In re A.S.

643 A.2d 345, 1994 D.C. App. LEXIS 92
CourtDistrict of Columbia Court of Appeals
DecidedJune 9, 1994
DocketNo. 92-FS-617
StatusPublished
Cited by11 cases

This text of 643 A.2d 345 (In re A.S.) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.S., 643 A.2d 345, 1994 D.C. App. LEXIS 92 (D.C. 1994).

Opinion

MACK, Senior Judge:

This neglect proceeding evolved when a family made an emergency trip to a hospital because of the young mother’s severe back pain, when her hungry, bottle-fed, twenty-five-day-old infant began crying during the ensuing wait for the mother’s treatment, and when an exasperated father administered excessive discipline in an attempt to quiet the infant.

The trial judge, hearing a child neglect petition filed by the District against the parents of the infant, A.S., found that the government had proved by a preponderance of the evidence that A.S. was a neglected child pursuant to D.C.Code § 16-2301(9)(A)1 be[346]*346cause of abuse by the father in shaking and spanking the infant. The court also found that the government had proved neglect (on the part of both parents) pursuant to § 16-2301(9)(B) in view of the testimony of an emergency room hospital physician (who examined the crying baby) that A.S. was suffering from clinical dehydration.2

The mother (B.S.) alone appeals, urging that under the circumstances of this case, the evidence of the dehydration of A.S. did not rise to the level of statutory neglect. We agree and we recite those circumstances in further detail below.

I.

On the morning of September 7, 1991, B.S., mother of A.S. and appellant in this case, was taken by her husband to Providence Hospital after she began experiencing severe back pains. The infant, A.S., who was twenty-five days old at the time,3 was carried by his parents to the hospital. While B.S. waited to be examined by the next available physician, the father went to the cafeteria for breakfast and took A.S. with him, leaving the child’s bottle with B.S. in the waiting room. Before A.S. and his father returned from the cafeteria, B.S. was admitted into the examination room. B.S. carried with her the baby bag which contained A.S.’s bottled formula. When A.S. and his father returned to the waiting room, A.S. began to cry. Unsuccessful in his attempts to quiet A.S., the father carried the infant outside of the hospital. A hospital employee, who was outside on a cigarette break, noticed the father shaking A.S. in a rough manner. After observing the father strike the infant’s buttocks and order him to stop crying, the hospital employee hurried back to the emergency room and returned with a nurse. The nurse witnessed the father forcefully strike A.S. on the buttocks before security guards were called to the scene. When the father noticed the hospital staff and security approaching him, he willingly handed A.S. to a security guard. Shortly thereafter, A.S. was examined by Dr. Paul Matera, an emergency room physician, who found all of the infant’s vital signs to be normal, but determined that the child was clinically dehydrated. A.S. was then fed a four-ounce bottle of pedialyte solution, an electrolyte solution specifically for infant consumption. Following an investigation, the District of Columbia filed a child neglect petition against the parents alleging that A.S. was a neglected child pursuant to D.C.Code § 16-2301(9)(A), (B), and (C) (1989).

The trial court held a factfinding hearing on the District’s petition. At this hearing, both parents testified that on the morning of September 7, 1991, A.S. was fed an eight-ounce bottle of formula between 5:30 and 6:00 a.m. and another bottle while riding in the taxicab to the hospital. B.S. also stated that A.S. had a healthy appetite and that he was usually fed every one and one-half hours. On behalf of the government, Dr. Matera testified that A.S. was diagnosed as suffering from “clinical dehydration” because the mucous membranes in his mouth were “fairly dry” and both the anterior and posterior fontanels4 were recessed. Dr. Matera also indicated that in his medical opinion, A.S. missed anywhere from one to three feedings and that he had been without food or liquids for six hours. Following the hearing, the trial court concluded that the government had proved by a preponderance of the evidence that A.S. was neglected under D.C.Code § 16-2301(9)(A) and (B) (1989), but failed to demonstrate “neglect” as provided in D.C.Code § 16-2301(9)(C). The trial [347]*347court’s adjudication of neglect pursuant to D.C.Code § 16-2301(9)(A), which relates to child abuse, was supported by the father’s conduct, but both parents were found “jointly, albeit in different degrees, responsible for the deprivation under [D.C.Code § 16-2301(9)(B) ].” In reaching its conclusion that A.S. was a neglected child under D.C.Code § 16 — 2301(9)(B), the trial court relied solely upon Dr. Matera’s testimony that A.S. was clinically dehydrated. The trial judge then entered a disposition order placing A.S. in the custody of I.C., B.S.’ cousin, and directed the government to submit written reports to the court by July 1, 1992, concerning the developmental assessment of the child as well as progress reports on the parents.5

II.

In a case tried by the judge without a jury, the judgment will not be disturbed on appeal except for errors of law “unless it is ‘plainly wrong or without evidence to support it.’ ” In re S.G., 581 A.2d 771, 774 (D.C.1990) (quoting D.C.Code § 17-305(a) (1989)). See also In re D.G., 561 A.2d 477, 479 (D.C.1989) (per curiam). It is also generally accepted that in a child neglect proceeding, the government is required to prove its case by a preponderance of the evidence. In re 630 A.2d 186, 192 (D.C.1993); In re S.G., supra, 581 A.2d at 774; In re N.H., 569 A.2d 1179, 1182 (D.C.1990); In re B.K, 429 A.2d 1331, 1333 (D.C.1981) (per curiam). When an appellant raises a claim of evidentiary insufficiency, we are bound to view the evidence in the light most favorable to the government, drawing no distinction between direct and circumstantial evidence. See In re S.G., supra, 581 A.2d at 774; In re T.M., 577 A.2d 1149, 1151 (D.C.1990).

Within this framework, we question the trial court’s conclusion that the evidence in this record was clearly sufficient to demonstrate that A.S. was neglected within the meaning of D.C.Code § 16-2301(9)(B). Dr. Matera testified that the feeding schedule of a normal child of A.S.’ age would range from one and one-half hours to three hours on the hour.

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Bluebook (online)
643 A.2d 345, 1994 D.C. App. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-as-dc-1994.