NATURE OF THE CASE: This family law case involved an appeal after a dismissal of charges in the context of custodial interference.

FACTS: Vakilzaden (D) was charged with one count of conspiracy to commit custodial interference and one count of custodial interference. The charges arose from a criminal complaint that Vakilzaden aided and abetted his nephew (H) in interfering with the custodial rights of the nephew’s wife (W) regarding their child Saba. Vakilzaden moved to dismiss the charges based on the fact that H was a joint custodian. The trial court granted the motion to dismiss based on the Marshak precedent, concluding that the state had not demonstrated that W was the sole custodian of the child at the time of the alleged interference. Under a prior court order, H had only limited supervised visitation based on his risk of flight and past abusive behavior. H later received help from Vakilzaden in distracting H’s wife so that H could take the child from a store mall while Vakilzaden spoke with W. Vakilzaden was charged and the charges were dismissed and this appeal resulted.

ISSUE: Can a joint custodian of a child be liable for child abduction?

RULE OF LAW: Yes. A joint custodian of a child can be liable for child abduction.

HOLDING AND DECISION: Marshak should be overruled. A joint custodian should not be immune from criminal prosecution based solely on his or her status as joint custodian if the state can prove all elements of the custodial interference statute including both knowledge and intent beyond a reasonable doubt. In Marshak, this court was wrong to conclude that a joint custodian could never be liable for custodial interference under any circumstances. When one parent purposefully deprives the other joint custodian of their joint lawful custody of the minor child, a de facto sole custody situation is effectively created. The state asserts that it will be able to prove that Vakilzaden was present during the family court hearings, he was often present during supervised visitation and he assisted H with the purchase of the plane tickets and facilitated the getaway from the mall the day H took the child.

DISPOSITION: Reversed and remanded.

NATURE OF THE CASE: This family law case involved an international child custody dispute.

FACTS: H and W met in the summer of 1990 and began living together in France but never wed. A daughter was born in 1991 and a son in 1995. W testified that H physically abused her while the children were in her arms. She testified that H had twisted an electrical cord around her neck and threatened to kill her.

W left the home and went to live in a battered women’s shelter but later returned to H. The cycle repeated itself several times. Eventually W took the children from France to the United States. W concedes that she wrongfully removed the children from France and forged H’s signature to obtain passports for the children. W contends that she did this to protect the children from a physically abusive environment. H denies that he has abused the children.

H sought a court order in France to order the children’s return to France under the Hague Convention. The court held an immediate evidentiary hearing under the Hague Convention and it was determined that in fact H was abusive and hit the children. The older child testified that both parents beat her but that H did so more than W.

H’s Hague petition was denied on the grounds that the children would face a grave risk if returned to H’s custody and that H would be unable to support the children. H appealed. The French authorities were contacted and assured the U.S court that measures would be taken to assure the children’s safety if returned while a French court determined custody.

ISSUE: Must a court consider protective measures in the foreign country if it is determined that there is a grave risk to a child to be returned to that country under the Hague Convention?

RULE OF LAW: Yes. A court must consider protective measures in the foreign country if it is determined that there is a grave risk to a child to be returned to that country under the Hague Convention.

HOLDING AND DECISION: The Convention requires that any debate on the custody rights issue should take place before the competent authorities in the country of the child’s habitual residence prior to removal. It is therefore important that a court considering an exception under Article 13(b) take into account any ameliorative measures by the parents and authorities that can reduce whatever risk might otherwise be associated with a child’s repatriation.

We are required to trust the court of the home country to issue whatever orders may be necessary to safeguard the children who come before it. Granting H’s petition would not as a legal matter entail turning the children over to his custody. Other arrangements could be made pending the custody adjudication. On remand the district court must consider the protection that can be provided by the French authorities prior to a determination of custody in this matter. We do not disturb the finding that the return of the children to H would pose a grave harm to their safety.

DISPOSITION: Reversed in part and remanded for further consideration.

NATURE OF THE CASE: This opinion relates to two consolidated cases involving a dispute whether prenatal conduct can be used to find child neglect.

FACTS: The mothers in each of the two cases used drugs during pregnancy and both children tested positive for cocaine at birth. Both mothers admitted to the use of cocaine while pregnant and one admitted to smoking marijuana daily. Both were or had been involved in drug rehab programs. Neglect proceedings were instituted against both mothers and the mothers then moved to dismiss the petitions. The mothers claimed that the petitions failed to state causes of action because prenatal conduct could not be used to form the basis of a finding of neglect. The Family Court agreed and dismissed the petitions. Both mothers failed to stay in drug rehabilitation programs and this appeal resulted.

ISSUE: Can a neglect petition be based on prenatal drug use and positive tests for drug toxicology in newborns?

RULE OF LAW: Yes. A neglect petition can be based on prenatal drug use and positive tests for drug toxicology in newborns.

HOLDING AND DECISION: Ordinarily a child will not be found to have been neglected where there has been prenatal drug use unless such use resulted in the parent’s failure to exercise the minimum degree of care which caused the child’s condition to be impaired or to be in imminent danger of becoming impaired. The defendant mothers claim that the petitions fail to establish that they were repeat drug users. However, the positive toxicology for cocaine in a newborn constitutes actual impairment for the purpose of withstanding a motion to dismiss and sufficient acts of mothers have been alleged which would support a finding that they were repeat drug users.

The Family Court’s dismissal of the petitions on the pleadings eliminated the opportunity for a fact finding hearing to present evidence and relevant information on the issue of neglect. The presumption in the relevant state statute eliminates a requirement of specific parental conduct vis a vis the child, and neither actual impairment nor specific risk of impairment need be established. There need be no allegation of continued drug use to maintain the petition for neglect. It was error to dismiss the petitions.

DISPOSITION: Reversed.

NATURE OF THE CASE: This criminal case involved a dispute over the use of expert opinion testimony to aid jurors in a child sexual abuse case.

FACTS: F and M had two daughters together aged eight and six. F and M were never married and F lived in a one room apartment with another woman with whom he became married in 1987. F would pick up the children for weekend visitation.

Approximately two years after the separation, M learned that one child attempted to pull down her sister’s underwear and touch her buttocks. When asked where she had learned of such conduct the child spelled out DAD. M disbelieved the information at first but then sent the children to counseling and reported the incident to the police. Both children reported that they had been the victims of repeated sexual abuse by their father. The trial court accepted testimony from a doctor who testified that both infant witnesses would suffer severe emotional distress if forced to testify before spectators, jurors, and particularly their father in a courtroom setting.

The trial court granted a motion to allow the children to testify on closed circuit television. The children described the sexual conduct in detail and evidence was presented showing that their hymens had been stretched. The same doctor then took the stand and testified about Child Sexual Abuse Accommodation Syndrome (CSAAS) and that both children expressed symptoms of the syndrome. The doctor then stated that in her opinion the children were sexually abused. F’s defense was that the children were coached by M and that there was no opportunity for F to commit the acts at his one room apartment.

F was convicted and appealed and the Appellate Division reversed, holding that it was plain error for the trial court to allow the CSAAS testimony to establish the credibility of the witnesses and to explain secrecy, belated disclosure, and recantation by a child sexual abuse victim. The New Jersey Supreme Court granted cert.

ISSUE: May evidence of CSAAS be submitted to a jury as evidence of guilt?

RULE OF LAW: No. Evidence of CSAAS may not be submitted to a jury as evidence of guilt.

HOLDING AND DECISION: The court held that the evidence of CSAAS was not offered to explain the conflicting behavioral traits in this case either of accommodation or delayed disclosure. The evidence was presented to the jury to prove directly and substantially that sexual abuse had occurred. The doctor testified that the CSAAS pattern of behavior was found to occur consistently in children who are victims of incest and she outlined Dr. Summit’s five part syndrome; secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction. The doctor then went on to describe symptoms displayed by one child (crying, shaking, rubbing her hand in her eyes, and covering her face) and that they were manifestations of her feeling of helplessness towards the abusive situation and her fears, anxieties and anger which she had to suppress to accommodate the abuse. The court found that the symptoms appeared to be generic post traumatic symptoms rather than the symptoms Dr. Summit had described.

The doctor testified to other symptoms of the children but when asked how one can determine whether a victim is telling the truth about sexual abuse, the doctor proffered her own theory unrelated to CSAAS. When asked if the children had been sexually abused the doctor gave her opinion that they were. At this point we are unclear how the doctor had reached that opinion; whether it was based on the credibility of the witnesses or on her understanding of CSAAS theory. If the latter, the evidence would not be admissible because CSAAS is not relied on in the scientific community to detect abuse. CSAAS can be used to explain traits found in children that have been abused but it cannot be used to establish that the defendant is guilty of abuse.

DISPOSITION: Affirmed.

NATURE OF THE CASE: This case involved an appeal from a finding that a child was an abused child.

FACTS: D is a physician and the mother of four children. She observed her seven year old son throwing food at the dinner table and he refused to stop. The boy was then taken to the bedroom and spanked six times with an imitation leather belt. An anonymous phone call was received that D has struck her child. The matter was investigated and several bruises were noticed on the child’s lower back. The child admitted that he had been hit by his mother and was placed in protective supervision.

The matter proceeded to trial and the trial court found that D had physically injured her child and that her son was an abused child. This was taken up on de novo review. The de novo review affirmed the finding that the child was abused and D appealed.

ISSUE: What must be proven in order to support a finding that a child was physically injured or abused?

RULE OF LAW: To find that a child was physically injured or abused there must be a finding that this was done under circumstances indicating harm or threatened harm to the child’s life, health or welfare.

HOLDING AND DECISION: The fact that this child had bruises and that the presence of those bruises indicated harm or threatened harm to his health or welfare was unsupported by the evidence. D presented substantial evidence that the child was bruised but not harmed. The state failed to present any evidence that the child was harmed or injured. This is surprising in light of the order of reconsideration under the Doe ruling that required harm or threatened harm for a finding of child abuse. The state also failed to present the evidence of the Dr. who examined the child first and stated that he did not believe that there was child abuse. Reasonable corporal punishment is allowable under our law.

DISPOSITION: Reversed.

NATURE OF THE CASE: This lawsuit involved a review of a habeas corpus petition that had been granted by the Ninth Circuit.

FACTS: McGuire (D) and his wife brought their six-month-old daughter to the hospital after she had become bluish in color and was not breathing. A large bruise was found on the child’s chest as well as black and blue marks all around her ears. The child died and the autopsy revealed 17 contusions on the child’s chest, 29 in the abdominal area, a split liver, a split pancreas, a lacerated large intestine, damage to the heart and one of her lungs. There was evidence of rectal tearing and of rib fractures which were approximately seven weeks old and other indications of likely child abuse. The explanation given by McGuire that all of the injuries were the result of a fall from a couch was unconvincing. McGuire then unconvincingly claimed that some Mexicans may have entered the dwelling while he was upstairs.

McGuire was charged with second-degree murder. McGuire’s wife was granted immunity and called to testify. Contrary to her initial statements to the police and statements made by her that were overheard at the hospital, the wife testified that she had beaten the child. McGuire was convicted and the conviction was affirmed. McGuire then filed for habeas corpus relief and the Ninth Circuit eventually reversed, holding that the prior injury evidence was erroneously introduced to establish battered child syndrome, because no evidence linked McGuire to the prior injuries and no claim had been made at trial that the baby had died accidentally. The United States Supreme Court granted cert.

ISSUE: Is federal habeas corpus review available for a state error of law, i.e. the admission of prior evidence to establish battered child syndrome, when there was no evidence linking McGuire to the prior injuries?

RULE OF LAW: No. Federal habeas corpus review is not available for a state error of law, i.e. the admission of prior evidence to establish battered child syndrome, when there was no evidence linking McGuire to the prior injuries.

HOLDING AND DECISION (Rehnquist): A federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States. The evidence admitted of prior abuse was probative because the prosecution was required to show that the killing was intentional. The evidence at issue showed that the killing was not accidental. Although the evidence was not linked to McGuire, it showed that the death of the child was not accidental and therefore was admissible and probative on those issues.

Nothing in the Due Process Clause of the Fourteenth Amendment requires the State to refrain from introducing relevant evidence simply because the defense chooses not to contest the point. McGuire need not have raised the defense of accidental death at trial.

McGuire argues that the instruction given by the trial court on this issue violated due process because it left the jury with the mistaken impression that it could base its finding of guilt on the simple fact that he had previously harmed the child. Even though the instruction was a deviation from CALJIC, that is not a basis for habeas relief. The question is whether that instruction so inflected the entire trial that the resulting conviction violates due process.

We find that the use of the evidence of prior offenses permitted by this instruction was parallel to the familiar use of evidence of prior acts for the purpose of showing intent, identity, motive, or plan. The trial court also guarded against misuse by specifically advising the jury that the prior injury evidence if believed may not be considered to prove that McGuire was a person of bad character or that he had a disposition to commit crimes. Thus we reject that this instruction should be viewed as a propensity instruction.

DISPOSITION: Reversed.

CONCURRING AND DISSENTING (O’Connor): The evidence of battered child syndrome was relevant because it was probative of causation and intent. However, I think there is reasonable likelihood that the jury misapplied the prior act instruction. The court even pointed out that the proof of the battered child syndrome showed that either McGuire or his wife were the two possible perpetrators.