In re Z.M. ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 20-FS-770
IN RE Z.M.;
DISTRICT OF COLUMBIA, APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(NEG-322-19)
(Hon. Jennifer Di Toro, Associate Judge)
(Hon. Kenia Seoane-Lopez, Magistrate Judge)
(Argued November 2, 2021 Decided April 14, 2022)
Pamela Soncini, Assistant Attorney General, with whom Karl Racine,
Attorney General, Loren L. AliKhan, Solicitor General (at the time of argument),
Caroline S. Van Zile, Principal Deputy Solicitor General (at the time of argument),
and Stacy L. Anderson, Senior Assistant Attorney General, were on the brief, for
appellant.
Madhavan K. Nair for appellee.
Katherine Piggott-Tooke, Guardian ad Litem, with whom Melissa Colangelo,
Guardian ad Litem, was on the brief.
Before GLICKMAN and DEAHL, Associate Judges, and THOMPSON, ∗ Senior
Judge.
∗
Senior Judge Thompson was an Associate Judge of the court at the time of
argument. On October 4, 2021, she was appointed as a Senior Judge but she
continued to serve as an Associate Judge until February 17, 2022. See D.C. Code §
2Opinion for the court by Associate Judge GLICKMAN.
Dissenting opinion by Associate Judge DEAHL at page 23.
GLICKMAN, Associate Judge: The District appeals an order of the Superior
Court reversing a magistrate judge’s adjudication of Z.M. as a neglected child. The
District filed its neglect petition after Z.M.’s mother, C.M., twice left the eighteen-
month-old child at day care and failed to pick him up at the end of the day, without
contacting the day care, being reachable, or having someone else fill in for her, and
without providing a satisfactory reason or excuse. On review, the associate judge
held that the findings of neglect were plainly wrong or without sufficient support in
the evidence presented to and considered by the magistrate judge. We reverse the
associate judge and reinstate the magistrate judge’s determination that Z.M. was a
neglected child within the meaning of D.C. Code § 16-2301 (9)(A)(iv) (2021 Supp.).
I.
C.M. and Z.M. lived with C.M.’s mother, N.M., in the District. When Z.M.
was around eighteen months old, C.M. enrolled him in a day care facility, the Home
Away From Home Child Development Center. He went there for approximately six
weeks. On October 21, 2019, C.M. failed to pick him up from day care before
11-1502 & 1504(b)(3) (2012 Repl.) On February 18, 2022, she began her service as
a Senior Judge. See D.C. Code § 11-1504.
3
closing time. Neither she nor N.M. (the only other person authorized to pick Z.M.
up) answered phone calls from the day care center. At 7:00 p.m., the day care
contacted the Metropolitan Police Department (MPD). The police also tried to
contact C.M. and were unable to do so. Eventually, the police transported Z.M. to
the Child and Family Services Agency (CFSA). Less than two weeks later, on
November 1, 2019, Z.M. again was left at the day care past its closing time and C.M.
was not heard from and could not be reached. A CFSA social worker retrieved Z.M.
from the day care that evening.
After the second incident, the District filed a petition alleging that Z.M. was
a neglected child within the meaning of paragraphs (ii), (iii), and (iv) of D.C. Code
§ 16-2301(9)(A). Paragraph (ii) provides that a child is neglected if the child is
“without proper parental care or control, subsistence, education as required by law,
or other care or control necessary for [the child’s] physical, mental, or emotional
health,” and the deprivation is not due to a parent’s “lack of financial means.”
Paragraph (iii) states that a child is neglected if the “parent, guardian, or custodian
is unable to discharge his or her responsibilities to and for the child because of
incarceration, hospitalization, or other physical or mental incapacity.” 1 Paragraph
1
The magistrate judge concluded that the government did not prove neglect
under paragraph (iii) and that ruling is not challenged on appeal.
4
(iv) contains a narrower definition; it states that a child is a neglected child if the
“parent, guardian, or custodian refuses or is unable to assume the responsibility for
the child’s care, control, or subsistence and the person or institution which is
providing for the child states an intention to discontinue such care.” The District
based its neglect petition primarily on the allegation that C.M. was repeatedly
unwilling or unable to assume the responsibility of caring for Z.M. after his day care
center’s closing time at the end of the day. At trial, the Guardian ad Litem (GAL),
counsel from the Children’s Law Center, supported the District’s petition for a
finding of neglect under both paragraphs (ii) and (iv) (but not paragraph (iii)).
A. The Neglect Trial
At the neglect trial held on February 27, 2020, then-Magistrate Judge Seoane-
Lopez heard testimony from six witnesses — the day care director, two CFSA social
workers, Z.M.’s pediatrician, C.M, and N.M. The District’s witnesses were
Veronica Rudd, director of the Home Away from Home Child Development Center,
and Ashley Jamison, CFSA social worker. The GAL called LaTrina Sheppard,
CFSA social worker, and Dr. Rebecca Carlin, Z.M.’s pediatrician. C.M. called N.M.
and testified on her own behalf.
Veronica Rudd, director of the Home Away From Home Child Development
Center, testified that the day care operated Monday through Friday, from 7:15 a.m.
5
until 5:45 p.m. When asked whether failure to pick up a child by closing time was
a “problem,” Ms. Rudd explained that it was, because “staff goes home and the
building closes.” During the six weeks Z.M. attended the day care, Ms. Rudd
testified, C.M. typically dropped him off each morning and picked him up in the
afternoons between 4:00 and 5:00 p.m. Only C.M. and her mother N.M. were on
the list of persons who were preauthorized to pick the child up, and the day care
would not release a child to someone not on the list absent specific parental consent
for that occasion and an identification check. Ms. Rudd said C.M. did not inform
the day care that anyone else would be picking up Z.M. on October 21, 2019, or
November 1, 2019. On October 21, 2019, when C.M. did not arrive to pick up Z.M.
by 5:45 p.m., Ms. Rudd began calling both C.M. and N.M., but could not reach either
of them despite multiple attempts. At 7:00 p.m., after no one had come for the child,
she called MPD, as required by the day care’s policy, and they transported Z.M. to
CFSA. Ten days later, on November 1, 2019, Z.M. again was left at the day care
past closing time. After unsuccessfully attempting to reach C.M., Ms. Rudd released
Z.M. to CFSA social worker Ashley Jamison, who took him to the agency around
6:20 p.m.
Ms. Jamison testified that she was assigned to the case when the police
brought Z.M. to CFSA on October 21. Later that night, C.M. showed up at the
agency to reclaim Z.M. C.M. told Ms. Jamison that she had arranged for a friend to
6
pick up Z.M. that day because she had to go to her workplace to do something. C.M.
identified the friend only as “Da-Da.” When asked, C.M. could not provide Da-Da’s
last name, address, phone number, or the text messages C.M. claimed to have
exchanged with him about his picking up Z.M. for her. C.M. said she did not confirm
with Da-Da that he had picked up Z.M. She assumed he had done so until she arrived
home at 9:00 p.m. and found that Z.M. was not there. Ms. Jamison observed that
C.M. appeared unconcerned and “seemed to be under the influence.” Ms. Jamison
asked her if she was “on something,” and C.M. admitted to having smoked marijuana
earlier that evening. Ms. Jamison then informed C.M. that to avoid Z.M.’s removal,
there needed to be a safety plan in place for him while CFSA’s investigation of the
situation was ongoing. C.M. agreed to having a maternal cousin, R.N., take interim
custody of Z.M. beginning that night, and that she would have supervised visitation
with Z.M.
On November 1, 2019, Ms. Jamison learned that R.N. had not followed the
agreed-upon safety plan for Z.M. and instead had returned him to C.M. Ms. Jamison
then made several calls to both C.M. and N.M. to check on Z.M. Unable to reach
either of them, she next called Z.M.’s day care. The day care was relieved to hear
from her. It was late in the day, the day care was closing soon, Z.M. was still there,
no one had come for him, and it had been unable to reach C.M. After 6:00 p.m., Ms.
Jamison went to the day care and waited approximately fifteen minutes to see if C.M.
7
would show up. When she did not, Ms. Jamison brought Z.M. back to CFSA for the
second time.
Ultimately, Ms. Jamison testified, because C.M. twice in ten days had failed
to pick Z.M. up from day care or make suitable alternate arrangements, had been
unresponsive to the day care and the agency, and had not exhibited concern for her
child, CFSA determined a removal was in Z.M.’s best interest. On November 4,
2019, the District filed a neglect petition and Z.M. was placed in shelter care pending
its adjudication.
LaTrina Sheppard, a CFSA permanency social worker, testified that during
her first home visit after Z.M.’s removal, C.M. inquired about Z.M. and seemed
relieved to know his foster care placement was in the District. However, when
supervising visits with Z.M. and his family, Ms. Sheppard found it difficult to
observe direct interaction between him and his mother due to the presence of N.M.,
and those positive interactions she did see “required[d] prompting.” For example,
she noticed C.M. “relied on her mom” to ensure Z.M. did not run out of the visit
room when “he continued to open and close the door of the visit room,” and there
was a set of stairs nearby. Ms. Sheppard further testified that C.M. was required to
attend parenting classes, undergo drug screenings, and complete an Addiction
Prevention and Recovery Administration (APRA) assessment, and that while C.M.
8
verbally reported participating in the classes and screenings, Ms. Sheppard did not
receive the corresponding confirmatory documentation. She reported that in this
case, “it has been difficult to get details” from C.M. and that “communication ha[d]
definitely been a barrier.”
Dr. Rebecca Carlin, Z.M.’s pediatrician, testified that Z.M. was small when
he was born and had a serious medical condition that required medication such that
her team was “trying to track his weight very carefully” and was “quite concerned
about medication compliance.” Though Z.M. received the medication during his
early infancy, C.M. stopped giving it to Z.M. when he got older (which the
pediatrician had not instructed her to do). Despite missing scheduled visits, Z.M.
was up-to-date on his vaccinations.
At the time of trial, C.M. was seventeen years old. She testified that she had
arranged for Da-Da to pick up Z.M. from day care on October 21, and for Kyerra,
“this girl” “from school,” to do so on November 1. C.M. explained that she had
missed calls from the day care on October 21 because her phone was off, that she
did not always receive calls unless she was at home, and that she learned that Z.M.
was at CFSA only when she got home on that day. Puzzlingly, C.M. maintained that
Da-Da in fact had picked up Z.M. from the day care on October 21. As for the second
occasion on which she did not come for Z.M., C.M. acknowledged that CFSA had
9
picked him up on November 1. She explained, “The second time, the girl did not
pick him up, she was involved in a lot of thing[s], didn’t even pick her own son up.”
She said she learned that Kyerra had not gotten Z.M. only when she arrived home
that evening, despite the repeated calls from the day care.
N.M. testified that she had met Da-Da. She did not know his last name, but
she said that Da-Da had picked up Z.M. from day care in the past, and that C.M. had
asked him to pick up Z.M. from day care on October 21, 2019. N.M. said she herself
could not receive calls or texts that day because her phone was “in and out” and
“dying” and eventually she had to purchase another one. As for November 1, 2019,
N.M. said that C.M. “had someone pick [Z.M.] up and they didn’t.”
While crediting the other witnesses, the magistrate judge found C.M. not to
be credible and N.M. to be biased in favor of C.M. and only partially credible. The
judge found that, twice within a period of ten days, C.M. had been unwilling or
unable to pick up Z.M. herself or to arrange for someone else to do so, leaving him
on both occasions without an appropriate caregiver after the day care closed. The
judge stated, “Even if the mother did ask a friend to pick up the respondent, she
failed to comply with the requirements of the daycare to communicate the alternative
caregiver and add him or her to the pickup list, and the result was the respondent
being left at the daycare twice in a ten day period, resulting in the need to call MPD
10
and CFSA.” C.M.’s seeming indifference, lack of comprehension, and
unsatisfactory explanations were highly concerning, even baffling. 2 The judge
concluded that the District had proved by a preponderance of the evidence that Z.M.
was a neglected child within the meaning of subsections (9)(A)(ii) and (9)(A) (iv) of
D.C. Code § 16-2301, but not within the meaning of subsection(9)(A)(iii).
B. Motion for Review
Following the magistrate judge’s decision, C.M. filed a motion for review by
an associate judge of the Superior Court. 3 C.M. argued that the evidence was
insufficient to support the findings of neglect under either subsection (9)(A)(ii) or
(9)(A)(iv), because her two failures to pick Z.M. up from day care did not show a
lack of care or concern for the child or an unwillingness or inability to assume
parental responsibility.
2
The magistrate judge stated, “I find the mother’s testimony troubling in
terms of sitting here today, not understanding that there were two incidents where
her child went into CFSA’s custody because she failed to properly plan for someone
to pick up . . . I’m not sure that you make plans for someone who you don’t know
their last name to pick up this child on two different occasions . . . [it] happening
again shortly thereafter, leaves me to believe that she doesn’t really understand the
circumstances that she finds herself in . . . .”
3
See D.C. Code § 11-1732(k); Sup. Ct. Gen. Fam. R. (D)(e)(1)(A).
11
When reviewing a magistrate judge’s judgment after a bench trial, an associate
judge acts in an appellate capacity, applying the same standards this court applies in
reviewing trial court decisions. 4 The reviewing judge may not set aside the judgment
“except for errors of law unless it appears that the judgment is plainly wrong or
without evidence to support it.” 5 The burden is on the District in a child neglect
proceeding to prove by a preponderance of the evidence that a child is neglected
within the meaning of D.C. Code § 16-2301. 6 In considering the sufficiency of the
evidence supporting a magistrate judge’s finding of neglect, the reviewing judge,
like this court, “must view the evidence in the light most favorable to the District
and draw every reasonable inference in the District’s favor.” 7
4
In re Baby Boy C., 630 A.2d 670 (D.C. 1993); Weiner v. Weiner, 605 A.2d
18, 20 (D.C. 1992).
5
D.C. Code §17-305(a) (2012 Repl.); see, e.g., In re A.B., 999 A.2d 36, 44
(D.C. 2010). Accordingly, while questions of law are subject to de novo
consideration on review, the magistrate judge’s credibility assessments and factual
findings must be accepted unless they are clearly erroneous.
6
In re N.P., 882 A.2d 241, 247 (D.C. 2005).
7
In re E.H., 718 A.2d 162, 168-69 (D.C. 1998) (internal quotation marks
omitted).
12
In this case, the reviewing judge held the magistrate judge was “plainly
wrong” in adjudicating Z.M. a neglected child under either subsection (9)(A)(ii) or
subsection (9)(A)(iv) for three reasons:
First, the reviewing judge reasoned, “[t]o evaluate the child’s condition for a
neglect finding under subsection (ii), the trial court’s inquiry must go beyond simply
examining the most recent episode, or a single snapshot, and instead must consider
the entire mosaic in making its determination.” 8 But here, the reviewing judge
found, “[t]he trial court did not consider, and nowhere was it presented with, the
‘entire mosaic’ of the child’s care.” Rather, the magistrate judge found Z.M.
neglected based on only “[t]wo incidents in ten days,” which the reviewing judge
characterized as “the very definition of a ‘snapshot’ rather than a mosaic.” The
government failed, the judge held, to shoulder its “burden to show a broader picture
of neglect.”
Second, the reviewing judge stated, “[e]ven assuming these two instances
were serious enough to constitute neglect under D.C. Code § 16-2301, the record
lacks any detail of the child’s condition as a result,” i.e., “the actual effect these
8
Quoting In re P.B., 54 A.3d 660, 666 (D.C. 2012) (internal quotation marks
and brackets omitted).
13
incidents had on Z.M.” A “neglect finding under D.C. Code § 16-2301(9)(A)(ii),”
the judge reasoned, “is to remedy the effect on the child, not to punish the mother.”
Third, the reviewing judge concluded that the magistrate judge erred by
finding that Z.M. was a neglected child within the meaning of subsection (9)(A)(iv)
without having evidence and making a finding that C.M. herself (as opposed to the
day care center) had stated an intention to discontinue caring for Z.M. Dismissing
the magistrate judge’s finding that “the mother, by failing to pick her child up,
‘demonstrated an unwillingness or inability to provide care,’” the reviewing judge
said “[t]hat may be a logical inference from her actions, but it is not a stated
intention.”
Accordingly, the reviewing judge granted C.M.’s motion for review and
vacated the magistrate judge’s order. Pursuant to D.C. Code § 16-2317(b)(2), the
court dismissed the neglect petition and ordered Z.M. released to live with C.M.
However, the District filed a timely appeal.
II.
As a threshold matter, the GAL argues that this case is now moot because
Z.M. has been returned home, the Superior Court has closed the neglect case, and
(the GAL asserts) it is in Z.M.’s best interests “for there to be no disruption to Z.M.
14
at this time.” 9 We think the case is not moot, however. “A case is moot if the parties
have presented no justiciable controversy to the appellate court,” and “an event that
renders relief impossible or unnecessary also renders that appeal moot.” 10 That is
not the situation here, though, for in its role as parens patriae the District has a
legally cognizable interest in the proper resolution of its neglect petitions, 11 as
neglect adjudications have not only direct but also collateral consequences that serve
to protect the child. 12 We therefore proceed to address the merits of the appeal.
Although the District argues that it proved Z.M. was a neglected child within
the meaning of both subsection (9)(A)(ii) and subsection (9)(A)(iv), we find it
necessary to consider only the latter provision. 13 The material facts are not in
9
Brief of Appellee Guardian Ad Litem at 15 n.9.
10
Thorn v. Walker, 912 A.2d 1192, 1195 (D.C. 2006).
11
See, e.g., In re J.J.Z., 630 A.2d 186, 194 (D.C. 1993) (“In neglect
proceedings, both the court and the Corporation Counsel have a parens patriae role
which requires each to act to assure the best interest of the minor child at every stage
of the proceeding.”).
12
See In re E.R., 649 A.2d 10, 11 (D.C. 1994) (“[W]e hold that, because the
adjudication of neglect has significant potential collateral consequences for the
mother, her appeal is not moot.”).
13
See, e.g., In re K.J., 11 A.3d 273, 278-79 (D.C. 2011) (“As we have
determined the mother neglected K.J. under the standard as set forth in D.C. Code §
16-2301 (9)(A)(iv) we need not reach a discussion relating to D.C. Code § 16-2301(9)(A)(ii).”).
15
dispute, and the question turns first and foremost on the proper construction of
subsection (9)(A)(iv). This is a legal question, as to which our review is de novo. 14
In general, our guiding principle is that “[w]e will give effect to the plain meaning
of a statute when the language is unambiguous and does not produce an absurd
result.” 15 “We also consider statutory context and structure, evident legislative
purpose, and the potential consequences of adopting a given interpretation to ensure
that our interpretation is consistent with legislative intent.” 16 Because “[c]ivil
neglect statutes are designed to enable the state to identify and protect children who
are in need of assistance[,] they are remedial and should be liberally construed.” 17
Subsection (9)(A)(iv) provides that a child is a neglected child if (1) the
“parent, guardian, or custodian refuses or is unable to assume the responsibility for
the child’s care, control, or subsistence,” and (2) “the person or institution which is
providing for the child states an intention to discontinue such care.” Thus, the statute
14
In re Ta.C., 237 A.3d 114, 120 (D.C. 2020).
15
Facebook, Inc. v. Wint, 199 A.3d 625, 628 (D.C. 2019) (internal quotation
marks and citation omitted).
16
Williams v. Kennedy, 211 A.3d 1108, 1110 (D.C. 2019) (quoting Facebook,
199 A.3d at 628).
17
In re O.L., 584 A.2d 1230, 1233 (D.C. 1990); see also, e.g., In re S.G., 581
A.2d 771, 778 (D.C. 1990) (“Neglect statutes authorizing state intervention on a
child’s behalf are remedial, and they should be liberally construed to enable the court
to carry out its obligations as parens patriae.”).
16
“merely requires that the parent [refuse or] be unable to care for the child . . . and
that the caretaker declare the intent to so discontinue.” 18 The specificity of
subsection (9)(A)(iv)’s definition of a neglected child contrasts with the more
general and much broader definition in subsection (9)(A)(ii). Similarly, subsection
(9)(A)(iv) does not require proof of abandonment, which is the basis for a neglect
finding under subsection (9)(A)(i). 19
We do not find the two-part test of this statute to be ambiguous, and we have
no reason to accord it a grudging interpretation. The reviewing judge apparently
misread the second part of the statutory test as requiring a finding that the parent be
found to have stated an intention to discontinue caring for the child. Plainly,
subsection (9)(A)(iv) applies when a person or institution that is caring for the child
in lieu of the parent expresses such an intention, and the parent then refuses or is
unable to assume the responsibility.20 And to the extent the reviewing judge also
18
In re W.T.L., 825 A.2d 892, 894 (D.C. 2002).
19
In pertinent part, D.C. Code § 16-2301(9)(A)(i) defines a “neglected child”
as a child “who has been abandoned . . . by his or her parent, guardian, or custodian.”
20
See In re K.J., 11 A.3d 273, 278 (D.C. 2011) (holding incarcerated mother
neglected child under § 16-2301(9)(A)(iv) when she did not make any arrangements
for child after grandmother’s words and conduct indicated intention to discontinue
care); In re W.T.L., 825 A.2d at 894 (holding mother neglected child where she was
unable to care for him due to homelessness and drug addiction, and caretaker stated
her intention to discontinue caring for the child).
17
understood subsection (9)(A)(iv) to require a showing of an adverse impact on the
child, that too was a misreading of a statute meant to protect children from harm.
There is no such requirement in subsection (9)(A)(iv). It is not inapplicable merely
because CFSA and the MPD provide a safety net for a child who otherwise would
have been in harm’s way.
Relatedly, a concern that the magistrate judge rested the finding of neglect on
discrete conduct constituting a mere “snapshot” is misplaced; subsection (9)(A)(iv)
makes discrete conduct the very basis for such a finding. Our statements that the
court in a neglect case generally should consider “the ‘entire mosaic’ of the child’s
history and experience relevant to the allegations of neglect” 21 take into account
which statutory definition of a neglected child is invoked. As we discuss below, the
magistrate judge fulfilled this obligation in determining that Z.M. was a neglected
child within the meaning of subsection (9)(A)(iv). 22
21
In re Ta.C., 237 A.3d 114, 120 (D.C. 2020) (emphasis added).
22
A broader inquiry into the neglected child’s history and experience may
well be necessary at the dispositional stage of a neglect proceeding. See D.C. Code
§ 16-2320 (2021 Supp.) (providing for a range of dispositional alternatives to be
considered in light of the child’s best interest and stating that “[i]t shall be presumed
that it is generally preferable to leave a child in his or her own home”). No issue is
before us in this appeal regarding the magistrate judge’s dispositional placement of
Z.M. in foster care after he was found to be a neglected child.
18
We do not construe subsection (9)(A)(iv) to require a finding of neglect
whenever the evidence shows that a parent was unable to assume immediate
responsibility for a child whose substitute caregiver stated the intention to
discontinue care, no matter the reason or surrounding circumstances. For example,
it is not enough for the government merely to prove that on a few occasions, a parent
was momentarily unavailable to assume responsibility for a child whose substitute
caregiver was ceasing care. Paragraph (iv) requires more. To establish a prima facie
case of neglect under paragraph (iv), the government must present evidence that a
parent was unable or refused to assume the responsibility of parenting the child —
not simply that the parent was unavailable due to mere tardiness, mistake, or
circumstances beyond the parent’s control (such as getting in an accident or stuck in
traffic on the way to pick up a child). Thus, as both a common sense reading of
paragraph (iv) dictates and the legislative history of the provision confirms, the court
must consider the surrounding circumstances and reasons for the parent’s
unavailability, as well as its duration, persistence, and recurrence. For example,
where the evidence shows there was a reasonable explanation or satisfactory excuse
for an isolated instance of unavailability, such as unforeseen circumstances beyond
an attentive and concerned parent’s control or a good faith mistake by the parent, the
government presumably will be unable to, and will not seek to, establish a prima
facie case of neglect under subsection (9)(A)(iv). A trial court’s consideration of the
19
reasons for a parent’s unwillingness or inability to assume responsibility of a child
when the surrogate caretaker declines to continue shouldering that responsibility
generally fulfills its obligation to consider the “mosaic” relevant to the alleged
neglect.
The Council clearly intended to require such consideration when it amended
the statutory definition of a neglected child in D.C. Law 2-22, the Prevention of
Child Abuse and Neglect Act of 1977, to add what is now subsection (9)(A)(iv).
The same legislation also enacted a companion provision, D.C. Code § 4–
1301.05(e), prescribing police procedures for responding to reports of children “left
alone or without adequate supervision.” 23 The latter statute authorizes the police in
such circumstances to transport the child to CFSA, with the proviso that doing so
“shall not be considered a taking into custody as described in § 16-2309.” 24 As the
Committee report on the legislation explained, “[t]his section allows the Police to
step in and take the child away if necessary for his safety, but not be required to
follow the formal neglect petition procedure” each time they transport an
23
D.C. Code § 4–1301.05(e).
24
Id.20
unsupervised child to CFSA. 25 The Committee report emphasized that, while
neglect petitions should be filed “where parents refuse to cooperate or where it is
essential to protect the welfare of the child,” 26 immediate return of the child to the
family without instituting neglect proceedings was justified in many cases.
Illustratively, “[t]he parent may have been in an accident, or the baby-sitter failed to
arrive as scheduled.” 27
By its plain terms, subsection (9)(A)(iv) applied to the facts found by the
magistrate judge in this case. The day care center was providing for Z.M.’s “care”
within the meaning of the statute. It had stated and informed C.M. of its “intention
to discontinue such care” at the end of each day at closing time. (The day care also
so informed the police and CFSA.) C.M. failed to “assume the responsibility for
[Z.M.’s] care” when she twice failed to pick him up herself from his day care center
before it closed or to make suitable arrangements for another responsible person to
do so. In her unexplained absence following the day care’s discontinuance of care
for the night, the police and CFSA had to step in to take care of Z.M. And as to
25
Council of the District of Columbia, Report of Committee on Human
Resources and Aging on Bill 2-46, at 4 (Mar. 30, 1977) (emphasis added).
26
Id.27
Id.21
whether C.M.’s failures evinced her inability or refusal to fulfill her parental
responsibility, the government presented (and the magistrate judge appropriately
considered) the relevant surrounding circumstances and reasons C.M. offered for her
failure to pick up Z.M.
As the government’s evidence revealed, this was not a benign case in which
the parent had a reasonable and credible excuse for briefly leaving her child alone
and the problem was unlikely to recur. Rather, trial testimony established that on
October 21, the first day C.M. failed to pick up Z.M., she did not answer numerous
calls from the day care center regarding her child and remained unreachable for
hours. The only backup care provider preauthorized to pick up Z.M. from day care,
C.M.’s mother N.M., was likewise unreachable and did not undertake to pick up
Z.M. in C.M.’s stead. (C.M. never claimed she had relied on N.M. to do so.) When
C.M. finally arrived at CFSA after 9:00 p.m. on October 21 to get Z.M., she admitted
she had been smoking marijuana that evening. She did not proffer a reasonable
explanation for her non-appearance and unavailability. C.M. also could not provide
the name or contact information of the friend she said she had asked to pick up her
eighteen-month-old child, and could not substantiate her claim they made such an
arrangement by text messages. Da-Da was not on the day care center’s list of
persons to whom Z.M. could be released, C.M. had not advised the day care that Da-
Da would be coming for Z.M. in her place, and she made no effort to confirm he had
22
successfully collected her child and gotten him safely home. If C.M. really was
relying on Da-Da, which the magistrate judge doubted, the arrangement in itself
bespoke irresponsibility and raised red flags.
Much the same thing happened again just ten days later. After having agreed
with CFSA to implement a safety plan for Z.M. (a plan with which C.M. apparently
did not comply), C.M. again left her child at day care past closing time, again was
unresponsive, again did not make a reasonable alternative arrangement for Z.M. to
be picked up, and again had no satisfactory excuse.
C.M.’s testimony at trial did nothing to alleviate the concerns her behavior
raised. The magistrate judge understandably found it “troubling” that C.M.
professed to believe Da-Da actually had gotten Z.M. from the day care on October
21, did not seem to realize she had failed not once but twice to make proper
arrangements for her child to be picked up, and did not “really understand the
circumstances that she finds herself in.” Significantly, too, the District and GAL
witnesses informed the magistrate judge that cooperation and communication with
C.M. had been difficult and concerns remained about Z.M.’s care.
We hold that the District presented sufficient evidence to support the
magistrate judge’s finding that Z.M. was a neglected child within the meaning of
D.C. Code § 16-2301(9)(A)(iv), and that the magistrate judge did not err or abuse
23
her discretion by failing to consider the relevant context of C.M.’s failure to “assume
the responsibility” for Z.M.’s care when his day care center “state[d] an intention to
discontinue such care.” 28
III.
For the foregoing reasons, we reverse the judgment of the Superior Court and
reinstate the magistrate judge’s finding of neglect.
So ordered.
DEAHL, Associate Judge, dissenting: I respectfully dissent and would affirm
the Superior Court’s judgment that the evidence does not support a finding of
neglect. In reaching its contrary conclusion, the majority adopts a far broader
reading of D.C. Code § 16-2301(9)(A)(iv) than this court has ever endorsed. It is an
interpretation that is both at odds with the statutory text and that introduces profound
uncertainty into this court’s neglect jurisprudence.
A parent does not “refuse[] . . . to assume responsibility for the[ir] child’s
care” by failing to live up to that responsibility on one or two occasions. Rather, to
28
We express no view on the magistrate judge’s determination that Z.M. also
was a neglected child within the meaning of D.C. Code § 16-2301(9)(A)(ii).
24
say somebody refuses to assume a responsibility is to say that they have indicated a
lack of intention to even attempt to perform it going forward. That is no doubt why,
in the forty-five years since its enactment, we have never previously confronted the
question of whether a parent refuses to assume parental responsibility under
(9)(A)(iv). It is invariably an obvious and uncontested point; the parent who refuses
to assume responsibility has no cause to contend otherwise. The statutory phrase
refers to somebody who indicates an intention to desert their child, not an “isolated
instance of unavailability,” as the majority now treats as a presumptive case of
neglect under this provision. Ante at 18.
To avoid the absurd results of that standalone test, the majority next layers a
totality of circumstances test onto (9)(A)(iv), requiring a court to “consider the
surrounding circumstances and reasons for the parent’s unavailability, as well as its
duration, persistence, and recurrence.” Ante at 18. The majority needs this gloss—
which it derives not from the statutory text but from the legislative history of a
different provision in an entirely different Title—only because it first conflates a
moment’s unavailability with a refusal. But the court’s two-step inquiry is contrary
to the plain text of (9)(A)(iv), which the majority in one breath acknowledges
“makes discrete conduct the very basis” for a neglect finding, only to import a
totality of circumstances test in its next breath. Ante at 17. The majority also shifts
the burden to the momentarily absent parent to justify themselves and provide a
25
“reasonable explanation or satisfactory excuse for an isolated instance of
unavailability,” ante at 18, in contravention of our longstanding precedents that it is
the government’s burden to demonstrate neglect.
That brings me to my jurisprudential concern. The totality of circumstances
test that the majority now reads into (9)(A)(iv) already inheres in our robust body of
precedents informing what constitutes a lack of “proper parental care” under
(9)(A)(ii). I see the majority as building an off-ramp from those precedents, and it
leads to an uncharted wilderness. Where the government does not or cannot meet
the standards we have refined over many decades under (9)(A)(ii), it now has a
workaround and can test the bounds of this new and uncertain path, so long as it can
show a moment’s unavailability (as is routinely the case in (9)(A)(ii) cases). I cannot
predict where this new road leads because its bounds are not marked by any
principles or statutory text. I see no justification for starting down it.
I.
A.
Begin with the text. Subsection (9)(A)(iv) includes, within the definition of a
neglected child, one whose “parent, guardian, or custodian refuses or is unable to
assume the responsibility for the child’s care” after another “providing care for the
child states an intention to discontinue such care” (emphases added). The majority
26
has misinterpreted each of the highlighted terms. At the outset, like the magistrate
judge and the government before it, the majority never tells us whether, in its view,
C.M. refused to assume responsibility for Z.M., or instead was unable to do so. By
process of elimination, I can only assume the former. There is no question that C.M.
was able to provide care for Z.M. Nobody contends she suffered from some mental,
physical, or other incapacity that left her unable to perform the task. Our only
precedents interpreting (9)(A)(iv) in the decades since its enactment concerned
whether a parent was “unable” to provide care, and in both cases the parents were
incarcerated when another surrogate caregiver discontinued care. See In re K.J., 11
A.3d 273, 278 (D.C. 2011) (mother was unable to care for child while incarcerated
and did not arrange care for child within thirty days of grandmother discontinuing
care); In re W.T.L., 825 A.2d 892, 893-94 & n.3 (D.C. 2002) (mother was
“repeatedly incarcerated,” and otherwise “homeless,” and “failed even to contact the
caretaker” who had discontinued care). They do not resemble this case.
That leaves “refuses . . . to assume the responsibility for the child’s care,” a
phrase we have never previously interpreted because it is so rarely a bone of
contention. One would ordinarily say as a matter of plain language that a parent who
sincerely expresses a willingness to assume care for their child and is able to do so
has not refused to assume responsibility. They have perforce assumed responsibility
for the care of their child, and whether they adequately carry out their responsibilities
27
is another matter entirely (concerning a different provision of the neglect statute,
(9)(A)(ii), see infra Part II). 1 C.M.’s parenting failures, while no doubt serious and
worthy of investigation, did not amount to a refusal to assume care for Z.M in any
ordinary sense of the phrase.
Yet, I take the majority to hold that C.M. refused to assume responsibility for
Z.M.’s care when she failed to pick Z.M. up by the close of the daycare’s pickup
window on each of two discrete instances. Unlike the statute—which treats a refusal
to assume parental responsibility as neglect, full stop—the majority treats C.M.’s
tardiness only as presumptively neglectful, triggering a burden-shift whereby C.M.
must provide an adequate explanation for her momentary unavailability to avoid a
finding of neglect. Ante at 17-18. In a nutshell, the majority first strips the statutory
phrase of its plain meaning. Then, to save itself from the resulting absurdities of that
initial misstep, it supplants the statutory term with its own atextual totality of
circumstances test for assessing whether the reasons for the parent’s momentary
1
I agree with the majority that “(9)(A)(iv) does not require proof of
abandonment, which is the basis for a neglect finding under subsection (9)(A)(i).”
Ante at 16. Unlike (9)(A)(i), 9(A)(iv) is anticipatory. It permits a finding of neglect
before abandonment occurs, where one caretaker states an intention to discontinue
care (i.e., to abandon) and an alternate potential caretaker cannot or indicates they
will not take on the parenting role. When (9)(A)(iv) is not being invoked in such an
anticipatory way, then (9)(A)(i) provides the more relevant framework into actual
abandonment.
28
absence are adequate. And while the majority describes those two steps as going to
a mere “prima facie” case of neglect under (9)(A)(iv), it never tells us what more is
needed. Its apparent answer is that nothing more at all is needed, so that what it
guises as a “prima facie” case is in fact a conclusive one.
I see it differently. In order to refuse to assume a responsibility, a person
must—either expressly or through their conduct 2—indicate a lack of intention to
undertake the task going forward. See refuse, Webster’s Third New Int’l Dictionary
1910 (2020) (“to show or express a positive unwillingness to do or comply with (as
something asked, demanded, expected)” (emphasis added)). It is not a synonym for
a moment’s unavailability, even if that unavailability is unexplained. Nor does it
mean immaturity or even irresponsibility. Consider an example: if I am tasked with
taking out the trash every night, and remember to do so nine out of every ten nights,
have I refused to assume responsibility for taking out the trash? I don’t think so; not
in any ordinary sense of the phrase, even if I have no good reason for my occasional
2
I agree with the majority in the limited regard that one can refuse to assume
a responsibility without expressly saying so. A refusal to assume care for a child
may be inferred, in the absence of an express refusal, where there is a persistent and
enduring course of conduct demonstrating that the parent has no intention of even
attempting to carry out their responsibilities. One or two failures to pick up a child
from daycare on time does not come particularly close to showing that. It is
sufficient cause to investigate whether Z.M. lacks proper parental care under
(9)(A)(ii), but it does not amount to a refusal to assume responsibility under
(9)(A)(iv).
29
oversights. Perhaps somebody aggrieved by my lapses might hyperbolically
describe me as refusing to assume my responsibility for effect. But if I have accepted
the responsibility without objection and attempt to carry it out, then dropping the
ball now and then is not a refusal to assume it. People are imperfect in carrying out
their responsibilities all of the time. Only when their lapses are so persistent that
they rise to the level of recalcitrance may they fairly be described as refusing to
assume those responsibilities. A lapse (or two) is not recalcitrance. 3 To the extent
there is any ambiguity in what it means to refuse to assume responsibility to care for
a child, the rest of the provision supports my understanding of that phrase.
In order to fit circumstances like these into (9)(A)(iv), the majority also
misconstrues the word “discontinue.” The question of refusal comes into play only
after “the person or institution which is providing for the child states an intention to
discontinue such care.” D.C. Code § 16-2301(9)(A)(iv) (emphasis added). A
3
The majority asserts that the neglect statute is remedial in nature, and should
therefore be construed broadly. Ante at 16 (citing In re S.G., 581 A.2d 771, 778
(D.C. 1990)). That does not help the majority’s cause because even the broadest
reading of subsection (iv) would not apply to these facts. Moreover, the entire
rationale for reading the neglect statute broadly is to promote “the best interest of
the child,” id., a goal the majority does not advance. In this case, the guardian ad
litem, who is tasked with advocating for the best interest of the child, defends the
Superior Court’s judgment that there was no neglect in this case. While we are of
course not bound by the guardian ad litem’s position, I am unaware of any prior case
in which we have reversed a Superior Court’s judgment that a child was not
neglected despite the child’s representative defending that judgment on appeal.
30
daycare’s daily closure is not a discontinuation of care. To “discontinue” care means
to “end the operations or existence” of that care, such that a student’s expulsion
would mark a discontinuation of care, but the end of the school day does not.
Webster’s Third New Int’l Dictionary 646 (2020). In illustrating the meaning of the
word “discontinue,” Webster’s Dictionary gives examples of a “discontinued bus
service between two points,” a “school [that] was discontinued after a sharp drop in
enrollments,” and a student who “found it necessary to [discontinue] her course in
Spanish.” Id. In each case, the word “discontinue” refers to the indefinite cessation
of the activity, not a scheduled recess. A bus line is not discontinued during its off-
hours; a school is not discontinued at the end of each day; and a student does not
discontinue her course in Spanish at the end of each period of study.
Watering-down the word discontinue in this way erases the essential bounds
of (9)(A)(iv). Before today, we have applied (9)(A)(iv) only in situations where a
child’s primary caretaker truly discontinued care, meaning they indicated they were
done providing care altogether. See In re K.J., 11 A.3d at 277 (grandmother told
child “she could not come back to her home”); In re W.T.L., 825 A.2d at 894
(surrogate caretaker was “unable to” care for child “because of the demands of
rearing her own children”). In those situations, we have correctly considered the
parent’s persistent and enduring (not momentary) inability to step in and provide
care, over the course of many weeks and months, as satisfying (9)(A)(iv)’s standard
31
for neglect. See, e.g., In re K.J., 11 A.3d at 278 (upholding neglect finding under
(9)(A)(iv) where mother “did not make any arrangements for K.J. during the thirty-
day CFSA investigation” which followed the discontinuation of grandmother’s
care). We have never applied (9)(A)(iv) to anything resembling a daycare’s nightly
closures because a nightly closure is not a discontinuation of care. It is only by
misreading the word discontinue to mean a moment’s break in care that the majority
lays the groundwork for holding that a moment’s unavailability amounts to a refusal
to assume care. It misreads the statutory text in both respects, each building on the
other.
The majority’s reading of the word discontinue also renders the statute
incompatible with any plausible view of what the legislature intended. Why would
it matter to any legislator whether or not a refusal to assume care was preceded by
another’s indication that they would discontinue care (as the majority reads those
terms)? That seems a perverse scheme. Consider two scenarios: the parent who
simply walks out of the house and leaves their young child unattended for an hour,
and the parent who employs a babysitter and arrives home an hour after the
babysitter’s stated departure time. One might naturally think the parent in the second
scenario is the less blameworthy of the two, given that the babysitter might
begrudgingly stay beyond their stated departure time (whereas the first child is
32
definitely unattended for that hour). 4 But not under the majority’s approach, under
which only the second has been neglectful under (9)(A)(iv), while the parent who
simply walked out for an hour would not be. I can conceive of no good explanation
for that incongruous result or why we would think the legislature intended it.
Today’s holding is also at odds with other provisions in the neglect statute.
For instance, subsection (9)(A)(vii) instructs that a neglected child is one “who has
resided in a hospital located in the District of Columbia for at least 10 calendar
days . . . despite a medical determination that the child is ready for discharge from
the hospital,” but only if the parent “has not taken any action or made any effort to
maintain a parental, guardian, or custodial relationship or contact with the child”
(emphasis added). The majority’s interpretation of (9)(A)(iv) swallows (9)(A)(vii)
whole. See Corley v. United States, 556 U.S. 303, 314 (2009) (citations omitted) (It
is “one of the most basic interpretive canons” that a statute “should be construed so
that effect is given to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant.”). Contrary to the plain text of (9)(A)(vii), it
makes no difference if the child has been in the hospital fewer than ten days or if the
parent has made substantial but unsuccessful efforts to retrieve their child. So long
4
Note that the majority’s test would seem to endorse a neglect finding even
when the babysitter does in fact stay beyond their stated departure time.
33
as the hospital determines that the child is ready for discharge and thereby indicates
an intent to discontinue care, the majority reasons that the parent’s momentary
unavailability on minute one of day one after that indication makes out a case of
neglect under (9)(A)(iv), rendering (9)(A)(vii) irrelevant. Perhaps more importantly,
(9)(A)(vii) provides insight into what degree of parental absenteeism the legislature
believes amounts to per se neglect. Ten days without “any action or . . . effort to
maintain a parental” relationship is the answer provided by (9)(A)(vii), making the
majority’s answer of several minutes or hours as to (9)(A)(iv) incompatible with the
statutory text.
B.
I agree with the majority that “discrete conduct” is “the very basis” of a
neglect finding under (9)(A)(iv). Ante at 15. A finding of neglect is not only
justified but required any time a parent “refuses . . . to assume the responsibility for
the child’s care” after another caretaker “states an intention to discontinue such
care.” The fact that such a refusal amounts to neglect, per se, is further evidence still
that the legislature meant “refusal” to connote something quite serious, along the
lines I have explained above, and not in the more trivial sense the majority adopts.
See generally In re A.H., 842 A.2d 674, 684 n.16 (D.C. 2004) (government’s burden
in neglect proceedings “is commensurate with the gravity of the petition for
34
intervention in the lives of parent and child”). The majority’s contrary view leaves
it in a conundrum. It would be untenable to say that a parent neglects a child simply
by being late to pick them up from school, daycare, or the babysitter; what parent
has not been guilty of that? Thus, the majority retreats from its promise to focus on
discrete conduct and invents a new totality of circumstances “step two” of the
inquiry, and assures that the government will be unable to and “presumably . . . will
not seek to, establish” neglect in any case where there is “a reasonable explanation
or satisfactory excuse for an isolated instance of unavailability.” Ante at 18. The
majority’s presumption is unwarranted, and its totality of circumstances test just
layers another atextuality into its framework.
The majority instructs that when a parent is momentarily unavailable a
government official or court “must consider the surrounding circumstances and
reasons for the parent’s unavailability, as well as its duration, persistence, and
recurrence” in order to ascertain whether the parent can offer a “reasonable
explanation or satisfactory excuse.” Ante at 18. The court gleans that test from (1)
“common sense,” which more directly counsels against the majority’s reading of the
statutory terms in the first place, and (2) the legislative history of D.C. Code
§ 4-1301.05, which contains not so much as a cross-reference to (9)(A)(iv), and is
35
entirely unilluminating on the question before us except as support for the view that
some minutes or hours of parental unavailability does not equate to neglect. 5
Finally, the majority’s two-step approach to (9)(A)(iv), unlike any other
provision of § 16-2301(9)(A), shifts the burden to the parent to demonstrate the
absence of neglect. Once the government has shown a moment’s unavailability, the
majority places the onus on the parent to rebut that presumptive showing of neglect
by offering “a reasonable explanation or satisfactory excuse . . . such as unforeseen
circumstances beyond an attentive and concerned parent’s control or a good faith
mistake by the parent.” Ante at 18. That burden-shifting regime contravenes the
countless precedents in which we have held that it is the government’s burden to
demonstrate neglect. See, e.g., In re B.C., 257 A.3d 451, 461 (D.C. 2021); ante at
11 & n.6 (citing In re N.P., 882 A.2d 241, 247 (D.C. 2005)).
5
The majority reads the statutory history of § 4-1301.05, concerning how
police respond to reports of suspected neglect, as support for the proposition that a
child who is “left alone or without adequate supervision” is not necessarily
neglected. Ante at 19-20 & n.23 (citing Council of the District of Columbia, Report
of Committee on Human Resources and Aging on Bill 2-46, at 4 (Mar. 30, 1977)).
I agree with that much. But that is reason to reject the majority’s statutory reading
from the outset, not a reason favoring its two-step approach of diluting the statutory
test, treating it as a presumptive case of neglect, and then supplementing it with a
totality of circumstances test. It is only by assuming that the Council shares its view
that a moment’s unavailability is a presumptive case of neglect that the majority
discerns some support for its view in the legislative history; once stripped of that
assumption, even this tangential legislative history undercuts the majority’s view.
36
II.
That brings me to my jurisprudential concern. We have a well-developed
body of precedents analyzing when a child is “without proper parental care or
control” under the more regularly invoked provision of the neglect statute, D.C.
Code § 16-2301(9)(A)(ii). Unlike (9)(A)(iv), which targets discrete conduct,
(9)(A)(ii) is geared toward a totality of circumstances by its very terms; it asks
whether the child is “without proper parental care.” In interpreting that broad
statutory phrase, we have explained that “‘the trial court’s inquiry must go beyond
simply examining the most recent episode,’ or a single snapshot [in time], and
instead ‘must consider the entire mosaic in making its determination.’” In re P.B.,
54 A.3d 660, 666 (D.C. 2012) (first quoting In re T.G., 684 A.2d 786, 788 (D.C.
1996), then quoting In re N.P., 882 A.2d at 250) (emphasis added). Because we
already have a well-worn inquiry for determining whether a child is without proper
parental care under (9)(A)(ii), the majority’s creation of an alternative totality of
circumstances test under (9)(A)(iv) demands some justification that it never
provides.
For starters, the majority does not tell us what its new test is indexed to beyond
any particular judge’s sensibility of what ought to be deemed neglect. Put another
way, it does not tell us what bottom-line question the totality of circumstances speaks
37
to under (9)(A)(iv). I see two possibilities. Perhaps it is entirely duplicative of the
(9)(A)(ii) inquiry, and the new totality of circumstances test under (9)(A)(iv) is also
geared toward discerning whether the child is without proper parental care. If that
is the case, then why hoe this new row? The only purpose of that would be to
circumvent our (9)(A)(ii) precedents in those cases where the government cannot or
has not made the showing required, as occurred here, where the government offered
little more than a snapshot of the care provided for Z.M. See, e.g., In re T.G., 684
A.2d 786, 789 (D.C. 1996) (reversing a neglect finding based on “deplorable” living
conditions observed on a single day, noting that “[n]ot enough focus . . . was centered
on the physical or mental condition of the children overall”); In re K.M., 75 A.3d
224, 233-34 (D.C. 2013) (finding evidence of neglect “insufficient” where evidence
of parent’s delusional disorder was unaccompanied by evidence of “how likely it
actually was that [potential] harms would befall” the child).
The more likely explanation is that the majority is doing something else
entirely and jettisoning a hallmark of our neglect jurisprudence that “the relevant
focus for the court . . . is the child’s condition, not the [parent’s] culpability.” 6 In re
6
As further support that this is the majority’s chosen path, it says that “to the
extent the reviewing judge also understood subsection (9)(A)(iv) to require a
showing of an adverse impact on the child, that too was a misreading of a statute
meant to protect children from harm. There is no such requirement in subsection
(9)(A)(iv).” Ante at 16.
38
E.H., 718 A.2d 162, 169 (D.C. 1998) (quoting In re B.C., 582 A.2d 1196, 1198 (D.C.
1990) (per curiam)). If that is the case, the majority has opened up a brand-new
avenue for the government to intervene in a parent-child relationship without first
showing that the child is actually at any risk. See In re A.H., 842 A.2d at 684 n.14
(“State intrusion in the parent-child relationships is, presumptively, a last resort.”).
As we have often stated, the purpose of the neglect statute is to protect at-risk
children, not to punish blameworthy behavior by parents. See, e.g., In re T.T.C., 855
A.2d at 1119 (“[T]he relevant focus for the court . . . is the children’s condition, not
the [parent’s] culpability . . . because the purpose of the neglect statute is to protect
the child from harm.”). 7 That is why our precedents interpreting (9)(A)(iv)’s
neighboring provisions focus on the condition of the child, consistently requiring a
holistic showing that the child’s welfare is actually at risk. In re A.H., 842 A.2d at685 & n.16 (it is the government’s “responsibility in the first instance to take the
trouble to investigate the overall family situation and present an adequate evidentiary
picture”).
7
In In re T.T.C., we read D.C. Code § 16-2301(9)(A)(iii) to require actual risk
to the child, even though that requirement appears nowhere on the face of the
provision. See 855 A.2d at 1121. In that case, we said that an incarcerated father’s
failure to provide the appropriate legal protections for the person he chose as his
children’s caretaker only became neglect when the children’s drug-addicted mother
appeared on the scene to reclaim custody. The decisive factor was not the father’s
culpability, but the effect of his omission on the purportedly neglected children.
39
It is not clear to me which of these two ill-advised paths the majority has
started down. I see both of them as substantial departures from our precedents and
as contravening the text of (9)(A)(iv). I therefore dissent.