In re S.L.E.

677 A.2d 514, 1996 D.C. App. LEXIS 114
District of Columbia Court of Appeals·Decided June 6, 1996·No. Nos. 94-FS-146, 94-FS-782·Published·Cited by 13 cases

Opinion

SCHWELB, Associate Judge:

The District of Columbia appeals from a Superior Court order terminating judicial involvement in a child neglect proceeding and thus ending the court’s responsibilities vis-a-vis a little girl who had been physically and sexually abused by her mother’s live-in boyfriend. The District contends that the trial judge abused her discretion in closing the case in the absence of any evidence that the abuser had complied with the court’s orders, that he had discontinued the use of unlawful drugs, or that he had otherwise established that his unsupervised presence in the home would no longer constitute a danger to the child. We reverse.

I.

THE TRIAL COURT PROCEEDINGS

On June 1, 1992, respondent S.L.E. was living with her mother, her two brothers (aged 17 and 9), and J.M., her mother’s live-in male companion. S.L.E. later testified that, on that day, she and her 9-year-old brother returned from school at about 3:30 p.m. Their mother was at work, but J.M. was at home. J.M. gave S.L.E.’s brother some money and sent him to the store. He then entered ■ S.L.E.’s bedroom and locked the door behind him. According to S.L.E.,

I was in the bedroom and I was doing my homework, and [J.M.] came in there and told me to take [off] all my clothes, and I said, no, no, and I covered my eyes and put my hands behind my back. And he took the towel off and he told me to touch his private part, and I did and I covered my eyes again. And then he pulled me down and choked me and told me if I told my mamma, that he would kill me and my mommy.

S.L.E. was eight years old.

Two of S.L.E.’s schoolmates reported the “incident” to a teacher, and the police were notified. The District instituted child neglect proceedings against J.M. on June 5, 1992, alleging that he was acting “in loco paren-tis ” towards the child. Following an initial hearing on that date, Judge Joseph M.F. Ryan ordered that S.L.E. continue to live with her mother, and that J.M. “stay away from the child and the child’s home.”

[516] A fact-finding hearing was held on February 17, 1993 before Judge Patricia A. Wynn. S.L.E. testified, but j.M. did not. At the conclusion of the hearing, the judge made oral findings of fact and conclusions of law, which were later converted into a written order. The judge specifically found that at the time of the abuse, J.M. was living with S.L.E. and her family, and that he

acted in loco parentis with regard to [S.L.E.] and her brother. He looked after them at home each day when they returned from school, accompanied them on outings on the weekends such as to the movies or to the circus, and purchased clothes and food for them on occasion.

The judge further found as follows:

By a preponderance of [the] evidence, the District of Columbia has demonstrated in this case that [S.L.E.] was abused by [J.M.], her mother’s paramour, on June 5, 1992. The court credits all aspects of [S.L.E.’s] testimony regarding the incident, including [J.M.]’s commands that [S.L.E.] undress and that she touch his private parts. It was clear that [S.L.E.] has described the incident many times, given that she recounted the events in virtually the same words several times during the course of her testimony. In spite of that fact, the court finds [S.L.E.] to be both a competent and a credible witness. Even if the court did not credit [S.L.E.’s] testimony regarding the sexual aspects of the incident, the choking alone would be sufficient for a finding of neglect under D.C.Code § 16-2301(9)(A) [1989].

The judge found that S.L.E. was an abused child. She ordered that, pending the disposition hearing, S.L.E. remain in the care and custody of her mother, subject to the condition that the child, her mother, and J.M. all participate in family counseling. The judge ordered J.M. to stay away from S.L.E. and from her home, “other than for supervised visitation with her at the discretion of the probation officer.”

The disposition hearing was held on April 5, 1993. S.L.E.’s guardian ad litem (GAL) expressed concern about developments since the trial. She complained that notwithstanding the stay-away order, there had apparent ly been substantial contact between S.L.E. and J.M.. She also related that the mother appeared to be angry regarding court intervention and was now questioning whether the abuse had in fact occurred. J.M.’s counsel asserted that his client would participate in family counseling, and that there was no reason to retain in effect the previously issued stay-away order. The judge emphatically disagreed.1 At the conclusion of the hearing, the judge ordered that S.L.E. be placed with her mother under the protective supervision of the court. See D.C.Code § 16-2320(a)(2) (1989 & 1995 Supp.). The judge also continued in effect the stay-away order against J.M.,2 but no inquiry was apparently made as to whether there had been prior violations of that order.3

Several review hearings were held over the thirteen months that followed. At the first of these hearings, on August 4, 1993, the Assistant Corporation Counsel stated that during a session with the family therapist, J.M. had admitted to “drinking and using cocaine,” and that J.M. was apparently claiming that his sexual abuse of S.L.E. was due to his substance abuse. Over the objection of counsel for J.M., the judge ordered that J.M. submit to weekly drug testing, with the [517] proviso that “if [there are] four consecutive negative results, testing may stop.” The judge also authorized supervised visitation between S.L.E. and J.M.; she stated, in response to a question from counsel, that such visitation was to continue regardless of the results of the drug tests.

Unfortunately, J.M. did not comply with the court’s order. On August 4, 1998, the day of the review hearing, he tested positive for cocaine. He failed to appear for any of his other scheduled urine tests, and he apparently ignored the stay-away order. The social worker expressed her apprehension regarding S.L.E.’s safety if protective supervision were discontinued, noting that J.M. was once again living in the family home and might still be using cocaine.4 The judge, however, believed that the case should soon be closed:

I think the thing that has changed since this case came in is the fact that ... the mother became aware of the potential for this problem, and I really don’t think that there’s a continuing role for the court in this matter.

The judge ordered a psychological examination of S.L.E., and directed that “[protective supervision shall be terminated in 45 days unless any party requests an additional hearing based on the results of the psychological examination.”

On November 23, 1993, S.L.E. was examined by a clinical psychologist, who reported that, according to S.L.E. and her mother, J.M. was once again living in the family home. The psychologist found that

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In re S.L.E., 677 A.2d 514, 1996 D.C. App. LEXIS 114 (D.C. 1996).

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