Nine cases on child abuse/neglect law and procedure

The cases are Boyles v. DSS 1997, Shull v. Commonwealth 1993, DFS v. v. Nordel 1999, Duncan v. Commonwealth 2003, and its reversal, Commonwealth v. Duncan 2004, Jackson v. Marshall 1995, McBeth v. Commonwealth 1999, DSS v. Kennedy 1998, Beardsley  v. Clary 1997.

CHILD ABUSE — ADMINISTRATIVE PROCEDURE.  “Emotional abuse” may mean all things to all people, but it is enough to place a father in the state computers forever as a child abuser.  Nor does it matter that DSS failed to follow its own regulation in processing this through the administrative procedure that you must exhaust before going to court.  Procedural errors are meaningless in this context, the Court of Appeals says in an unpublished opinion, when the trial court finds that the agency findings were supported by the facts and the record.  After all, the Court of Appeals says, an error in the initial collection of facts could have been remedied at later stages, and that cures any prejudice to the appellant father.  DSS does not have to follow the procedural rules, because the trial court considered that the evidence established that this father is guilty.  Boyles v. DSS, 11 VLW 1303 (5/6/97).

CHILD ABUSE -- SODOMY, ETC.  It was held all right for the court to more or less throw the book at a 37-year-old woman for having oral sex with a 13-year-old boy.  It constitutes unlawful carnal knowledge, which is still a crime in Virginia.  (But think of the talk shows!)  Shull v. Commonwealth,    8 VLW 99 (1993).

CHILD ABUSE — ALL KINDS — PLEADING-PROOF VARIANCE — JDR AND CIRCUIT — DOUBLE JEOPARDY.  When the welfare department seeks to take children away from their parents on grounds of child abuse, it can charge them with one kind of abuse (sexual) and convict them of another (physical assault), the Court of Appeals points out.  Thus a Circuit Court judge, who thought that parents who appealed their sexual abuse conviction from the Juvenile Court should not have to defend a different crime on the Circuit Court de novo appeal, is reversed.  The welfare department's juvenile petition in Fairfax County Department of Family Services v. Nordel, 29 Va. App. 400, 512 S.E.2d 830 (1999), alleged that the child was abused or neglected under Code §16.1-228, and although the opinion speaks of abuse by the father, both parents were the appellants in the Circuit Court and the appellees in the Court of Appeals.  The trial judge in Circuit Court ruled that the proof that could be presented against the Nordels should not exceed the scope of the proof upon which the charges were "found founded" in Juvenile Court, but the Court of Appeals emphatically declares that this limitation ruling was wrong.  After all, as the Court of Appeals explains, when you face all these charges in Juvenile Court under 16.1-228, the Juvenile Court can pick and choose through the whole range of five different subdivisions to convict on.  The welfare department, in JDR Court, could charge them under one and get them convicted under another.  And then, because a Circuit Court's jurisdiction in a de novo appeal is strictly "derivative," its powers are exactly the same as the Juvenile Court's. Paragraph 1 of 16.1-241 allows this result in Juvenile Court, so of course the same thing can happen upstairs.  And this doesn't offend the  Double Jeopardy Clause either, the Court of Appeals says.  So how did all this happen?  An anonymous busybody noticed that a 15-year-old girl had bruises on her wrist and leg, and was told that the father had hit her with a racket in disciplining her for refusing to attend a family event.  By the time the welfare department had interviewed the girl a second time, she was saying that the father touched her private parts. When the teenager didn't show up to be a witness in the Circuit Court, the County went ahead on the second-hand proof of the bruises.  That is when the Circuit judge interfered, which was reversible error. 

CHILD ABUSE — CRIMINAL NEGLIGENCE.  An unpublished en banc opinion shows that a significant (five-judge) minority of the Court of Appeals is ready to redefine felony child abuse to be equated with any and all criminal negligence.  Looking at a string of acts by a father which certainly appear callous and careless, and which began by entrusting to the care of questionable persons, the majority holds that proving mere criminal negligence is not enough to sustain a conviction for criminal abuse and neglect of a child under §18.2-371.  The majority doesn't find any of the acts "so gross, wanton and culpable as to show a reckless disregard for human life," and that includes feeding a six-month old baby some wine cooler.  It would be pure conjecture and speculation, the Court said, to infer that this endangers the child's life.  Four dissenting judges urged that the defendant in Duncan v. Commonwealth, 17 VLW 1155 (4/8/03) showed the necessary reckless disregard.  Judge Kelsey argued that the intent requirement of criminal negligence does not require any kind of risk of death, and that the phrase "reckless disregard for human life" simply equates with criminal negligence.

CHILD ABUSE – PARENTS – NEGLECT – ALCOHOL TO BABIES.  The Virginia Supreme Court did not like at all the Court of Appeals' recent decision that they could not uphold a father's conviction of criminal child abuse and neglect under §18.2-371.1.  Re-examining the totality of the evidence, and not limiting its review of the record to the act which the Court of Appeals had focused on when it reversed his conviction, the Supreme Court said that while the language of §18.2-371.1(B)(1) does not apply to ordinary negligence, it was basing its conviction decision on the prohibition of willful acts or omissions so gross, wanton and culpable as to show a reckless disregard for human life. This has contrasted with Subsection (A) which requires that the child actually suffer a serious injury as a result.  Since that requirement is not present in (B)(1), which defines a lesser offense (Class 6 felony), reckless disregard that subjects a child to a substantial risk of serious injury is enough.  The court disagrees entirely with the intermediate court's reasoning that the evidence was insufficient. Apparently the father was partying and flying high on alcohol and drugs, and tried to stop the six-month-old boy's crying by giving him a wine cooler in a baby bottle.  There was also neglect over a long period of time – seven-plus hours – in which the child went without food or liquids when the father left the baby with people he barely knew, without supplying them with food or formula.  Commonwealth v. Duncan, ___ Va. ___,  18 VLW 1000 (3/5/04).

CHILD ABUSE -- DSS ADMINISTRATIVE PROSECUTIONS -- FINAL FINDING -- COURT REVIEW.  The Department of Social Services in its "investigation" of a child abuse complaint can issue a "final disposition" of either "founded" or "unfounded" under Code §63.1-248.6(D).  What they cannot do, the Court of Appeals holds, is to use some other final-disposition formula, such as "reason to suspect," or "reason to suspect -- sexual abuse."  That is so even if the defendant is an employee of a county youth services program, who people would want listed in the computers for the rest of his life as a suspected child abuser who happened to get off on a technicality such as lack of evidence.  The Court of Appeals holds in Jackson v. Marshall, 19 Va. App. 709, 454 SE2d 23, 9 VLW 1003 (2/14/95), that DSS regulations and "guidelines" purporting to expand the welfare department's statutory grant of powers to authorize issuing final "suspected" findings is violative of the statute.  DSS is authorized to make initial determinations of "cause to suspect" because quick interim action may be needed before there is time to sort out the legalities and the facts.  However, a final disposition is something else entirely.  Also, destroying the case records was not sufficient relief for the branded child services worker.

CHILD ABUSE AND NEGLECT — CRIMINAL — STANDARD OF CARE RELATED TO DEFENDANT’S EDUCATION AND EXPERIENCE — “DISREGARD FOR HUMAN LIFE” IS AN ELEMENT.  A mother should not have been convicted of child neglect where a babysitter’s son had caused her child to sit on an electric space heater, and the mother put ointment on the child’s burns, but sought no medical care “because of the expense, the consequences of taking time off work, and her fear that Social Services would become involved.” The Court of Appeals, interestingly, does not criticize any of these reasons, and adds that Defendant's “response to Anthony's serious injuries was negligent and highly derelict. However, she cannot be held to a level of understanding beyond her education and experience. The doctor perceived a need for medical treatment. There was no evidence that a person of [mother’s] education and experience should have had the same perception.”  Code § 18.2-371.1(B) punishes a “willful act or omission … so gross, wanton and culpable as to show a reckless disregard for human life.” Since the burns were not actually nor apparently life-threatening, “though serious and painful,” that statute does not apply, the Court concludes. The trial court had found that “a continuous series of injuries” occurred at the sitter’s, and a doctor testified the child had appeared “unkempt and dehydrated”, but Social Services did not put sufficient evidence in the record to support any finding about any of these other allegations, including the trial court’s opinion that the mother’s continued use of the sitter was neglectful. McBeth v. Commonwealth,   ___ S.E.2d ___ (9/29/99).

CHILD ABUSE/NEGLECT — DEFENDANT PARENTS' PROCEDURAL RIGHTS — ACCESS TO DSS RECORD.  Code Section 63.1-248.5:1(C) is pretty straightforward about the right of a wrongly accused parent whose case ends in a "not founded" finding to make DSS turn over its investigative records about the complaint against him. Nevertheless, when the DSS refused to follow this statute and turn over the records to the father who was falsely accused of sexually molesting his daughter, the Gloucester County DSS took the case all the way to the Supreme Court and lost, but got a dissent by Justice Koontz in Gloucester County DSS v. Kennedy, ___ Va. ___, 507 S.E.2d 81 (11/6/98).  The Supreme Court majority explained that this statute does provide a summary procedure to enable wrongfully accused persons to obtain the details of the accusation from the DSS, and it does not give the Department a right to have a new trial and present evidence, nor obligate the Circuit Court to hold an evidentiary hearing.  Interestingly, the statute does not make a trial court give a complaining parent the records if it thinks that (A) there's any reasonable question of fact whether the complaint was made in bad faith or with malicious intent and (B) disclosure of the complainant's identity would be likely to endanger the complainant's safety — but the trial court just did not find those things here.  The DSS, of course, refused to even turn over the records to the court for in camera review. Justice Koontz, dissenting, believes that it is important to give welfare departments a second chance to prove in an evidentiary hearing that people accused of child molesting by their divorced co-parents are dangerous people despite their own findings of "not founded," and he believes the second trial that the DSS wants is important to protecting the interests of complainants and consistent with the public policy of encouraging more child abuse and neglect reports.

CHILD ABUSE — REASON TO SUSPECT.  Maybe the courts can no longer make findings of “unfounded with reason to suspect” child sexual abuse, but if the DSS makes a finding of “reason to suspect” it, that is enough to justify removal of a child from the parent’s home.  Even if the parent claims she did not get adequate notice before the hearing, the Court of Appeals says in an unpublished opinion, it matters not.  Reason to suspect is all it takes.  Beardsley  v. Clary,  12 VLW 231 (7/15/97).