INTERNATIONAL CHILD SUPPORT: FORUM NON CONVENIENS

Generally the DC Corporation Counsel will file and prosecute a child support action on behalf of a DC resident and when both the child and the principles are DC residents. However Under 42 U.S. Code ξ 654(4)(A)(ii), the District may bring a child support action on behalf of a non DC resident, a non US national and from a country which has not signed into Uniform Interstate Family Support Act (“UIFSA”) or any other treaty governing terms, that is, a non reciprocating and a non treaty nation. According to the statute, the DC government has the discretion to bring an action against a DC non custodial parent from a non DC, not US national but a custodial parent residing for example in Philippines – a non reciprocating and also a non treaty nation. In such case – the most effective legal argument against the DC courts hearing the matter would be through the legal doctrine of Forum Non-Conveniens. The doctrine as codified in the DC Statute provides: § 13-425 Inconvenient forum When District of Columbia court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss such civil
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Categories: Uncategorized.

COMPETING ADOPTION PETITIONS: RECENT COURT OF APPEALS DECISION

IN RE M.V.H. decided on July 21, 2016, by the Court of Appeals, a relative grandmother adoption petition v. a non relative foster parent adoption petition was legally compared and analyzed with the trial court as well as the appellate review all ruling in favor of the foster parent petition. The case had initiated through a neglect petition against the biological mother who resided in the grandmother’s home (M.V.H.) at time, and alleged and proven neglect of physical injuries to the child (A.H.). The mother had given her consent to the adoption by the grandmother M.V.H., and although the trial court held that weighty consideration was given to the parental choice of fit custodian – the grandmother, M.V.H. was deemed an unfit custodian. The trial court did find the grandmother to be loving, employed, lacked mental health issues and provided a stable home – however, because the child’s injuries had occurred in the grandmother’s home, they remained unexplained and unaccounted for, and the court could not guarantee the safety of the child in the home — overall the grandmother was deemed unfit to adopt. Specifically the Court of Appeals expounded “the record in this case established with respect to M.V.H.
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Categories: Family Law.

CHILD CRUELTY REVERSAL; DOCTRINE OF INHERENT INCREDIBILITY

In DION M. SLATER-EL v. UNITED STATES, decided on July 7, 2016, the DC Court of Appeals reversed a second degree child cruelty case while applying a rather rare and archaic legal doctrine: the doctrine of inherent incredibility. The child cruelty statute specifically provides: A person commits the crime of cruelty to children in the second degree if that person intentionally, knowingly, or recklessly . . . [m]altreats a child or engages in conduct which causes a grave risk of bodily injury to a child[.]‖ D.C. Code § 22-1101 (b)(1). The facts of the case gave rise to the doctrine inherent incredibility as was applied by the Court of Appeals are briefly as follows: The appellant/defendant during a verbal altercation with his wife had grabbed his baby while still strapped to a high chair and during the scuffle had dropped or fallen partially on a couch with the child still in his high chair and under the defendant. The trial court determined that appellant was guilty of attempted second-degree cruelty to children in that the appellant “(1) held the baby, who was strapped in a highchair, in a tight grip; and (2) for many minutes, still very tightly gripping the
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Categories: Criminal Defense and Family Law.

DC DUI/DWI LAWS: LEAVING THE SCENE AFTER COLLIDING

The pertinent DC statute addressing driving a motor vehicle while under the influence also addresses leaving the scene of an accident after colliding because often drinking and driving results in accidents. Thus this blog addresses both of these offenses in detail enumerating the statutory/legal elements for both offenses separately. Specifically, the statute criminalizes damage to property as well as damage to an individual and also a domestic animal. That is, any person operating a vehicle that causes “substantial damage” to another property (vehicle) and leaves without either giving assistance or without leaving his name, place or residence, and identifying information — is guilty of leaving after colliding a scene of an accident (LAC) – and upon first conviction will face: 180 days/$1000 fine, and on the second offense would potentially face up to a year/fines not more than $2500 or both if injury is to a person, if damage is to a property or a domestic animal — then the first offense 30 days/$250.00 and second 90 days/$500 fines. In an event that there is an injury to any individual as a result of the accident, then, the law enforcement and 911 must be called and one cannot leave the
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Categories: Uncategorized.

COURT OF APPEALS REVERSAL: PRIVATE V. PUBLIC: DC UNLAWFUL ENTRY STATUTE

The Court of Appeals in an opinion issued in JACQUELINE FREY v. UNITED STATES, compared and analyzed the legal difference between unlawful entry upon a “private” property versus a “public” property. In reversing the defendant’s conviction for unlawful entry on May 5, 2016 – the Court held that she had entered a public section of the Library of Congress and thus was entitled to a jury trial warranting reversal. The District of Columbia unlawful entry statute makes a legal distinction between entry upon a private v. public property. Specifically, subsection (a) of the code prohibits unlawful entry into “any private dwelling, building, or other property, or part of such dwelling, building, or other property.” [D.C. Code § 22-3302 (a)(1)]. Violations of subsection (a) are punishable by a fine, imprisonment for not more than 180 days, or both. Subsection (b) however prohibits unlawful entry into “any public building, or other property, or part of such building, or other property.” [D.C. Code § 22-3302 (b)]. Violations of subsection (b) are punishable by a fine, imprisonment for not more than six months, or both. Here, the defendant was charged with entry upon a private property, which is punishable by more than 180 days
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Categories: Criminal Defense.

DC CHILD ABUSE AND NEGLECT LAWS

This blog focuses on the DC child and abuse laws and some of the procedural aspect of a court involved case. Generally a child neglect and abuse case commences with reporting of some kind to the CFSA (“Child and Family Services”). There are those who are according to the DC Neglect Statute are mandatory reporters. The school and all those involved and have contact with the child at school setting, doctor’s offices, social workers, hospitals, police officers, etc. Regardless, when a report to hotline has been made, an investigative social worker is assigned to conduct a preliminary investigation. That would involve meeting the reporter in person and discussing some of the specifics, visiting the child at the school setting to investigate child’s environment, and finally to meet with the parents and visits the home. Often times in cases when there is allegation of physical abuse, the social worker may have the child medically screened or even evaluated at the Children’s hospital or other clinics or medical facilities. If the social worker determines that there is enough direct and supporting evidence to support the claim of child neglect and abuse, a court petition is drafted and filed and an initial hearing
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Categories: Family Law.

DC ASSAULT LAWS/PENALTIES

This blog outlines and analyzes the statutory language of the three main DC assault provisions: simple assault, aggravated assault and assault on a police officer. The simple assault statute includes both elements and penalties for assault and stalking as they are consolidated under the same statutory language specifically that a person commits a misdemeanor assault punishable by not more than 180 days imprisonment and/or a $1000.00 fine — if he/she unlawfully assaults or threatens another in a menacing fashion. The felony assault which raises the penalties to 3 years and/or $3000.00 in fines has all the elements of the simple assault but requires a second prong of: intentionally knowingly or recklessly causing “significant bodily injury.” The term significant bodily injury means an injury that would need an immediate medical attention. Aggravated assault is generally defined as causing “serious bodily injury” by any means to another person knowingly and purposely. Specifically, engaging in a conduct “manifesting extreme indifference to human life” – which both creates a grave risk of serious injury and also causes serious bodily injury. Aggravated assault carries penalties of: 10 years and/or $10,000.00 in fines. The attempted aggravated assault carries half the penalties. Assault on a police officer
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Categories: Criminal Defense.

RECENT COURT OF APPEALS DECISION: CONSTRUCTIVE POSSESSION REVERSAL

In VINCENT PANNELL v. UNITED STATES, decided on April 7, 2016, the Court of Appeals reversed a Possession of Control Substance (PCP) conviction and remanded for the conviction to be vacated as there was insufficient evidence to convict based on the theory of constructive possession. Here, the undercover Officer had pulled over a vehicle with two front seat occupants. Two PCP cigarettes were found in the middle console closer to the passenger side seat than the driver. Assuming based on that proximity that the cigarettes belonged to Pannell, he was arrested and charged while the driver without being searched was given a traffic ticket for going through a stop-sign. In order to prove constructive possession the government must show by clear and convincing evidence that the appellant knew that the PCP cigarettes were present in the car and that he had both the ability as well as the intent to exercise dominion or control over it. Constructive possession can be proven by direct or circumstantial evidence. The appellant argued on appeal that there is no dispute that Pannell knew the cigarettes were there – however there is no evidence to suggest or hint in anyway that he intended to use
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Categories: Criminal Defense.

DC DIVORCE LAWS: HIGHLIGHTS

A divorce decree cannot be granted in the District unless the following separation criteria have been met: Parties have “mutually and voluntarily” lived separate and apart from one another without cohabitation for a period of six months prior to commencing of an action or that; parties have lived separate and apart without cohabitation for a period of one year prior to commencing the action. In the second category most likely the separation has been court ordered as it would not have been “mutually and voluntary.” Thus the statute requires a legal separation before issuing a divorce decree and the legal separation is either “mutual and voluntary” for a period of 6 months or for one year if not mutual and voluntary. Parties may reside in the same household/under the same roof and deemed to be legally separated as long as they have pursued separate lives, not shared the same bed or board. Thus the statutory 6 months or the one year period legally required may be satisfied when parties reside in the same household. This arrangement however is neither practical nor advisable in a contested divorce action. It creates more problems than offer solutions and most likely take an undue
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Categories: Family Law.

BAIL REFORM ACT CONVICTION REVERSED — RECENT COURT OF APPEALS

The Court of Appeals in STERLING P. EVANS v. UNITED STATES, decided on March 17, 2016, reversed a Bail Reform Act violation conviction and remanded the matter for further consideration by the trial court. Evans was arrested and charged with possession and failed to appear for his hearing because he did not correctly remember or recollect the date of his scheduled court appearance. He believed he was due in court two days after the actual day due in court. Bench warrant was issued he was picked up on BRA charge and conviction subject of this appeal. Specifically, Evans testified and acknowledged that he signed a notice-to-return instructing him to return to court on April 2. He testified thought that he genuinely believed that he was due back in court of the 4th instead. That he had financial issues, was being evicted, and lost the notice but that he remembered the return date to be on the 4th. The BRA Statute in part states “[w]hoever . . . willfully fails to appear before any court or judicial officer as required”. The Court of Appeals held that given Evans testimony it was inconclusive whether his failure to appear was willful. The trial
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Categories: Criminal Defense.