CRIMINAL ISSUES – CHILD SEX ABUSE – DSS WITHHOLDING OF EXCULPATORY STATEMENTS – PROSECUTOR’S BRADY RESPONSIBILITY – EXPERT TESTIMONY. A criminal case from Dinwiddie County, Tuma v. Commonwealth, 60 Va. App. 273, 726 S.E.2d 365 (6/12/12), holds some valuable information for the family lawyers who, sometimes unavoidably, get into these kinds of litigation. Even for those who don’t, it contains some welcome recognition of constitutional limitations on the power of social service agencies to conduct interviews and then deny access to the tapes of them, and an explicit declaration about the inability of prosecutors to avoid their civic and professional duties to safeguard and respect defendants’ constitutional rights. When a man was arrested for interfering with his 5-year-old stepdaughter, the child was interviewed by the county social worker and a Sheriff’s Department investigator, and the 30-40 minute interview was taped. At trial, it came out that the social worker still had the tape in her possession and the defense counsel, as a matter of discovery, asked to have it played. Investigators, of course, were ready to testify to the hearsay statements of the child. That was denied, and after the investigators and the “counselor qualified as an expert on adolescent trauma” testified, counsel moved to strike on the ground that the audiotape was the best evidence and that it had never come out. When the judge asked the Commonwealth’s Attorney whether he knew if the tape was exculpatory or not, the answer was no, because the social service agency had stood on their privilege to deny him access to it. When the judge asked the prosecutor if he was willing to “stand on” his statement about what was not on the tape he had not heard, he said yes. The judge said that if the prosecutor did not know, he would be violating the Brady rule. But after the judge asked the Commonwealth’s Attorney again whether he knew what was on the tape and the answer was no, the judge still denied access, held that the proof was adequate, and let the case go to the jury. The Supreme Court, citing such authorities as English case law from 1243 as to the public role and responsibility of public prosecutors, and The Public Records of the Colony Of Connecticut from August 1689 to May 1706, did not find the ruling of the judge valid, nor the performance of the local authorities in Dinwiddie County adequate to satisfy constitutional standards. In a lengthy opinion with many citations, the majority held that it is the prosecutor, and not the county DSS, that must decide whether evidence in their possession is exculpatory and constitutionally required to be made available to the defense under Brady v. Maryland, 373 U.S. 83 (1963), and that no prosecutor can dodge this responsibility on the alleged grounds that it is privileged “as a product of a social services investigation.” It specifies that the Commonwealth’s Attorney had a duty to listen personally to the audio recording of this victim interview to determine for himself whether it contained exculpatory material, and he could not simply rely on the investigator’s notes about the recording to stand up and represent to the trial court that it contained nothing exculpatory as grounds for refusal to disclose it to the defense. The Court went on to hold that the jury is not required to accept the testimony of a qualified expert witness as to the meaning and adequacy of a victim’s statements, non-statements and silent physical actions — which in this case were not wanting to talk about the incident, pacing in the expert’s office, avoiding eye contact, avoiding the subject, and leaving the expert’s office — as proof. There were dissents by Judge Kelsey and an even longer one by Judge Beales. These were lengthy and scholarly dissents, though space considerations preclude summary of them here.
Posted by Richard Crouch on August 02, 2012 in Adoption, Child Abuse and Neglect, Constitutional Law, Criminal Law, Ethics, Malpractice & Sanctions, Evidence, Government Employees, Procedure: Divorce & Other Circuit Court Matters, Procedure: Juvenile Courts | Permalink | Comments (0) | TrackBack (0)
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Virginia's legislature has made "mandatory reporting" laws broader and more rigorous, increased penalties for child sexual assault, and made procedural changes to foster care. It also ensured that religious child welfare agencies do not have to place children with parents who offend the agency's religious or moral beliefs. Here are the legislature's official summaries of the bills enacted this session, with links to the complete texts and legislative histories.
HB 3 Child abuse or neglect; athletic coaches, etc. of private sports teams required to report to DSS. Requirement that certain injuries to children be reported. Adds athletic coaches, directors, or other persons aged 18 years or older employed by or volunteering with private sports organizations or teams and administrators or employees aged 18 years or older of public or private day camps, youth centers, and youth recreation programs to the list of persons required to report suspected child abuse or neglect to the Department of Social Services.
HB 74 Child abuse or neglect; reduces mandatory time limit for reporting, requirements of certain persons. Reduces the time limit for reporting suspected child abuse or neglect by mandated reporters from 72 hours to as soon as possible but not longer than 24 hours after having reason to suspect a reportable offense of child abuse or neglect. In addition, the bill provides that in cases in which the initial report of suspected abuse or neglect is made by a mandated reporter to the person in charge of the institution or department in which the mandated reporter works, as provided in current law, the person who receives the report shall notify the person who made the initial report when the suspected child abuse or neglect is reported to the local department or state hotline and of the name of the individual receiving the report and shall forward any communications or information about action taken regarding the report to the person who made the initial report.
HB 970 Child abuse and neglect; mandatory reporting, penalties. Mandatory reporting of suspected child abuse; public and private college employees. Adds any person employed by a public or private institution of higher education other than an attorney who is employed by a public or private institution of higher education who obtains information about suspected abuse or neglect of a child in the course of providing legal representation to a client to the list of individuals required to report suspected abuse or neglect of a child.
SB 239 Child abuse and neglect; mandatory reporting, penalties. Adds individuals associated with or employed by any public organization responsible for the care, custody, or control of children and any person employed by a public or private institution of higher education, other than an attorney employed by a public or private institution of higher education who gains information indicating reason to suspect a child is abused or neglected in the course of providing legal representation to a client, to the list of individuals required to report suspected child abuse or neglect; reduces the time limit for reporting suspected child abuse or neglect by mandated reporters from 72 hours to 24 hours; increases the penalty for a second or subsequent failure to report from not less than $100 nor more than $1,000 to a fine of not less than $1,000; provides that, in cases evidencing acts of rape, sodomy, or object sexual penetration, a person who knowingly and intentionally fails to make the required report shall be guilty of a Class 1 misdemeanor; and provides that no mandatory reporter shall be required to make a report if the person has actual knowledge that the same matter has already been reported to the local department or via the Department's toll-free child abuse and neglect hotline. This bill incorporates SB 265, SB 296, SB 303, and SB 622.
SB 204 Children in foster care; school placement. Clarifies that the agreement as to where a child placed in foster care will attend school does not need to be made before placing the child in foster care.
SB 299 Kinship foster care placements; Commissioner of Social Services may grant variance from requirement. Provides that the Commissioner of Social Services may grant a variance from requirements governing approval of foster care placements and may approve an arrangement for kinship foster care or a kinship foster care provider when he determines (i) the requirement would impose a hardship on the kinship foster care provider, and (ii) the variance will not adversely affect the safety and well-being of the child. The bill also provides that a local board of social services or child-placing agency may approve an application for approval as an arrangement for kinship care or a kinship foster care provider when the applicant has been convicted of a felony related to the possession of drugs other than felony offenses related to possession with the intent to distribute drugs, a misdemeanor conviction for arson, or an equivalent offense in anther state, provided 10 years have elapsed since the date of the conviction and the local board or child-placing agency makes a specific finding that the placement would not endanger the safety or well-being of the child.
HB 897 / SB 363 Virginia Child Protection Accountability System; reporting of certain information by VCSC, etc. Requires the Virginia Criminal Sentencing Commission to report information about sentences imposed in cases involving certain criminal violations and requires the Office of the Executive Secretary of the Supreme Court of Virginia to report information from the Juvenile and Domestic Relations District Courts' Case Management System on removal orders, protective orders, and protective orders alleging family abuse to the Virginia Child Protection Accountability System. This bill is identical to SB 363.
SB 349 Child-placing agency; shall not be required to participate in placement of child for foster care.; conscience clause. Provides that, to the extent allowed by federal law, no private child-placing agency shall be required to perform, assist, counsel, recommend, consent to, refer, or participate in any placement of a child for foster care or adoption when the proposed placement would violate the agency's written religious or moral convictions or policies. In addition, the bill provides that (i) the Commissioner of Social Services shall not deny an application for an initial license or renewal of a license, nor revoke a license, of any private child-placing agency and (ii) no state or local government entity shall deny a private child-placing agency any grant, contract, or participation in a government program because of the agency's objection to performing, assisting, counseling, recommending, consenting to, referring, or participating in a placement that violates the agency's written religious or moral convictions or policies. The bill provides that the refusal of a private child-placing agency to perform, assist, counsel, recommend, consent to, refer, or participate in a placement that violates its written moral or religious convictions or policies shall not form the basis of any claim for damages. This bill is identical to HB 189.
HB 973 Sex crimes; penalties for offender who is 18 or older for rape, etc. of child under age 13. Imposes a mandatory minimum life sentence for rape, forcible sodomy, or object sexual penetration of a child under the age of 13 when it is alleged in the indictment that the offender was 18 years of age or older at the time of the offense. This bill is identical to SB 436.
HB 971 Barrier crimes; adds extortion and felony violations of protective orders to statute. Adds the following crimes to various barrier crimes statutes: abduction, extortion, and felony violations of protective orders. People who have been convicted of or are the subject of pending charges of one of those crimes will not be able to work in a licensed nursing home, home care organization, or hospice and cannot work, volunteer, or provide services on a regular basis at a children's residential facility that is regulated or operated by the Department of Behavioral Health and Developmental Services, certain structured residential programs for juveniles, or children's residential facilities regulated or operated by the Department of Social Services, Education, or Military Affairs. Persons convicted of such crimes cannot be approved by a child-placing agency as adoptive or foster parents and cannot be adult foster care home providers or providers of home-based adult services. In addition, they cannot work at certain schools, assisted living facilities, adult day care centers, child welfare agencies, or family day homes.
APPEALS – FRIVOLOUS – FEE AWARD. A trial judge’s reduction of a father’s visitation after he injured, in anger, one of his four children was obviously so reasonable that appealing it was frivolous, the Court of Appeals held in Craven v. Williamson, unpublished, 26 VLW 934 (1/10/12). The father was obstreperous in his reaction at the trial level to the judge’s rulings, and the judge was not required to elaborate in detail about the reasoning of his decision, so long as the record shows that the father’s arguments were considered. Since the trial court “painstakingly” addressed each factor, and its ruling was quite clear, the Court awarded the mother her appellate fees and remanded for determination of the amount.
PARENTAL RIGHTS TERMINATION – ABUSE AND NEGLECT – PRIOR REMOVAL AS ELEMENT – DRUG USE ENDANGERING CHILDREN – ATTEMPTED COVER-UP OF ABUSE. The mother in the Farrell v. Warren County DSS case had a separate appeal, and the charges and some issues did in fact differ. Mother’s termination was based on a history of drug abuse and a prior removal of the children from the parental home. While the mother certainly neglected too, the finding in the father’s case, that the father abused and neglected, was based on the twins being placed in danger of death, disfigurement or impairment of bodily or mental functions by their parents. The abuse and neglect of the other child, who was found to have been subjected to major blunt force trauma in father’s case, supported, along with the previous removal, the termination as to the twins. The Court of Appeals says it was proper. It could not be reasonably disputed that the mother’s drug use created the unsafe environment for all three kids that had led to the original removal, and it had never been corrected after that. The mother also neglected the single child’s medical needs and created an unsafe environment for all three in that she had grossly ignored the pediatrician’s expression of concern about the malnutrition and weight loss of the single child, and only brought him back to the doctor when the abuse incident, which caused the child to be hospitalized for a week, dictated it. Mother also hid the fact, though she certainly was aware of it, that the child abused by the father incurred intentional physical injury by him. She concealed information from that child’s doctors at the hospital, declaring falsely that she did not know how he had sustained his brain injuries, and that she had never hit or shaken him and could not believe that the father could have done it. This is all sufficient under §16.1-228(1), in the opinion of the trial court, the Court of Appeals, and prior decisions of the Court of Appeals. Concurring, Judge Petty differs only in that he does not think the majority needed to be as voluminous or as careful as they were.
CHILD ABUSE/NEGLECT – CRIMINAL CHARGES – ELIGIBLE DEFENDANTS. Can a person whose only relationship to the child is “mother’s boy friend” (live-in) be prosecuted as a “person responsible” for a child who suffers neglect or abuse or both while in his care? Well he certainly can be if he is the adult whose intentional blows broke the small child’s leg. And that’s true even if the child’s actual parent was present at the time of the injury, the Court of Appeals held in Carrington v. Commonwealth, ___ Va. App. ___, ___ S.E.2d __, 26 VLW 1080 (2/14/12). This man was responsible for the child when the child “was injured,” and he had been acting in the father role by helping to feed and bathe the child and get the child to sleep at night. In fact, he had been trying to give the child a bottle when he ended up hitting the infant. Nothing in this criminal statute says a defendant who had joint responsibility for a child can’t be guilty of criminal child neglect.
EVIDENCE – SELF-SERVING VIDEO OF PARENT-CHILD INTERACTION – DEFENSE AGAINST ABUSE ALLEGATIONS – FEE AWARDS AGAINST ABUSE-ALLEGING PARENT. The Court of Appeals rulings in the appeal of a Fairfax custody case would all be fairly interesting and instructive if it were not for the many Rule 5A:18 rulings in the disposition of this appeal. However, a couple of the remaining appellate rulings are worth summarizing for readers. This unpublished case, Jaouni v. Salah, 26 VLW 988 (1/24/12), turned upon denial of a protective order to the mother against her divorced husband, who had visitation rights. The mother had gone to the juvenile court for a protective order alleging that the father physically abused the 8-year-old daughter during visitation, beating her and touching her private parts, which he vehemently denied. And although there had been evaluations by a licensed clinical psychologist of both parents in a separate case, and the trial court allowed this psychologist testimony on the abuse issue, even though the witness was never qualified in this case as an expert. The psychologist testified that the daughter “overly identified with the mother and took responsibility for her happiness.” At the end of the trial in Circuit Court, the judge denied the protective order, ordered the mother to pay $14,000 of father’s attorney’s fees, and denied reconsideration. The Court states that the mother’s objection to the non-expert-qualified psychiatrist’s testimony came too late since it was near the end of the testimony. Moreover, the trial court did not abuse its discretion, it was held, in admitting it. Apparently, the mother’s objection to the psychologist testifying on the daughter’s credibility was overruled, and the appellate court does not interfere with that. The denial of the protective order was well within the trial judge’s discretion, and it certainly appeared that the mother failed to meet her burden of proving the alleged abuse. As for admitting the father’s prepared-for-litigation video tape, it was within the judge’s discretion, as it was relevant and admissible. As for its being self-serving, etc., is concerned, that was harmless since the court well knew that it had been prepared for litigation. The trial court had expressed concern over the mother’s “posturing the daughter for litigation,” and the fee award under §16.1-279.1(E) was not an abuse of discretion. However, the Court of Appeals did remand for an evaluation of the mother’s ability to pay fees, as required by §16.1-278.19.
PARENTAL RIGHTS TERMINATION – EVIDENCE — CONSTITUTIONAL CHALLENGE – STATUTES UPHELD – PRIOR LIMITING CONSTRUCTIONS – TERMINATION FOR CHILD ABUSE/NEGLECT – BLOWS TO HEAD – PEDIATRICIAN’S TESTIMONY ON ULTIMATE ISSUE. The Court of Appeals goes over some ground that it and the Supreme Court have already covered, in order to reject some constitutional challenges by an accused father. While the father argued that termination requires, under Santosky v. Kramer, 455 U.S. 745 (1982), proof of each supporting allegation by clear and convincing evidence, the Court of Appeals says that despite the arguably sub-constitutional wording of Virginia Code §16.2-283(E), this father was accorded the constitutional evidentiary standard, which applies to both termination itself and abuse/neglect findings, because under Virginia case law terminations can’t be based solely upon prior abuse or neglect findings, and there’s a requirement that courts find the abuse or neglect was bad enough to present a substantial threat to the child’s “life, health or development.” Code Section 16.1-283(B)(1) requires that that finding be made upon clear and convincing evidence. Section 16.1-283(A) does require separate hearings on abuse allegations and termination remedies, in a way that will not allow them to be confused. The court in this case simply considered prior administrative findings and did not consider them dispositive. Though the father argued that the Court was also constitutionally required to find that maintenance of any relationship between him and the child would be a detriment to the child, the Court of Appeals regards that standard as satisfied because §16.1-283(B) does require that the parent be found unlikely to substantially remedy or eliminate the conditions that led to the abuse or neglect in a reasonable time. Since those findings are sufficient to amount to the constitutional standard, the Court of Appeals says, the father had no legitimate constitutional complaint. They declined what they characterized as the father’s invitation to add new requirements to the Virginia statute. After affirming “abuse or neglect” of two of the children, and holding that that abuse or neglect posed a substantial threat to their lives, health or development, the Court went on to find intentional infliction of the injuries to another child satisfactorily proved. The child’s pediatrician, who has ministered to him since birth, and was present at the hospital when the child was brought in, testified that the injuries were caused by parental abuse. Code §8.01-401.3 allows an expert witness to testify to the ultimate issue whenever that expert qualifies by knowledge, skill, experience, training or education. Thus the expert’s testimony at the hearing that the injuries were consistent with non-accidental trauma was fine. She found that diffuse bilateral subdural hematomas and bilateral retinal hemorrhages, all without outward signs of physical injury, were quite enough. Farrell v. Warren County DSS, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 933 (1/10/12). (The mother’s appeal in this case is dealt with in a separate opinion and case note.)
PARENTAL RIGHTS TERMINATION – RELATIVES PLACEMENT ACTION — DEFINITION OF RELATIVE. It’s true that the Virginia statutes require that in termination cases once a child is adjudicated “dependent” the court must consider granting custody to the child’s relatives rather than foster care or adoption. However, the definition of “relative” for these purposes does not include the mother’s brother’s girl friend’s parents. And yes, §16.1-283(A) does require consideration of all “reasonable adoptions for placement with immediate relatives” as a requirement of termination, but remote connections are not relatives of the child “as a matter of law.” The statutes used words that have an established common law meaning, and a court can presume that the Legislature intended that established meaning unless the statute clearly suggests otherwise. Under common law a “relative” means somebody related by blood or marriage. It has not been expanded statutorily to add adoptive relationships, but what was proposed here was honoring an even more tenuous connection. Bagley v. City of Richmond DSS, ___ Va. App. ___, ___S.E.2d ___, 38 FLR 1178 (1/31/12).
PARENTAL RIGHTS TERMINATION – OTHER CHILD TOO AS PACKAGE DEAL. The Welfare Department’s nasty but understandable habit of termination of rights as to all the kids because a parent has abused or neglected one is not always acceptable to the courts. And properly so, the Court of Appeals held in Fauquier County DSS v. Ridgeway, 59 Va. App. 185, 717 S.E.2d 811 (12/6/11). A circuit court agreed to terminate a mother’s parental rights as to her older child, but rejected the petition as to the younger one, holding that the statutory standard had not been met. The DSS of course appealed. Of the couple’s four children, the oldest two were the most “special needs,” and all the children had been taken away from the parents and put in foster care. This mother non-complied with her subsequent “service plan goal agreement” in several ways and the evidence showed that the oldest had been sexually abused because he exhibited explicit sexualized behavior. The court granted the termination as to the oldest two children, but denied it as to the younger two, and the DSS appealed as to the third oldest. The Court of Appeals starts its analysis by citing a case saying that the paramount consideration in a termination case is best interests. The DSS of course argued that it wouldn’t be reasonable not to make an inference that if the mother was unable to parent two children she will necessarily end up having the same bad things happening to the younger kids, and therefore she should lose custody of all. The Court of Appeals thought otherwise, as a court must carefully consider individually what the evidence has been as to each child and apply the statutory criteria to each. One of the several things the trial court took note of was that when the mother was granted visitation with her foster cared kids, a lot of her attention had to be devoted to managing the two unruly older boys. It did not find that enough evidence had been shown to analyze the mother’s parenting skills as to the younger two children. It observed that if she had only the younger two, she wouldn’t be as outnumbered and overwhelmed by the management of those, without the ill-behaved older boys making it impossible. The trial judge found nothing to suggest that the mother and maternal grandmother could not properly supervise nor focus attention on the two younger children. The court did not err in so reasoning, the Court of Appeals said. But aha, the DSS countered: the trial court erred by returning custody of the third child to the mother because that would violate an outstanding foster care plan in the form of a JDR court order that the mother had not appealed to circuit. No, the Court of Appeals patiently explained, as clearly stated in a 2005 opinion, an order denying termination and transferring custody back to the mother entirely moots the foster care decision and plan. After all, termination and foster care recommendation approval have very different burdens of proof, and the one for termination is considerably more stringent. And it necessarily includes, the Court of Appeals held, a custody decision.