Notes on recent applellate cases
May 3, 1995
Richard E. Crouch
STATUTORY RAPE OR CHILD SEX ABUSE. Conviction of having sexual
relations with a person of the opposite sex under 13 years of age
still requires proof that she is not the defendant's wife, and a
conviction is reversed by the Court of Appeals on that ground in the
unpublished opinion in Smith v. Commonwealth, 9 VLW 1230 (3/28/95).
Notes on recent Appellate Cases
3/1/95
Richard E. Crouch
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 -- SEXUAL -- EVIDENCE --FRESH COMPLAINT/EXCITED UTTERANCE.
A six-year-old girl's complaint to her aunt was the subject of
admissible hearsay by the latter, even though the complaint was made
the morning after. Despite the lapse of time there were, in context,
other indicia of sponteneity. Walker v. Comm. ____Va App ___,
___SE2d___, 9 VLW 1077 (2/28/95).
Notes on Recent Appellate Cases
Sept. 1994
PARENTAL RIGHTS TERMINATION. Natural blood relationships received
still more encouragement in the usually-hopeless area of parental
rights termination, in Sauer v. DSS, ___ Va. App. ___, ___ S.E. 2d
___, 9 VLW 249 (VCA 8/2/94). No termination without first
consideration of the possibility of a placement with the grandparents,
the Court of Appeals held, in a case where the retarded child lives
with the grandparents already.
CHILD ABUSE. It is all right to let an expert testify that a child's
fatal injuries showed "battered child syndrome," the Court of Appeals
held in Price v. Commonwealth, ___ Va. App. ___, ___ S.E. 2d ___, 9
VLW 249 (8/2/94), brushing aside objections about the scientific
validity of "battered child syndrome concepts" and ultimate-issue
objections.
Notes on Recent Appellate Cases
Nov. 1993
PARENTAL RIGHTS TERMINATION -- CONSTITUTIONAL RIGHTS. A child's
constitutional standing to raise the issue of ineffectiveness of
mother's counsel is recognized in Wright v. DSS, ___ Va. App. ___, 433
S.E. 2d 500, 8 VLW 231 (7/27/93). Also covered is the ineffective
assistance provided by the mother's attorney in the termination case
(held not ineffective). The court helpfully reviews the constitutional
basics and requirements of permanent destruction of the parent-child
relationship by the state.
VISITATION -- CHILD SEIZURE BY STATE. It was all right for a trial
court to give a natural mother virtually no visitation when the child
was taken from her custody, since she had abused this 12 year old boy,
and he emphatically refused visitation. Smith v. McPeak, ___ Va. App.
___, ___ S.E. 2d ___, 8 VLW 144 (8/14/93).
--- FMail/386 1.0g
(1:2629/124)
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