Pleasant v. Gibson ( 2022 )

Notice: This opinion is subject to formal revision before publication in the Atlantic
and Maryland Reporters. Users are requested to notify the Clerk of the Court of
any formal errors so that corrections may be made before the bound volumes go
to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-FM-264
DANA PLEASANT, APPELLANT,
V.
JUSTIN GIBSON, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2020-DRB-1723)
(Hon. Darlene M. Soltys, Hon. Deborah J. Israel
& Hon. Rupa Ranga, Trial Judges)
(Submitted November 29, 2022 Decided December 15, 2022)
Shirley Diaz, Nicole M. Cleminshaw, Stephanie McClellan, and Marla
Spindel were on the brief for appellant.
Justin Gibson, pro se.
Before GLICKMAN, EASTERLY, and ALIKHAN, Associate Judges.
ALIKHAN, Associate Judge: Appellant Dana Pleasant challenges the trial
court’s conclusion that he did not have standing to intervene in the custody case
concerning his minor grandchild, S.G., after S.G.’s mother passed away. We vacate
and remand.
2
I. Factual and Procedural Background
S.G. is the child of Passion Pleasant and Justin Gibson. Dana Pleasant is
S.G.’s maternal grandfather. S.G. lived with Ms. Pleasant and her half-siblings until
Ms. Pleasant was tragically murdered. Mr. Pleasant states that immediately after
Ms. Pleasant’s death, he moved into her apartment and assumed care of S.G. Nine
days after Ms. Pleasant’s death, Mr. Pleasant filed an emergency motion to intervene
and an emergency motion for temporary custody in S.G.’s preexisting custody case.
In support of these motions, Mr. Pleasant stated that he was S.G.’s grandfather, that
he had been her primary caregiver since Ms. Pleasant’s death, and that he was
“willing to continue to be [t]here and provide support.”
Unbeknownst to Mr. Pleasant, Mr. Gibson had filed a motion for custody of
S.G. five days before Mr. Pleasant moved to intervene. Also unbeknownst to
Mr. Pleasant, the trial court had scheduled a hearing to address the custody dispute
for the day after Mr. Pleasant filed his motions. Mr. Pleasant did not attend the
hearing. During the proceeding, the court tried to call Mr. Pleasant, but he did not
answer his phone because, as he later explained, he was speaking with prosecutors
about his daughter’s homicide.
The court granted Mr. Gibson sole physical custody of S.G. In the custody
order entered after the hearing, the court denied Mr. Pleasant’s motion to intervene
3
for lack of standing, stating that “[a]s a general rule, relatives of the child beyond
the biological parents, such as grandparents, have no statutory or common law right
to custody of or visitation with a minor child.”
Mr. Pleasant then filed three emergency motions: an amended motion to
intervene, an amended motion for temporary custody, and a motion to vacate the
custody order. In the two amended motions, Mr. Pleasant recounted in more detail
his reasons for intervention. Specifically, he alleged that Mr. Gibson had “rarely”
been involved in S.G.’s life, and when he had been, he had “caused her trauma”; that
Mr. Gibson has a substance-use disorder, four drug-related convictions, and a history
of domestic violence; that Mr. Gibson breeds rodents and insects at his home and
has forced S.G. to clean rodent cages, resulting in injury; and that S.G. had expressed
that she did not want to go into Mr. Gibson’s care. The trial court denied each of
Mr. Pleasant’s emergency motions, again concluding that Mr. Pleasant lacked
standing to intervene in S.G.’s custody case.
Mr. Pleasant moved to vacate that order. The court again denied his motion,
stating once more that he had not established standing to intervene. Specifically, the
court determined that the allegations set out in Mr. Pleasant’s emergency motion and
attached affidavit did “not amount to a sufficiently exceptional circumstance to
establish standing.” The court remarked that “there is a rebuttable presumption that
4
custody with a parent is in a minor child’s best interest,” that Mr. Gibson was
“available and willing to care for [S.G.],” and that it had “not made a finding
rebutting the parental presumption.” Thus, in the court’s view, “no exceptional
circumstance existed such that [Mr. Pleasant] had standing” when he filed his initial
emergency motions. Mr. Pleasant filed a timely appeal.
II. Standard of Review
“Whether appellant[] ha[s] standing is a question of law reviewed de novo;
however, underlying factual determinations are reviewed under the clearly erroneous
standard.” W.H. v. D.W., 78 A.3d 327, 336 (D.C. 2013) (quoting Gaetan v. Weber,
729 A.2d 895, 897 (D.C. 1999)).
III. Discussion
District of Columbia law sets out a three-step process for a third party to obtain
custody of a child. See D.C. Code § 16-831.01(5) (defining “[t]hird party” as “a
person other than the child’s parent or de facto parent”). At the first step, the third
party must establish standing to intervene in the custody proceeding. Id.§ 16-831.02(a)(1); see B.J. v. R.W., 266 A.3d 213, 215, 217 (D.C. 2021). At the
second step, he must rebut the presumption favoring parental custody by clear and
convincing evidence unless there is parental consent to the third party’s custody.
D.C. Code §§ 16-831.06(a)(1), (b), 16-831.05(a); see id. § 16-831.07(a)(1) to (3).
5
And at the third and final step, the court must determine that third-party custody is
in the child’s best interests. Id. § 16-831.06(a)(2); see id. § 16-831.08. The three
steps are distinct and sequential: the step-one standing inquiry presents “a threshold
question of law that must be resolved prior to, and independently of, the merits of
the case,” B.J., 266 A.3d at 215, and the court must find the parental presumption
rebutted at step two before it can consider the best interests of the child at step three,
D.C. Code § 16-831.07(d).
At the first step, Mr. Pleasant sought to establish standing under D.C. Code
§ 16-831.02(a)(1)(C). This subsection provides that “[a] third party may file
a . . . motion to intervene in any existing action involving custody of the child” if
“[t]he third party is living with the child,” as Mr. Pleasant says he was at the time of
his first motion, “and some exceptional circumstance exists such that [third-party
custody] is necessary to prevent harm to the child.” Id. But in concluding that
Mr. Pleasant had not shown exceptional circumstances that warranted intervention,
the trial court skipped ahead to the second step of the analysis, noting that it had “not
made a finding rebutting the parental presumption.” This was error, as the court
improperly injected the parental presumption into the first step of the analysis.
Accordingly, we must vacate the trial court’s order and remand for the court
to reassess whether Mr. Pleasant has standing to intervene. At that first step of the
6
analysis, the court must decide—without considering the presumption in favor of
Mr. Gibson’s custody—whether Mr. Pleasant’s motions set forth “some exceptional
circumstance . . . such that relief . . . is necessary to prevent harm” to S.G. Id.; cf. In
re S.M., 985 A.2d 413, 420 (D.C. 2009) (remanding in a similar situation). Because
D.C. Code § 16-831.02(a)(1)(C) requires the “motion [to] specify in detail why the
relief is necessary to prevent harm to the child,” we believe that the court can conduct
the standing inquiry on the pleadings, taking the motions’ factual allegations as true.
See, e.g., W.H., 78 A.3d at 337 (basing standing on the fact that the movant had
“alleged” the required “personal stake”). 1 Such an approach is both faithful to the
statute’s text and consistent with its legislative history. See Safe and Stable Homes
for Children and Youth Amendment Act of 2007, Report on Bill 17-41 before the
Committee on Public Safety and the Judiciary, Council of the District of Columbia,
at 6 (June 4, 2007) (explaining that “[i]f one of [D.C. Code § 16-831.02(a)(1)’s]
criteria is specifically pleaded in a petition or motion[,] the third party may file for
custody or intervene in an existing action for custody”); id. at 2 (stating the Council’s
intent to grant third-party standing to allow custody claims to be adjudicated on the
merits).
1
A parent who disputes the third party’s basis for intervention may file a
motion to dismiss under D.C. Code § 16-831.02(b)(1). Because Mr. Gibson did not
file such a motion in the trial court, we decline to opine on that provision here.
7
If Mr. Pleasant succeeds in establishing standing to intervene, the court must
then, and only then, consider whether he can rebut the parental presumption by clear
and convincing evidence. D.C. Code § 16-831.06(a)(1), (b); see id. § 16-831.07.
We recognize that this second inquiry may also involve consideration of
“exceptional circumstances.” Id. § 16-831.07(a)(1) to (3) (explaining that the
parental presumption is rebutted if the court finds, by clear and convincing evidence,
“(1) [t]hat the parents have abandoned the child or are unwilling or unable to care
for the child; (2) [t]hat custody with a parent is or would be detrimental to the
physical or emotional well-being of the child; or (3) [t]hat exceptional
circumstances, detailed in writing by the court, support rebuttal of the presumption
favoring parental custody” (emphasis added)). But an assessment of exceptional
circumstances at this juncture is not merely a repeat of the step-one analysis. That
is because, at step two of the inquiry, the court cannot rely on the allegations in the
pleadings alone, but rather must make express findings of fact based on clear and
convincing evidence. Id.; see id. §§ 16-831.06(b), 16-831.05(b) (“If the court grants
custody of the child to a third party over parental objection, the court order shall
include written findings of fact supporting the rebuttal of the parental
presumption.”), 16-831.04(b) (directing that any “order granting relief . . . shall be
in writing and shall recite the findings upon which the order is based”). The two
steps are thus distinct, and neither is superfluous.
8
If the trial court finds that Mr. Pleasant has carried his step-two burden of
rebutting the parental presumption by clear and convincing evidence, the court
should move to the third and final step of the analysis and assess S.G.’s best interests.
Id. § 16-831.07(d); see id. §§ 16-831.08, 16-831.06(a)(2). Here, the court will find
itself on familiar ground, as this is the standard applied in many child-welfare cases.
See, e.g., id. §§ 16-2353(b) (termination of parental rights), 16-2383(d)
(guardianship); In re J.J., 111 A.3d 1038, 1044 (D.C. 2015) (adoption).
IV. Conclusion
For the foregoing reasons, the judgment of the Superior Court is vacated, and
the case is remanded for further proceedings.
So ordered.