dissenting:
This is not a constitutional error case. Nor is it a jury case in which .the trial court erroneously instructed the jury. Rather, this case involves some instances where the trial court erroneously applied principles governing exceptions to the hearsay rule. Therefore, the- ultimate question is whether the trial court’s error was harmless. We articulated the proper standard of review for this case in Robinson v. United States, 628 A.2d 1234 (D.C. 1993):
[T]he appropriate test for reversible error is the standard set forth in Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). See White v. United States, 613 A.2d 869, 874 (1992). Thus, we must decide whether we can “ ‘say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed' by the error.’ ” Id. (quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239). Under this standard “we must find it ‘highly probable that [that] error did not contribute to the verdict.’ ” Clark v. United States, 593 A.2d 186, 192 (D.C.1991) (quoting United States v. Tussa, 816 F.2d 58, 67 (2d Cir.1987)).
Id. at 1243; see also United States v. Corey, 566 F.2d 429, 432 (2d Cir.1977) (“A nonconstitutional error, as in the case of erroneous admission of similar act evidence, is harmless if it is ‘highly probable’ that the error did not contribute to the verdict.”) (citations omitted). On the record before us and given the issue in this case, I cannot agree with my colleagues’ determination that: although,“it may be that an impartial trier of fact could reasonably have found for the District if the hearsay had been excluded!,] ... where, as in the District’s case here, the inadmissible predominated over the admissible, the judgment cannot stand.” I am not’ persuaded that “the inadmissible [evidence] predominated over the admissible,” and I am convinced that “an impartial trier of fact [could] reasonably have found for the District if the hearsay had been excluded.” Furthermore, I can “say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,” and that “it [is] ‘highly probable that [the error] did not contribute to the [trial court’s judgment].” Robinson, supra, 623 A.2d at 1243.
In essence, the central issue in this case was whether the domestic violence in the home of Ty.B. And Ti.B. prevented them from receiving “proper parental ... care or control necessary for [their] ... mental, or emotional health ...” and thus rendered them neglected within the meaning of D.C.Code § 16-2301 (9)(B). Indeed, the government’s theory of the case, stated during opening argument, was that the “children were neglected by having been severely emotionally abused in the home where they were subjected to ongoing constant ... domestic violence since the ... date they were born.... ” The record reveals substantial nonhearsay evidence to support the government’s theory of the case.
I begin with the context under which this neglect proceeding unfolded, commencing in March 2000 when the District *1269government filed a neglect petition pertaining to Ti.B and Ty.B., then six-year-old twins. Y.B., the children’s biological mother and T.B., their biological father who was not married to Y.B., had lived together during much of the children’s existence, but they had a very stormy relationship marked by violent confrontations requiring, at times, the presence of the police. In August 1999, Y.B. disappeared and eventually was presumed dead.
At the time of the hearing on the neglect petition, an investigation into Y.B.’s disappearance was in progress. T.B., a party to the neglect proceeding, was a suspect in Y.B.’s disappearance, and had been ordered by law enforcement authorities to appear to give blood. Consequently, tension existed between the criminal investigation and the neglect proceeding because T.B.’s constitutional criminal procedural rights had to be safeguarded while the trial court attempted to hear and consider evidence in the neglect proceeding relating to the welfare of Ti.B. and Ty.B. In fact, the neglect proceeding was interrupted because of an interlocutory appeal filed in this court concerning T.B.’s right to criminal counsel, in addition to neglect counsel. This court held “that the trial court abused its discretion in excluding [criminal counsel for T.B.] from the [neglect] courtroom, and in prohibiting T.B. and his [neglect counsel] from conferring with [criminal counsel] about the neglect proceeding.” In re TiB, Ty.B., 762 A.2d 20, 33 (D.C.2000). Even when the neglect case resumed following resolution of the interlocutory appeal, the tension continued between T.B.’s Fifth Amendment right to invoke the privilege against self-incrimination and the prosecution of the government’s case in the neglect proceeding.
In addition to questions governing T.B.’s assertion of his constitutional privilege against self-incrimination, the trial judge had to handle numerous hearsay objections during the course of the proceedings. The court sustained some of those objections and overruled others. As the majority points out, some of the overruled objections on hearsay grounds should have been sustained,1 but that fact alone does not require reversal and remand of this case.
T.B. mainly argues that “[t]here was no direct evidence that T.B. initiated the arguments and/or altercations between he [sic] and Y.B., the children’s mother. The only evidence presented regarding the alleged altercations was hearsay.” In addition, he maintains that “[t]here is no evidence that T.B. neglected or abused the children in any of the myriad of usual forms of conduct familiar in these types of cases, physical abuse, verbal abuse, failure to provide for needs, etc.” He also challenges the expert’s testimony.
My reading of the record shows substantial non-hearsay testimony which the trial court credited and reasonable inferences to support the government’s case. After receiving a call around 3 a.m. in January or February 1995, from Y.B., J.H.-P., one of her sisters, went to her Y.B.’s house to pick up Ti.B. and Ty.B. Y.B. was “[di]shev-eled and ... injured.” Bruises were “on her arm.” She was in a wheelchair because of an ankle injury “or something.” J. H-P. noticed “several articles of furniture broken.” “[T]hings were tossed around” in the upstairs bedroom. T.B. was present. Again, in late 1995, or early 1996, J.H-P. received a call from Y.B. When she arrived, the police were present and in the process of removing both T.B. *1270and Y.B. from their home. Y.B. was “in an agitated state, ... upset _” “The house was a mess, ... things were thrown around, knocked over.” And, in 1998 in the “late evening,” after receiving a call from Y.B. who was at their mother’s house, J.H-P. went to her mother’s home where she saw Y.B. Y.B.’s “braids [had been] pulled out, she had a, a bald spot on her head where the braids had been pulled out.”
N.H., another of Y.B.’s sisters, testified that while Y.B. was pregnant with the twins, she went to the hospital because Y.B. was there. Y.B. “was badly shaken up, had been crying, scared.” Around July 1999, Y.B. ran into N.H.’s home with the twins; at the time T.B. was under an order to stay away from Y.B. Y.B. was “very upset and nervous.” The children acted “scared” and “ran in and stood behind their mom.” T.B. “came in” and N.H. asked, “what’s going on....” T.B. replied: “[S]he keeps messing with me, I’m gonna hurt her ....” T.B. was “[y]ell-ing, yelling, just angry.” He also told Y.B., “I want you to drop the status ... on the child support and you’re gonna move out the house. If I can’t live in it, can’t nobody live in it.” N.H.’s son asked T.B. to leave, and eventually he exited N.H.’s home.
Yet another of Y.B.’s sisters, S.G. testified that in December 1997, around 7:00 or 8:00 p.m., she was standing outside her mother’s home with her mother and Y.B. when T.B. appeared. T.B. was angry, spoke loudly and was arguing with Y.B. The women asked T.B. to leave but “he proceeded to come forward toward [them].” S.G. had a car club, used to secure the steering wheel, in her hand. “As [T.B.] started coming closer to [the women], [S.G.] showed him the club and told him, just leave.” T.B. kept advancing and took a piece of the club from S.G.’s hands. S.G.’s mother went to call the police. T.B. “proceeded to leave [b]ut, before he left ... [, he] threw that piece of the club and it went into [the] windshield wiper [of Y.B.’s car] .... It broke through the glass and it sort of just stayed inside the glass.” Y.B. and S.G. “both were standing beside the car.” During the episode, T.B. used “|l]ots of profanity and at one time ..., he threatened [Y.B.]. He said, I’m going to kick your ... ass .... [S]top fing with me.”
A fourth sister, A.F., gave testimony during the neglect proceeding. Accompanied by her husband and five children, A.F. went to Adventure World with Y.B., T.B. and the twins. There, A.F. watched while T.B. “got loud” and “grabbed [Y.B.’s] arm.” He complained that she was not spending time with him at Adventure World. “[H]e started shoving her and shoving her,” and he was “pulling her and shoving her.” T.B. was “angry.” Soon, T.B. “got in his car and just left ... the children and [Y.B.] in the park.”
Dr. X, a child clinical psychologist, testified in behalf of the government. Beginning in the late 1980s, she had completed “[q]uite a bit of research on the impact of witnessing violence on young children, on pre-school age and elementary school children,” from age five through the adolescent years. Her studies, which were published in such journals as the Journal of the National Medical Association and the Journal of Community Psychology, and in a book published by the American Psychological Association, included an examination of “children who witness trauma at home.” Her general focus was the impact of such trauma on these children’s “social and emotional development both in the short-term and the long-term.” She estimated at the time of trial that she had studied “about 3,000” children, mainly in the District of Columbia. She had pre*1271sented her findings at professional conferences both nationally and internationally.
Her studies found that for children, “witnessing violence ... can be as detrimental as actually being a victim [of] physical violence ...,” that “witnessing someone else beaten, for instance a parent, ... is as psychologically damaging and can produce the same kind of mental health disorders ... as if that child had actually been the victim of physical violence.” Children who witness violence in the home also may suffer from clinical depression and post-traumatic stress disorder. And, “the earlier the trauma is witnessed the more deleterious [is] the effect on the brain .... ”
According to Dr. X, Ti.B. and Ty.B. have been exposed to “multiple stressors,” including domestic violence, a missing mother, and a mother presumed to be dead. Both children were “impacted by the stress and anxiety around violence in the home.” The male twin “has real clear signs of post-traumatic stress disorder ... in terms of the nightmares that he experiences.” Besides nightmares, he has “difficulty focusing and restlessness, pacing.” In addition, he “has difficulty with anxiety” and “a speech impediment” which is “an anxiety reaction.” Anxiety disorders cannot be cured quickly; some “fight these kind of anxiety disorders for years.” Post traumatic syndrome disorder is associated with a “real chemical imbalance” that affects the brain. The male twin “particularly [is] in a very precarious situation” and reflects emotions of “anger and sadness” with the same “affect” or “emotional expression.” Dr. X noted that “already, there are some concerns about the [male twin’s] behavior in school in terms of hitting girls or fighting girls,” and also children who come from a history of domestic violence in the home have difficulty “con-centratfing] on math and arithmetic in school.” The female twin manifested post traumatic syndrome disorder in other ways. She “eomplain[ed] of being sick with no overt illnesses.” In addition, “[s]he has some anxiety, nervousness, she bites her finger nails and she then has crying spells for no apparent reason.”
Dr. X further explained that for children who witness battering, “it’s the unpredictability of the situation that primes [them] for the stress and makes it difficult for them to let go of some of these trauma behaviors.” Moreover, “kids who witness violence live with fear.” This does not mean that they are “terrified 24 hours a day but it’s like living with the sense of fear, unpredictability and anxiety. But most of all, especially for boys, it’s feeling powerless that you can’t do one thing about it.” Instead, they “can go to school and take it out on a little girl.” They have “to do something with that rage and anger.” Dr. X concluded that the twins “have been exposed to violence and they have been damaged socially and psychologically by that.” Dr. X was certain about the damage, asserting that “[t]here’s no question about that.” On cross-examination, Dr. X fielded a number of questions designed to determine whether the twins’ behavior, such as the female twin’s crying spells or the bed wetting by the male twin, could be attributed solely to the death of their grandmother or the loss of their mother rather than to witnessing domestic violence. Dr. X responded in principal part:
Any one of these [behaviors] individually could occur in any day of the week. But it is the length of time they have occurred and it is their occurrence together that makes one look at a syndrom[e] that is an anxiety related syndrom[e]. There are certain constellation of behaviors in children that occur after death. And one of them is potentially bed wet*1272ting because it’s a regressive behavior. But you generally don’t see a constellation of anxiety related disorders that occur after a death. And in [the male twin], it’s pacing around that’s anxiety related. It’s nightmares that’s anxiety related. It’s nervousness, fidgeting that’s anxiety related.
Dr. X added:
[U]sually when youngsters have an anxiety disorder or certainly post-traumatic stress disorder [(“PTSD”)], they have been actually exposed to trauma. Meaning that they have seen or witnessed something that is so different, unusual, frightening, scary, out of the ordinary, not just a stressful event. For instance, a death of a grandmother, usually kids don’t get PTSD from the death of a grandmother or even the death of a parent unless the parent died in a traumatic way. So hearing about a mother’s death, yes children can have a number of negative behaviors, the bed wetting for instance would be a common symptom that you might see after the death of a parent but not a speech impediment. Not those whole series of anxiety related behaviors.
In short, Dr. X emphasized that the twins have “had a lot of stress,” and “very clear signs of trauma.” But the behavioral constellation manifesting the anxiety related syndrome of post traumatic stress disorder in this case is attributable to witnessing domestic violence.
On the bright side, the twins are functioning well now. Dr. X attributed this to “a really supportive family in [the custodial aunt’s] family.” When Dr. X watched the twins interact with that family, they “seemed at ease, they seemed happy.” The twins’ extended family consisting especially of “their cousins and [another] aunt” constituted a source of comfort and “a very healing experience” for the children. In response to a question relating to “children and their relationship with the parent that has been identified as the abusive parent,” Dr. X stated:
[T]he very critical issue here is that a number of professional organizations including the National Council of Juvenile and Family Court Judges have come out with various rulings that are backed up by empirical research, that recommend that one should not give sole custody or joint custody to a known abuser at any point. And this finding has been backed up by a number of the major psychological associations and child organizations.
This position has been taken, in part also, because “[t]he research has found that many men do not really consider domestic violence a crime,” and even some of those who do and who “go to treatment for a little while ..., are back doing it” to the same person or to another. While the twins visited their father every Monday, neither twin “express[ed][a] desire to be in a more permanent situation with the father.”
T.B., the children’s biological father, also testified at the hearing on the neglect petition, on three different days. At the direction of one of his lawyers, he frequently asserted his Fifth Amendment privilege against self-incrimination. He was able to respond to some questions. He maintained that he had never been married and on the first day of his testimony described care relating to schooling and medical needs that he had provided to his children. During cross-examination on the second hearing day he acknowledged that he had appeared in court on a child support matter. On the third day of testimony, the court took judicial notice of all court records pertaining to Y.B. and T.B. These records consisted of civil protection orders, a petition for custody, T.B.’s misdemeanor criminal conviction for domestic assault, *1273and Y.B.’s petition for paternity and support. On the third day of the hearing, T.B. also answered some questions relating to support he had provided to his children. At the time, he had resided with a male Mend in a two bedroom townhouse for approximately one year. He alleged that his children were “kidnaped” by Y.B. and declared that he would not pay a kidnapper. He accused Y.B. of “tearing” the children’s shoes up or “destroy[ing] them.”
T.B.’s sister, L.W., also testified in T.B.’s behalf. Prior to July 1999, she saw T.B. with his children “once, twice, three times a week usually.” She rarely went to T.B.’s home. So she saw T.B. and his children mainly when they paid a one half hour visit to her home. She described T.B. as a “[v]ery attentive, loving father.” She did not see Y.B. “too often.” Sometimes T.B. stayed with L.W. “[b]ecause he had a stay away order from his home,” that is, an order to stay away from Y.B.
Based upon the non-hearsay testimony of J.H.-P., N.H., S.G., and A.F., there was substantial evidence of domestic violence in the presence of the children, both direct and that based upon reasonable inferences. On top of this substantial evidence, the testimony of Dr. X pertaining to the impact witnessing domestic violence could have on children in general, and the impact it had on Ti.B. and Ty.B. in particular was compelling, even without considering what the children told Dr. X about the domestic violence that they witnessed. The trial court credited Dr. X’s testimony. And, the trial court took judicial notice of several civil protection orders, four of which were filed by Y.B. in 1998, 1995, 1996, and 1998, and two of which were lodged by T.B. in 1994 and 1998.
Given this record of compelling, substantial and competent evidence, I am satisfied that the trial court did not commit reversible error by admitting certain hearsay testimony into evidence. I can “say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the [trial court’s] judgment was not substantially swayed by [its] error,” and in my view, “it [is] ‘highly probable that [the] error did not contribute to the verdict.’ ” Robinson, supra, 623 A.2d at 1243 (citations omitted); Corey, 566 F.2d at 432.
. Or, the objections could have been overruled on the basis of proper and applicable exceptions to the hearsay rule.