In re K.S., No. 04-FS-1597.

• Decision Date: 05 March 2009
• Docket Number: No. 04-FS-1597.
• Parties: In re K.S., J.S., Appellant.
• Court: D.C. Court of Appeals

966 A.2d 871

In re K.S., J.S., Appellant.

No. 04-FS-1597.

District of Columbia Court of Appeals.

Argued February 5, 2009.

Decided March 5, 2009.

Marion E. Baurley, for appellant.

Alice Stevens, Assistant Attorney General, with whom Peter J. Nickles, Interim Attorney General at the time the brief was written, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Catherine Ferrando, Assistant Attorney General, were on the brief for appellee.

Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and PRYOR, Senior Judge.

THOMPSON, Associate 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.

I.

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.¹

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.² 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."³ 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.⁴ 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."⁵ 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.⁶ 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."⁷ 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.⁸ Dr. Missar characterized the type of vaginal examinations that K.S. described—examinations for the purported purpose of determining whether K.S. was sexually active⁹—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.¹⁰ 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."

II.

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...