In Re DO

798 So. 2d 417
CourtMississippi Supreme Court
DecidedMarch 15, 2001
Docket1999-CA-02120-SCT
StatusPublished

This text of 798 So. 2d 417 (In Re DO) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re DO, 798 So. 2d 417 (Mich. 2001).

Opinion

798 So.2d 417 (2001)

In the Interest of D.O. and T.O., Minors.

No. 1999-CA-02120-SCT.

Supreme Court of Mississippi.

March 15, 2001.

David P. Oliver, Gulfport, Attorney for Appellants.

Herbert Wayne Wilson, Wade M. Baine, Gulfport, Attorneys for Appellee.

Before PITTMAN, C.J., COBB and DIAZ, JJ.

*418 DIAZ, J., for the Court:

¶ 1. On August 24, 1999, the Harrison County Youth Court, Judge Michael H. Ward presiding, upon a recommendation made by the "intake unit" of the Department of Human Services (DHS), ordered an abuse and neglect petition filed on behalf of T.O. and her younger brother D.O., II, whose father and mother are D.O. and J.O., respectively. The petition alleged that the father, D.O., sexually abused his daughter, T.O., and that D.O., II, was neglected due to the fact that he resided in the same home in which T.O. suffered the abuse.[1] Three separate shelter hearings were held regarding this matter, with the lower court issuing rulings on each. During a later hearing, the court appointed Dr. Horrell Townsend to examine T.O. for signs of sexual abuse. After a plea hearing, the case was set for trial.

¶ 2. On October 26, 1999, trial commenced and upon hearing the testimony and evidence presented, Judge Ward took the matter under advisement. On November 9, 1999, Judge Ward adjudicated the children as abused and neglected as described in the petitions. At a subsequent hearing on December 13, 1999, the lower court also found aggravating circumstances to exist, thus holding that reasonable efforts toward reuniting the children with their parents by the State were not required. Two days later, the trial judge held a permanency hearing and took those issues under advisement.

¶ 3. This appeal by the parents is based upon the assumption that the adjudication of abuse and neglect with aggravating circumstances by the trial court was in error because:

I. THE STATE FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT D.O. SEXUALLY ABUSED T.O.
II. THE YOUTH COURT ACT IS UNCONSTITUTIONAL PURSUANT TO THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND CORRESPONDING SECTIONS OF THE MISSISSIPPI CONSTITUTION.
III. THE TRIAL JUDGE ERRED BY FINDING THAT AGGRAVATING CIRCUMSTANCES EXISTED.

Upon a thorough review of the record, we find no reversible error.

FACTS

¶ 4. Julia Wasvick is a social worker at Mississippi's Department of Health in Harrison County. Wasvick has known and counseled the parents since March of 1998, when D.O.'s wife, J.O., became pregnant with D.O., II. During that pregnancy, Wasvick enrolled J.O. in the Health Department's high risk program, due to her mental illness. She has been diagnosed as mildly mentally retarded with an estimated IQ of 66 complicated by her bi-polar personality disorder. T.O. was also found to be mildly mentally retarded, her IQ estimated at 57.

¶ 5. On August 19, 1999, the mother took the children to the Health Department to obtain lice medication for T.O. While waiting for the medication to arrive, the mother walked to Wasvick's office to "show off" D.O., II, to her former counselor. During *419 their visit, Wasvick inquired about the rest of the family. In response, J.O. told Wasvick that someone accused the father of abusing T.O. causing the family problems. Wasvick asked the mother if the allegations were true, and she confessed that they were, in fact, true. The mother further admitted that she had seen the father having sex with T.O., who was three years old at the time. J.O. mentioned that the abuse stopped for a while, but had recently begun again. J.O. then asked Wasvick not to repeat this information to anyone and hurriedly left her office.

¶ 6. Kari Mallory, an investigator from the DHS, testified that after receiving Wasvick's report, she went to the parents' home to remove the children from their custody. While Mallory was there, J.O. explained that the conversation Wasvick recounted in her report was the result of a simple misunderstanding. She told Mallory that she never admitted to Wasvick that her husband was abusing T.O., but rather Wasvick simply misunderstood what she said.

¶ 7. At trial, a report made by Mallory detailing her visit to the family's home was offered into evidence.[2] In this report, Mallory recorded what occurred when she arrived to pick up the children. She stated that the father pointed to T.O.'s unclothed genital area and asked if this was where he was supposed to be "finger f* * *ing" T.O. Throughout the course of their encounter, when D.O. referred to J.O., he simply called her "my bitch." Mallory further testified that the father told her that he'd "rather cut that off [his penis] than mess with [T.O.]," adding, "Now, if she were fifteen or sixteen, that would be different."

¶ 8. Mallory also noted that the house has only two bedrooms, leading to somewhat unusual sleeping arrangements. The father sleeps in the bed in the back bedroom, as it is the only air-conditioned room. J.O. sleeps on the floor on a pallet with the children in the back bedroom as well; D.O., II, does not have a crib. The children's paternal grandmother sleeps in the front bedroom, with T.O. occasionally sleeping with her. Both parents receive SSI benefits and are unemployed except for a lawn service they jointly operate. Mallory testified that neither the father nor the mother ever admitted sexually abusing the child. Mallory also believes that J.O. wants her children back and will do whatever is necessary to achieve that end.

¶ 9. Dr. Horrell Townsend, the expert witness appointed by the trial court, then took the stand. He was qualified and accepted, without objection, as an expert in obstetrics and gynecology. Dr. Townsend examined T.O. on September 8, 1999. Specifically, he anesthetized T.O. and performed a pelvic examination using a laparoscope to document his findings with photographs. As a result of the examination, Dr. Townsend found that T.O. had an abnormal relaxation of the opening of the anus and rectum. He testified that only two scenarios would cause such an abnormal opening; a self-inflicted anal intrusion or sexual abuse. Dr. Townsend further testified that it was extremely unlikely that T.O. did this to herself because of the extreme pain it would have caused. Among the hundreds of cases that Dr. Townsend had seen, he classified this one as "remarkable" due to the amount of dilation the anal opening exhibited. It was Dr. Townsend's expert medical opinion *420 that strong evidence of previous penetration of the anus and rectum existed based upon both the amount of anal dilation T.O. exhibited and the minimal anal traction found in her rectum.

¶ 10. During cross-examination, Dr. Townsend was given a report[3] written by Dr. Maria M. Moman to review. Laura Jones, a social worker, took T.O. to Dr. Moman on October 19, 1999, for a perianal examination because T.O. complained of "itching" in that area. Dr. Moman's report stated that there was inconclusive evidence of sexual abuse. When asked to reconcile these findings with his beliefs, Dr. Townsend pointed out that Dr. Moman's report was written forty-five days after his examination, without notation as to whether the child was anesthetized.[4] Dr. Townsend also pointed out that enough time may have elapsed between his examination and Dr. Moman's to allow T.O.'s body to heal, thus effectively erasing the physical abuse. Dr. Moman's report did note that when T.O. was asked if anyone touched her in her crotch area, she responded "Daddy."

¶ 11. Dr.

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Bluebook (online)
798 So. 2d 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-do-miss-2001.