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In re L.H.

June 7, 2007; as amended June 22, 2007

IN RE L.H. & A.H.,

Appeals from the Superior Court of the District of Columbia (NEG 180-05 & 185-05) (Hon. Odessa F. Vincent, Trial Judge).

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

Argued May 8, 2007

Before WASHINGTON, Chief Judge, and FARRELL and GLICKMAN, Associate Judges.

K.H., the mother of two minor daughters, L.H. and A.H., appeals from twin adjudications of neglect by the trial court based on findings that L.H. had been physically abused within the meaning of D.C. Code § 16-2301 (9)(A)(i) (Supp. 2006), and was without proper parental care or control, id. § 16-2301 (9)(A)(ii); and that A.H. was in imminent danger of abuse within the meaning of § 16-2301 (9)(A)(v).

Appellant contests the sufficiency of the evidence to support the neglect findings. We agree and reverse. The evidence does not support a finding that L.H. suffered "physical injury," § 16-2301 (30), from the actions of her mother sufficient to establish "abuse" under the statute, see § 16-2301 (23)(A)(i), or that L.H. was without proper parental care or control; and it likewise does not support a finding that A.H. was in imminent danger of being abused.


Both children were removed from the custody of K.H. following a March 14, 2005, altercation when K.H. slapped her daughter, L.H., and threw her to the floor.*fn1 The District thereafter filed neglect petitions with respect to each child, primarily on the grounds stated above. The petitions were heard at a trial on December 20, 2005. At the time, the daughter L.H. was age sixteen, and the daughter A.H. was age fourteen.

At trial only two witnesses testified, an investigative social worker, Stan Golden, employed by the District's Child and Family Services Agency (CFSA), and appellant K.H. Golden's testimony, as reflected later in findings made by the trial judge, was partly as follows: On March 15, 2005, he went to the mother's home in response to a call by police reporting an altercation that had occurred there the day before. Interviewing the mother and L.H., he learned that K.H. had discovered a website set up by L.H. on the home computer, which (in the judge's words) "included multiple pictures of [L.H.] scantily clad. [She] was pictured in clothing that revealed her torso, including below the pubic hairline. The website also included information about the [child's] alternative sexual preference, information about oral sex, methods of sexual arousal, [her] home address, and places [she] frequented." Angered by the discovery and by L.H.'s indifferent response, K.H. slapped her daughter in the face and threw her to the floor. L.H. thereafter left the house and called the police, who responded and arrested K.H. temporarily. When Golden interviewed L.H. the next day, he saw "discoloration on a certain part of her forearm, indicating some type of surface trauma to the skin." Although the child was taken to the hospital as a precaution, no records showing treatment for the bruise or discoloration on the forearm were presented at the hearing, and no other evidence about its nature or extent was introduced.

Based on this evidence, the trial judge found that L.H. had been abused by her mother on March 14, 2005, when K.H. "struck [her] in the face, and threw her to the floor." The judge relied on § 16-2301 (23)(A)(i), which defines "abused" to include "infliction of physical . . . injury upon a child," in concluding that K.H. had "injure[ed]" her daughter and thus abused her. On the record before us, that finding cannot stand.

This court "will reverse a finding of neglect only if it is 'plainly wrong or without evidence to support it.'" In re Am.V., 833 A.2d 493, 497 (D.C. 2003). To be sustained, however, a finding of neglect must embody a correct understanding of the relevant statutory terms. Here, the legislature has not left the concept of "physical injury" undefined. Rather, the statute defines physical injury which may support a finding of abuse, and in turn neglect under § 16-2301 (9)(A)(i), as "bodily harm greater than transient pain or minor temporary marks." Section 16-2301 (30). No evidence was presented that as a result of being slapped and thrown to the floor, L.H. suffered more than transient pain or minor temporary marks on her forearm.*fn2 The child did not testify at the hearing. Stan Golden, who interviewed her the day after the incident, saw "trauma," but when asked what this was, said that the child had "discoloration" on her forearm "indicating some type of surface trauma to the skin." The trial judge, in her written order, described this as "irritation and discoloration"; the District, in its brief, is content to call it "irritation." No evidence suggested that it went beyond minor temporary marks, and the legislature has expressly required injury greater than that before a parent exercising discipline may be found to have abused her child by a single act of corporal punishment.

The District points out that "throwing [a] child" is among the acts that the statute expressly removes from the reach of legitimate parental "discipline." Yet the legislature was careful to state that a parent must have "inflict[ed] injury to a child" by "throwing [her]" before an act of this kind may be deemed abuse, § 16-2301 (23)(B)(i)(III) (emphasis added); and by defining physical injury as it does, the statute makes clear that not every such act (including even "striking a child with a closed fist") is "per se physical abuse" (Br. for District at 15). Thus, the first basis for the judge's neglect finding as to L.H. may not stand.


We are not done with considering the throwing incident, however, because the trial judge believed it to be part of a wider pattern of circumstances requiring an alternative finding that L.H. was neglected because she was "without proper parental care or control." Section 16-2301 (9)(A)(ii). Specifically, the judge found the throwing incident to be part of the mother's "history of excessive reactions to stressful situations." The judge pointed to the fact that in 1998, while involved in an abusive relationship with the father of her then youngest child, K.H. had contemplated suicide and killing her children.*fn3 The judge further noted that, while undergoing brief hospitalization and mental health treatment in 1998 for depression and related illness - treatment she apparently had sought voluntarily - the mother confessed that "she was essentially overwhelmed with the prospect of parenting when one of her children began to misbehave." The judge perceived a link between these 1998 events and the March 2004 throwing incident: "One of the factors that caused [K.H.] to seek mental health treatment in 1998, i.e. her inability to control one or more of her children, has reoccurred in this most recent event involving [L.H.]." In other words, the judge saw the throwing as symptomatic of a condition - essentially a mental health condition - that disabled the mother from reacting reasonably, i.e., not "excessively," to "misbehav[ior]" that could be expected from normal teenage children. This condition effectively rendered L.H. without proper parental care or control.

Even mindful of our limited scope of review, however, and of a trial judge's prerogative to draw reasonable inferences from the record, there are serious flaws in this analysis. First, as indicated, the mother's precarious mental health in the late 1990's, and the risks it posed to her children at that time, influenced the judge's finding that K.H. could not be trusted to react reasonably to "stressful situations" (such as L.H.'s website misbehavior) at the present time and in the future. In effect, the judge found ongoing mental instability on K.H.'s part - the risk of her becoming "overwhelmed" by circumstances and overreacting, as in the throwing incident - that left the children without proper parental control. Yet the judge heard no psychiatric or other medical testimony relating the mother's past medical condition to her conduct in 2004 and her present capacity to parent. The District, it must be noted, did not allege that the children were neglected because K.H. was "unable to discharge . . . her responsibilities to and for the child[ren] because of . . . mental incapacity." Section 16-2301 (9)(A)(iii). And there was documentary evidence that K.H. had been treated with medication and psychotherapy since the 1998-99 episodes, without further need for hospitalization. The judge nevertheless extrapolated from the earlier treatment for mental illness to an explanation for her behavior in punishing L.H. and a conclusion generally that she would react ...

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