March 5, 2009
IN RE K.S., J.S., APPELLANT.
Appeal from the Superior Court of the District of Columbia (NEG-253-04) (Hon. J. Michael Ryan, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Argued February 5, 2009
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and PRYOR, Senior Judge.
After a four-day bench trial in the summer and fall of 2004, the Superior Court made a finding that K.S., then fifteen years old, was a neglected child. J.S., the mother of K.S., appeals the neglect finding and also challenges other rulings rendered by the trial court during the course of the neglect proceedings. For the reasons that follow, we affirm.
On April 16, 2004, the District of Columbia filed a petition in the Superior Court alleging that J.S. had hit, beaten and threatened K.S. on multiple occasions and had performed vaginal examinations on the child. After a probable cause hearing held on the same day, the magistrate judge (the Honorable Juliet J. McKenna) determined that K.S. could not safely remain in the family home and ordered her placed in shelter care subject to supervised visits with J.S. One week later, over J.S.'s opposition, Judge McKenna ordered K.S. into the care of her maternal aunt, C.S., where she remained throughout the neglect proceedings.*fn1
On July 22, 2004, the District filed a written motion asking the court to permit K.S. to testify at the neglect hearing outside of J.S.'s physical presence, by closed circuit television, so that K.S. would not have to face her mother directly (but all trial participants would be able to observe K.S.'s demeanor and subject her to real-time questioning). Over J.S.'s objection, the trial judge, the Honorable J. Michael Ryan, granted the District's motion.
K.S.'s testimony at the neglect hearing focused on how her mother subjected her to "virginity tests" and physical punishment.*fn2 K.S. testified that, approximately four times during K.S.'s adolescent years, J.S. made K.S. undress, lie down on a bed, and spread her legs. On each occasion, J.S. conducted a visual inspection and touched K.S.'s vagina with her fingers, aiming to "check and see if . . . [K.S.] was open and having sex." K.S. testified that these examinations made her angry and depressed, and left her "want[ing] to commit suicide," but she did not tell her mother to stop because she was "scared of her."*fn3 On one occasion in January 2003, after discovering a romantic e-mail that K.S. had sent to a boy, J.S. took K.S. to the doctor "to see if I was a virgin," even though K.S. had maintained that she had never had sex. Thereafter, K.S. testified, J.S. told her that the laboratory tests from that visit indicated that K.S. had gonorrhea. Insisting that she knew K.S. had been having sex, J.S. proceeded to beat K.S. with a belt on K.S.'s (clothed) buttocks. The beating lasted for "like an hour and something because she kept taking pauses forever." All the while, J.S. kept demanding to know the name of K.S.'s sexual partner. Eventually, K.S. falsely confessed to having had sex, so that her mother would relent.
K.S. also described other occasions on which her mother hit her. During the spring of 2004, J.S. hit K.S. with an open hand for failing to fold her clothes properly. Another time, because K.S. had not organized certain photographs neatly, J.S. used a belt to hit K.S. on her left wrist, which had recently been broken, and the wrist "swelled up real bad."
Several of K.S.'s relatives were also called as witnesses by the District. C.S., J.S.'s mother, testified that J.S. frequently hit or threatened to hit K.S*fn4 and that J.S. was unduly "rough" with K.S. when the child was recovering from a broken leg. T.S., K.S.'s cousin, testified that J.S. used to "pop" and "beat" K.S. when K.S. was young, such as when J.S. "was telling [K.S.] to find some socks . . . and she wouldn't find them fast enough."*fn5 S.S., another cousin, testified that she heard J.S. threaten to beat or whip K.S., that K.S. was "petrified" of J.S., and that she (S.S.) had observed bruises on K.S.'s person on occasion.*fn6 To S.S., J.S. "seemed like she was just obsessed with protecting [K.S.] from having sex." A.S., a cousin with whom K.S. is especially close, testified about instances in which K.S. had complained of J.S. "always hitting on her with stuff" and of "how hard it was living with [J.S.]." K.S. had also told A.S. about J.S. examining K.S.'s private parts "just to see was [K.S.] having sex."*fn7 K.S. told A.S. that K.S. "felt like she wanted to kill herself." K.S. also told A.S. that J.S. "would always threaten to slap [K.S.] to the floor," that J.S. had threatened to murder K.S., and that on one occasion J.S. beat K.S. while praying aloud, "God, please don't let me murder her."
Licensed clinical psychologist Dr. C. David Missar testified as an expert for the District, on the basis of his interview of K.S. and his evaluation of her mental health and general emotional functioning.*fn8 Dr. Missar characterized the type of vaginal examinations that K.S. described -- examinations for the purported purpose of determining whether K.S. was sexually active*fn9 -- as "assaults" that can violate the child's "emotional sense of well-being" and that can have "tremendous negative emotional repercussions" for the child and lead the child to become "incredibly depressed or anxious." Dr. Missar opined that K.S. had suffered just such negative effects as a result of the vaginal examinations to which J.S. subjected her. He opined that K.S. suffered from Post-Traumatic Stress Disorder ("PTSD"), which was the result of those examinations and other physical abuse, including "excessive physical discipline" by J.S.
J.S. testified that K.S. had fabricated allegations of abuse in order to escape the strict rules of the household. J.S. explained that she did not permit K.S. to have boyfriends or to go out without adult supervision, and that she used non-physical discipline to enforce her rules. J.S. told the court that when K.S. began staying with her aunt in April 2004, K.S. told J.S. that she did not want to return home because she enjoyed the freedom her more lenient relatives afforded her. J.S. further testified that she had examined K.S.'s genital area only for health-related reasons. First, in December 2002, J.S. conducted a "visual check" of K.S.'s vagina when K.S. came home "crying and screaming . . . at the top of her lungs" and complaining of stomach pain and irritation in her genital area. J.S. wanted to determine whether K.S. was experiencing discharge, so that she could report such a symptom to the doctor, whom she had arranged for K.S. to see in January. After the doctor's appointment, J.S. received by mail the results of K.S.'s gynecological tests, which she understood to indicate that K.S. had both a yeast infection and gonorrhea.*fn10 J.S. obtained the prescribed medications and helped apply the medication to K.S's vagina. The following summer, J.S. again arranged for K.S. to see a gynecologist and, when K.S. again was diagnosed with a yeast infection, J.S. once more helped her to apply medication internally. J.S. acknowledged that she punished K.S. (for, J.S. presumed, the child's having engaged in sexual activity) after telling the child that her laboratory results were positive for gonorrhea, but J.S. denied using physical discipline.
Judge Ryan made oral findings at the end of trial on November 30, 2004, and later issued written findings in an order dated January 10, 2005. Judge Ryan explained that he believed K.S.'s testimony over that of J.S. "in light of the demeanor, candor and consistency of the child's testimony, juxtaposed with the unconvincing general denials of the mother." He found that J.S. (1) "performed several visual and digital examination of [K.S.'s] genitalia in an apparent effort to determine whether [K.S.] was engaging in sexual relations"; (2) "falsely reported to [K.S.] that [K.S.] had contracted Gonorrhea, and proceeded to beat [K.S.] on her buttocks for approximately one hour"; and (3) "hit [K.S.] with an open hand" for K.S.'s failure to perform household chores correctly; and that (4) "[t]hese . . . beatings, have been accompanied by threats from [J.S.] to kill [K.S.], including an instance while beating the child wherein [J.S.] prayed aloud that she would not kill [K.S.]." Judge Ryan concluded that J.S. was a neglected child within the meaning of D.C. Code §§ 16-2301(9)(A)(i) and (ii) (2001), "in that the vaginal penetrations and beatings of [K.S] over time constitute abuse by [J.S.]" and "in that the vaginal penetrations, beatings, and threats of harm demonstrate that [K.S.] lacked proper care and control from her mother as necessary for [K.S.'s] mental, emotional, and physical health."
J.S. challenges the ruling by which the trial court permitted K.S. to testify from outside the courtroom via closed-circuit television, rather than in J.S.'s presence.
In previous opinions, this court has not considered specifically whether a child's testimony in a neglect proceeding may be given via closed-circuit television. However, in In re Jam. J., 825 A.2d 902, 917 (D.C. 2003), we did set out several principles that guide our analysis here. The specific issue in Jam J., a neglect proceeding in which the trial court admitted children's hearsay reports of physical mistreatment, was whether the court erred in refusing to let appellants (the mother and her boyfriend) call the children as witnesses for cross-examination. See id. at 911. In analyzing that issue, we recognized that a parent's fundamental rights are at stake in a neglect proceeding, id. at 913, 914-15, and that the parents' due process rights were "impaired substantially by their inability to confront the children -- their accusers -- in court through live cross-examination." Id. at 911. We also recognized that the trial court's fact finding may be "less informed and reliable than it would [be] if the court had seen and heard the children itself," id. at 911; that a court should not "too quickly assume" in child welfare proceedings that testifying will be harmful to the child, id.; and that the trial court has no statutory obligation to consider the child's preference regarding whether and how to testify in a neglect case. Id. at 912. At the same time, we recognized that the overriding objective and "paramount consideration in neglect proceedings" is the best interest of the child, id. at 915 (citation omitted), and that the trial judge retains the discretion to impose limitations attendant to taking a child's testimony to protect the child. Id. at 912, 916. We concluded that the trial judge must balance the probative value of the child's testimony against the risk of harm to the child. Id. at 917. Due process permits the trial court to impose "reasonable conditions and restrictions on the conduct and scope of a child's examination," id. at 916, but before imposing such restrictions, the court must have a "firm" evidentiary foundation for finding that harm to the child would ensue from testimony without such restrictions. Id. at 915.
We concluded in Jam. J. that the trial judge must make "three case-specific factual determinations" to justify the extreme measure of excluding a child's testimony. Id. at 917. First, "the trial court must make a finding on the record," supported by "concrete evidence individualized to the particular child," that testifying "would create a risk of serious harm to the child." Id. at 917. We observed that expert testimony "will often be the best evidence" to support such a finding, but contemplated that such testimony "may not always be required." Id. at 917. Second, "the court must consider whether the risk [of harm to the child] can be alleviated by means short of prohibiting the testimony altogether," id., noting specifically that the trial judge might consider the alternative of "using closed circuit cameras to receive the child's testimony out of the physical presence of the parent accused of neglect." Id. Third, the court "must evaluate the probative value of the child's testimony and the parent's concomitant need for it." Id. at 918. Only if the potential damage to the child's best interests outweighs the parent's need for the child's testimony may the court exclude the testimony altogether. See id.
As we noted in Jam. J., id. at 917, the Supreme Court has held that in the criminal context, where the Sixth Amendment to the U.S. Constitution guarantees the accused the right to confront witnesses against her, a court may permit a child witness to testify via one-way closed circuit television if the court concludes that doing so is necessary to protect the child from emotional trauma.*fn11 See Maryland v. Craig, 497 U.S. 836, 855 (1990); see also Hicks-Bey v. United States, 649 A.2d 569, 575 (D.C. 1994) (holding that trial judges in the District may employ the procedure approved in Craig, notwithstanding the absence of local enabling legislation). To justify such a conclusion, the court must: (1) hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant, and (3) find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis. See Craig, supra, 497 U.S. at 856 (explaining that "[i]f the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present"); see also Jam J., supra, 825 A.2d at 917 (the judge must make an individualized, evidence-based finding of "serious harm" to potential child witness). We have followed Craig in resolving issues relating not only to testimony by young children, but also to testimony by teenage witnesses. See Ahmed v. United States, 856 A.2d 560, 561 (D.C. 2004) (applying Craig to permit a "teenage" girl to testify against her father via closed-circuit television, where expert opined that teenager's continuing to testify "would ultimately escalate [her] stress to trauma").
Application of the analysis that we laid out in Jam. J. will sometimes permit the complete exclusion of live testimony by a child witness whose hearsay statements are admitted as substantive evidence against the parent in a neglect proceeding. Craig permits the government to present a child's testimony via closed-circuit television in the context of a criminal prosecution, notwithstanding the rigorous demands of the Sixth Amendment. In light of these precedents, the restriction that Judge Ryan employed here -- permitting K.S. to testify before the judge in the neglect proceeding while her mother J.S. watched and listened via closed-circuit television with an opportunity for cross-examination -- easily falls within the range of restrictions that the trial court could impose in balancing the important competing interests at stake. Accordingly, the only real issue is whether the trial judge had a sufficiently firm evidentiary basis for the balance that he reached. We are satisfied that Judge Ryan's ruling was supported by a sufficient factual foundation.
Along with its motion to permit K.S. to testify via closed-circuit television, the District submitted to the court an evaluation prepared by Dr. Missar, who had interviewed and tested K.S. on June 30, 2004. Dr. Missar opined that "testifying in open court will be traumatic for [K.S.] . . . .
[I]t would likely be much less traumatizing for her if she were able to testify outside the presence of her mother (in some way)." Thus, Judge Ryan was presented with, and he expressly relied on, expert evidence that an arrangement such as closed-circuit television was necessary to protect K.S.; that the adverse effect on K.S. of testifying in open court related not to the courtroom generally, but to the presence of J.S.; and that K.S. would suffer "trauma" -- i.e., more than de minimis harm -- if she had to testify in her mother's presence.*fn12
We recognize the force of J.S.'s argument that permitting K.S. to testify via closed-circuit television prevented K.S. from having to "look her mother in the face," a result that J.S. contends facilitated the child's making of false accusations. Our system of justice relies heavily on precisely such confrontation to deter lying and promote truth-telling. See Coy v. Iowa, 487 U.S. 1012, 1019 (1988) (observing that a "witness may feel quite differently when he has to repeat his story while looking at the man whom he will harm greatly by distorting or mistaking the facts") (citation and quotation omitted). However, this record -- which includes testimony by both K.S. and her relatives to the effect that K.S. was "petrified" of her mother -- provides us ample reason to think that being required to testify in her mother's presence may have made K.S. reluctant to give a complete and truthful account of her experiences with her mother. See Jam J., 825 A.2d at 915 n.8 (noting that there is evidence in the psychological literature that a child's live, in-court testimony before a guilty defendant "may promote inaccurate testimony"). Given that the core evidence of neglect in this case included testimony about the mother's fear-inducing threats to, and extreme physical discipline of, the child and about trauma the child suffered as a result, we must reject J.S.'s suggestion that she had a near-absolute right to be present in person for K.S.'s testimony at the neglect hearing. Cf. Williams v. United States, 859 A.2d 130, 136-37 (D.C. 2004) (closed-circuit procedures warranted where child stopped responding to questioning, cried in witness room, and expressed fear of defendant); Ahmed, supra, 856 A.2d at 565 (child witness repeatedly expressed fear of testifying before father and ran away and slept outside for a night to avoid returning to court).
J.S. suggests that the trial court could not reasonably rely on Dr. Missar's opinion as to the likely impact on K.S. of testifying in open court because Dr. Missar utilized "self-reporting measures," to wit, K.S.'s own "one-sided" descriptions of her experiences and feelings. However, as an expert in adolescent psychology, Dr. Missar could premise his opinion on interviews and tests of the type upon which "experts in [his] profession reasonably rely." In re Melton, 597 A.2d 892, 901 (D.C. 1991); see also District of Columbia v. Anderson, 597 A.2d 1295, 1300 (D.C. 1991) ("The facts underlying an expert opinion do not have to be uncontroverted"). J.S. has provided us no reason to question Dr. Missar's reliance on the evaluation techniques and tests that he described using with K.S. (including the Behavioral Assessment System for Children), and case law indicates that other experts also use such measures in diagnosing PTSD and mental and emotional conditions in children. See, e.g., State v. Scott, No. M2007-02024-SC-S09-CO, 2009 WL 152740, at *8 (Tenn. 2009) (observing that "[m]edical professionals reasonably may be expected to rely on self-reported patient histories," that many diagnoses, including PTSD, "cannot be validated by objective testing or are so difficult to validate that routine clinical practice relies solely on self report," that "reliance upon self-reporting is certainly common and often sufficient to be deemed reliable," and that cross-examination can effectively address reliability concerns); Blake B. v. Council Rock Sch. Dist., No. 06-1968, 2008 WL 4489793, at *8 (E.D. Pa. Oct. 3, 2008) (approving school psychologist's use of the Behavioral Assessment System for Children in conjunction with other diagnostic tools).
The contention on which J.S. focused at oral argument is that there was not sufficient evidentiary support for the trial court's finding that K.S. was a neglected child within the meaning of D.C. Code §§ 16-2301 (9)(A)(i) and 16-2301 (9)(A)(ii). We disagree.*fn13
D.C. Code § 16-2301 (9)(A)(i) establishes that the term "neglected child" includes a "child who has been . . . abused by his or her parent . . . or whose parent . . . has failed to make reasonable efforts to prevent the infliction of abuse upon the child." D.C. Code § 16-2301 (9)(A)(i) (2001). "Abuse" includes "infliction of physical or mental injury," and "mental injury," in turn, refers to "harm to a child's psychological or intellectual functioning, which may be exhibited by severe anxiety, depression, withdrawal or outwardly aggressive behavior." D.C. Code §§ 16-2301 (23)(A)(i), -2301 (31). The term "neglected child" also includes a child who "is without proper parental care . . . necessary for his or her physical, mental, or emotional health . . . ." D.C. Code § 16-2301 (9)(A)(ii).
Judge Ryan found that K.S. was a neglected child because "the vaginal penetrations and beatings of [K.S.] over time constitute abuse by [J.S.]."*fn14 J.S. argues that there was not sufficient evidence of physical injury or lack of physical care to sustain a finding of neglect because there was no evidence that K.S. suffered any serious injury from the episodes of beating or hitting that government witnesses alleged.*fn15 She also contends that there was an insufficient basis for a finding of sexual abuse, since Judge Ryan specifically credited J.S.'s testimony that she loved K.S. and wanted the best for her, and found that J.S. did not act with "malice" in digitally penetrating K.S.'s vagina.*fn16 We need not address these arguments because, even assuming (without deciding) that J.S. is correct on these points, the record contains sufficient evidence of mental and emotional harm to the child to support a neglect finding. Judge Ryan stated expressly that he believed K.S.'s testimony, which was that J.S. beat her, threatened to kill her, prayed aloud that she would not kill her, and conducted "virginity exams" on her, and that this treatment by her mother left her "depressed" and "want[ing] to commit suicide."*fn17 Much of K.S.'s testimony was corroborated by the testimony of A.S. and K.S.'s other relatives. Dr. Missar testified that K.S. exhibited symptoms of depression and anxiety and developed PTSD as a result of the vaginal examinations and excessive physical discipline by her mother.*fn18 Together, this testimony afforded the trial judge an ample basis to find that J.S. inflicted mental and emotional injury upon K.S. and failed to care for her mental and emotional needs, rendering her a "neglected child" within the meaning of D.C. Code §§ 16-2301(9)(A)(i) and (ii). Cf. D.C. Code 16-2301(31) (defining "mental injury" as including severe anxiety or depression); N.P., supra note 16, 882 A.2d at 250 (upholding finding of neglect where psychologist testified that child suffered depression, suicidal ideation, and post-traumatic stress disorder as a result of father's violence towards her); In re L.D.H., 776 A.2d 570, 575 (D.C. 2001) (evidence that child witnessed father abuse and injure child's mother was sufficient to establish "mental abuse").
J.S. argues that the court's findings are internally contradictory because the court both (1) found it "difficult . . . to understand that the mother who has micromanaged her child's life to the extent that J.S. could make the mistake between gonorrhea and gardnerella" and (2) at the same time, believed K.S.'s account that her mother beat her after telling her that she had contracted gonorrhea. However, Judge Ryan heard testimony that J.S. seemed "obsessed" with deterring K.S. from having sex, as well as testimony that J.S. frequently beat K.S. for insignificant mistakes or at the slightest provocation. In light of that testimony, Judge Ryan could, without inconsistency, both believe that J.S. told K.S. that K.S had gonorrhea as an explanation for beating her and disbelieve J.S.'s explanation that she misunderstood the laboratory report to show that K.S. had tested positive for gonorrhea.*fn19
Wherefore, the judgment of the Superior Court is hereby affirmed.