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In re D.B.

May 1, 2008

IN RE D.B., M.W., APPELLANT.


Appeal from the Superior Court of the District of Columbia (N650-01) (Hon. Ann O'Regan Keary, Trial Judge).

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

Argued December 18, 2006

Before FISHER and THOMPSON, Associate Judges, and BELSON, Senior Judge.

This is an appeal from a judgment of the Superior Court prohibiting M.W. from visiting his daughter D.B. We affirm.*fn1

I. Factual Background

D.B. was born on October 26, 1996, and lived with her mother and four sisters until she was committed to the District of Columbia Child and Family Services Agency after her mother entered into a stipulation of neglect on August 9, 2001. Appellant, her father, had visited D.B. and her older sister C.B.*fn2 from time to time when they lived with their mother, and he saw them at weekly visits after they were placed in foster care.

On October 3, 2001, the Superior Court prohibited appellant from visiting D.B. and C.B. pending a criminal investigation into allegations of sexual abuse.Appellant repeatedly sought to reinstate his visitation rights, and in an order filed on November 25, 2002, the court scheduled an evidentiary hearing. That order explicitly notified the parties that hearsay would be admissible. The four-day hearing was held on December 12 and 20, 2002, and January 17 and 31, 2003, but appellant attended only the first day. On January 31, 2003, the court found clear and convincing evidence that appellant had sexually abused C.B. and D.B. Therefore, it continued to prohibit appellant from visiting his daughter D.B.

The court admitted a variety of evidence at the hearing. The girls' foster mother testified that both children told her that appellant touched them inappropriately, and C.B. also said that appellant engaged in various sexual acts with each of them. The foster mother said that D.B. was afraid of appellant. She also testified that both girls exhibited highly eroticized behavior, which she described in detail.

A doctor who examined the girls explained that highly eroticized behavior, like that described by the foster mother, can be a child's response to sexual abuse. The doctor also testified that C.B. had an abnormally "notched" hymen, a condition consistent only with sexual penetration. C.B. tested positive for chlamydia, a sexually transmitted disease.

Other evidence included interviews of D.B. and C.B. taped at the Children's Advocacy Center.*fn3 Appellant's counsel introduced the tape of the first set of interviews (of D.B. and C.B.) without objection from the government. The government introduced a second interview of C.B. without objection from appellant's counsel.Although appellant did not testify, he called a character witness to speak on his behalf.The government also introduced documentation that appellant had been convicted of sodomy in 1986.

II. Legal Analysis

An order denying a parent the right to visit his child may be appealed to this court, In re D.M., 771 A.2d 360, 364-66 (D.C. 2001), and we review for abuse of discretion. In re Ko. W., 774 A.2d 296, 303 (D.C. 2001). Judicial discretion must be founded on correct legal principles and a firm factual foundation. Id. However, "[t]he concept of 'exercise of discretion' is a review-restraining one." (James) Johnson v. United States, 398 A.2d 354, 362 (D.C. 1979). "The appellate court role in reviewing the exercise of discretion is supervisory in nature and deferential in attitude." Id. (internal quotation marks and citations omitted).

Appellant asserts that the trial court committed reversible error by admitting hearsay and violated his due process rights by relying on such evidence to make such an important decision. He contends as well that the court erred in considering his previous sodomy conviction. Finally, appellant argues that the record is insufficient to permit ...


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