examples below. As we have previously indicated, J.D.H-P. saw bruises on the mother following reported fights with the father; S.G. and A.F. testified to the same effect. N.H. testified that in the summer of 1999, the mother ran into N.H.'s home with the twins, with the father in pursuit. The father yelled that "[i]f she keeps messing with me, I'm gonna hurt her." The father, who had apparently been ordered by the court to leave the house in which he had been living with the mother and the twins, also demanded that the mother withdraw requests that she had made for a civil protection order and for child support so that he could return to the home, adding that "[i]f I can't live in it, can't nobody live in it." N.H. also testified that she had seen damaged clothing belonging to the mother which, according to the mother, had been cut up by the father. S.G. told the court that in 1997, the father screamed profanities at the mother and at the mother's mother, and that he then threw a metal "club" at the mother's car, shattering the windshield. A.F. testified that she saw the father grab and violently pull the mother, in front of the children, during a family outing in 1999. N.H. and J.D.H.-P. both reported that the father drank malt liquor in front of the children.*fn9 No witness testified, however, that the father ever abused or mistreated either of the twins, other than to the extent that his alleged physical abuse of the mother may have constituted psychological abuse of the children.
Dr. X. testified in some detail regarding the effects upon children of domestic violence inflicted by one parent on the other. Dr. X. was of the opinion that when a child witnesses the physical abuse of a parent, this can be as detrimental to the child as being personally victimized by such violence. After examining the two respondents for a total of 31/2 hours, Dr. X. concluded that, although both children were friendly and intelligent, each of them was suffering from PTSD. According to Dr. X., there was a prevailing belief in the psychological community that children should not be placed in the sole custody of a known abuser. But cf. note 21, infra.
Dr. X. acknowledged that the twins had suffered traumatic losses as a result of the death, in April 1999, of their grandmother and of the disappearance, a few months later, of their mother. In Dr. X.'s view, however, grief from the loss of a loved one tends to produce depression or related disorders, rather than the anxiety demonstrated by the respondents.*fn10
The latter condition, according to Dr. X., resulted from the trauma incident to their having witnessed and heard abusive conduct by their parents.
In explaining how she had reached her conclusions, Dr. X. related some statements made to her by the twins during the interview. Ty.B. told Dr. X., for example, that his earliest memory was of waking up and hearing his parents "fussin," which made Ty.B. angry and sad. Ty.B. reported nightmares about the parents' arguments. According to Dr. X., Ti.B. related to her that she had seen her father strike her mother, that her mother was crying and afraid, and that her mother seemed powerless in this situation.
The District introduced into evidence, and the court admitted, five petitions by the mother and two petitions by the father seeking civil protection orders (CPOs). The District also established that in 1998, the father was convicted of domestic assault after entering a plea of guilty to that offense. As the District acknowledges, however, there was no proof that the twins were present during any of the altercations that led to the requests for civil protection orders. The District ...