Mollenhauer v. Commonwealth

• Decision Date: 06 July 2021
• Docket Number: Record No. 0803-20-2
• Citation: 859 S.E.2d 680,73 Va.App. 318
• Parties: Christina M. MOLLENHAUER v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

73 Va.App. 318

859 S.E.2d 680

Christina M. MOLLENHAUER

v.COMMONWEALTH of Virginia

Record No. 0803-20-2

Court of Appeals of Virginia.

JULY 6, 2021

Linwood T. Wells, III, Richmond, for appellant.

Rachel L. Yates, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellee.

Present: Chief Judge Decker, Judges Beales and Athey

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Christina M. Mollenhauer appeals her conviction of child cruelty in violation of Code § 40.1-103. On appeal, she contends that the portion of the statute under which she was convicted is unconstitutionally vague. She further asserts that the evidence was insufficient to prove that her behavior violated the statute. We hold that the appellant failed to properly preserve her constitutional challenge for appeal. Additionally, we conclude that the evidence was sufficient to prove that she violated the statute. Consequently, we affirm the conviction.

I. BACKGROUND¹

The victim, S.M., is one of four children of Robert Mollenhauer. In October 2016, when S.M. was three years old, Robert and his children began living with Robert's parents, Christina Mollenhauer (the appellant) and Michael Mollenhauer. Robert's wife, the children's mother, also resided there initially, but the couple later divorced, and she moved out. The appellant and Michael helped Robert care for S.M. and her siblings.

In 2017 and again in 2018, different childcare and school officials contacted the Dinwiddie County Department of Social Services (DSS) due to concerns about S.M.

The information gathered during the ensuing investigation was wide ranging. It revealed that S.M. had more bruises than typical for children her age and that the family restricted S.M.’s access to food and kept her locked in a cage-like enclosure at night. The evidence also indicated that S.M. arrived at daycare or school with a black eye on at least two different occasions over the course of about a year and became nervous when asked what had happened. The family members who took her to daycare, including the appellant, explained the repeated bruising by saying that S.M. was "clumsy" and "f[ell] down a lot." A daycare provider reported that S.M. often started to "cower[ ] like she was a little bit scared" "when it was time to leave."

Regarding S.M.’s diet, the family told daycare employees that she was "allergic to everything" and could not have any snacks or other food from the facility. The amount of food she brought from home was "[n]ot even close to" what her peers were "bringing and consuming," and S.M. often said she was hungry and asked for more food. In addition, the daycare center was "told that [S.M.] couldn't have ... cupcakes" or other treats due to allergies. However, one day when S.M. "had been good," the family "allowed [her] to [have] a cupcake" there, which contradicted the premise that dietary restrictions

prevented her from consuming them. When S.M. reached kindergarten, the appellant gave school staff "strict directions not to give her any food" or sugar because it would "mess up" her bowels. S.M.’s lunches were small, and in the estimation of staff, she appeared "very hungry."

The investigation also revealed that Michael, with the permission of S.M.’s parents, built a cage-like enclosure in which S.M. slept at night. Michael characterized the enclosure as a special-needs bed and said that he made it, instead of buying one, to save money.

The evidence further showed that the family did not enroll S.M. in kindergarten in a timely fashion. The appellant reported that she "had concerns" about S.M. starting school because she was "not fully potty trained" and engaged in "bad" behavior including lying, stealing, and using bad words. The appellant and Robert told school employees that S.M. had bowel "accidents," which Robert characterized as happening "mostly on purpose." According to the appellant, the family had contacted S.M.’s doctor about whether school was appropriate for her in light of her behavior but "hadn't heard back." The school principal assured the appellant that the staff had a process for addressing any concerns about S.M. that might arise there.

Juxtaposed with the reports of S.M.’s family members that she was a "bad" child was information from daycare providers, teachers, and others that S.M. was sweet, smart, and well-behaved. They indicated that S.M. had occasional bowel and bladder control issues but described these as minor potty-training issues that improved over time.

The circumstances that triggered the instant charges arose in early September 2018. On September 5, S.M.’s second day of kindergarten, she arrived at school with a black eye, gave conflicting reports about how she sustained the injury, and seemed nervous when questioned. On September 6, Donna Harrison, an investigator for DSS's Child Protective Services division (CPS), interviewed S.M. at school. The same day, Harrison went to the Mollenhauer home. She examined the structure in which S.M. slept, which Harrison described as "a cage." She also observed firsthand that the Mollenhauers treated S.M. differently from her siblings in terms of both their demeanor toward S.M. and food preparation for her. Harrison further learned that S.M. had recently been to her pediatrician for a physical and the doctor had referred her to a psychiatrist. The appellant showed Harrison the psychiatrist's card but did not indicate that anyone had taken steps to make an appointment for S.M.

As a result of Harrison's interview and observations during the home visit, she immediately removed S.M. from the home. While S.M. was with Harrison, she was polite, pleasant, and able to go to the bathroom on her own.

A subsequent evaluation performed by Dr. Robin Foster, medical director of the child protection team for Virginia Commonwealth University Health Systems, included a review of S.M.’s weight history. She noted that while "children fall into a [particular] growth percentile" at birth and are "expected ... [to] stay [i]n that percentile," S.M.’s weight fell "precipitously" during the two years prior to her removal. Throughout S.M.’s first three years, her weight was between the 75th and 88th percentiles, which fell within a single percentile grouping.² Two years later, on the day after S.M.’s removal from the Mollenhauer home, her weight placed her in the 4th percentile. Dr. Foster explained that this history of weight loss constituted a decrease of five percentile groupings, significantly exceeding the decrease of "more than two percentile[ ]" groupings required to establish a failure to thrive.

Dr. Foster further noted that in the ten days between S.M.’s removal and her examination by Foster's team, S.M. gained an amount equal to 25% of her body weight, which placed her back in the 50th growth percentile. Foster testified that this rapid increase in weight indicated that "something [had been] acutely ... interfering with her nutrition." She ruled out any organic medical cause and concluded that "[m]edically speaking the only difference in that ten-day period was the environment in which [S.M.] was living." S.M., who reported "that she didn't get [enough] to eat in the previous environment," "was a good eater in foster care." Based on S.M.’s medical records, self-reporting, and significant weight gain after removal, Dr. Foster diagnosed a failure to thrive resulting from nutritional neglect.

Finally, Dr. Foster opined that S.M.’s history and medical records were "consistent with [a] medical diagnosis of child torture" because the evidence "m[et] all of the most common criteria" for that diagnosis. S.M. told Dr. Foster's team that "she slept" in a cage and "was locked in." Dr. Foster noted that the child had soft tissue injuries of a type inconsistent with those typically incurred by young children during play, was physically restrained and isolated by being kept in the sleeping enclosure, was deprived of food, and was socially isolated in that she was not registered for kindergarten in a timely fashion. Dr. Foster also pointed out that children undergoing physical and psychological trauma tend to "become very anxious," which sometimes causes symptoms of regression, including bedwetting and soiling themselves. She further noted, based on her team's examination of S.M. both shortly after her removal and again eight months later, that S.M. was not manifesting any behavior that would "warrant ... restrain[ing her in a] ... box."³

Consistent with the evidence at trial as outlined above, the appellant and Michael were charged with two counts each of child abuse in violation of Code § 18.2-371.1 and child cruelty in violation of Code § 40.1-103. One set of the child abuse and cruelty charges related to a period of several months while S.M. was in daycare (the 2017 charges). The other set related to a narrower period of about two weeks, from August 27 to September 10, 2018, including time while S.M. was in kindergarten (the 2018 charges).

The appellant and Michael were represented by different counsel in a joint trial. After hearing the evidence, the trial court acquitted them of the two counts of child abuse in violation of Code § 18.2-371.1 and the 2017 charges of child cruelty in violation of Code § 40.1-103. The court found them guilty of one count each of child cruelty occurring in 2018. It sentenced the appellant and Michael each to five years in prison and suspended both sentences conditioned upon five years of good behavior.

II. ANALYSIS

The appellant contends that the portion of Code § 40.1-103 that she was convicted of violating is void for vagueness. She further argues that the evidence admitted at trial was insufficient to prove that she engaged in behavior toward S.M. that violated the statute.

A. Constitutional Challenge to the Third Clause of Code § 40.1-103

1. Additional Background Related to the Constitutional Challenge

Code § 40.1-103 proscribes "caus[ing] or permit[ting]" any of three types of behavior toward a...