In re B.C. C.P. ( 2021 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-FS-984
IN RE B.C.;
C.P., APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(NEG-9-19)
(Hon. Janet Albert, Magistrate Judge)
(Hon. Darlene Soltys, Associate Judge)
(Argued June 16, 2021 Decided August 19, 2021)
Allison K. Bauer was on the brief for appellant.
Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor
General, Stacy L. Anderson, Senior Assistant Attorney General, and David Stark,
Assistant Attorney General, were on the brief for appellee.
Before THOMPSON and EASTERLY, Associate Judges, and OKUN, Associate
Judge, Superior Court of the District of Columbia. *
EASTERLY, Associate Judge: A determination that a parent is unable to
discharge their responsibilities to care for their child due to mental incapacity under
*
Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).
2
D.C. Code § 16-2301(9)(A)(iii) (2012 Repl. & 2021 Supp.) is momentous. It can
have an adverse impact on the parent, both legally and reputationally. For this
reason, even if a parent opts not to challenge other grounds of neglect under D.C.
Code § 16-2301(9)(A), a parent will often still be able to demonstrate that they have
standing to seek review of a mental incapacity determination. Further, a mental
incapacity neglect determination must be supported by sufficient evidence, which
may well necessitate a presentation of expert testimony. This case illustrates these
principles.
I. Facts and Procedural History
In 2018, the District’s Child and Family Services Agency opened an
investigation into then eight-year-old B.C.’s care by his mother, C.P. CFSA
subsequently filed neglect charges pursuant to D.C. Code § 16-2301(9)(A)(ii)
(defining a neglected child to include one “who is without proper parental care or
control, subsistence, education as required by law, or other care or control necessary
for his or her physical, mental, or emotional health, and the deprivation is not due to
the lack of financial means of his or her parent”), and D.C. Code § 16-2301(9)(A)(iii)
(defining a neglected child to include one “whose parent . . . is unable to discharge
3
his or her responsibilities to and for the child because of incarceration,
hospitalization, or other physical or mental incapacity”).
A. The Government’s Theories of Neglect and the Evidence at Trial
At the 2019 neglect trial before a magistrate judge, the government argued
that B.C. was a neglected child under D.C. Code § 16-2301(9)(A)(ii) because “his
basic educational needs [were] not being met.” The government presented evidence
that B.C. had been enrolled and removed from three different schools in the fall of
2018, that he had attended school at most a handful of days during that timeframe,
that C.P. had eventually sought authorization/permission to homeschool him but had
not received the waiver she needed as a non-high school graduate, and that B.C.’s
current academic performance was far below grade level.
Separately, the government argued that B.C. was a neglected child under D.C.
Code § 16-2301(9)(A)(iii) because C.P.’s mental incapacity rendered her unable to
discharge her parental responsibilities. The government’s theory was that C.P. had
previously exhibited paranoid behavior and delusional thinking, she had sought
unnecessary medical treatment for herself, and she was now doing the same for B.C.
To this last point, the government submitted medical records for B.C., documenting
C.P.’s numerous efforts to get B.C. care, often in relation to swelling on the right
4
side of his face. These records showed, however, that medical professionals had
observed the swelling, diagnosed an abscessed tooth, and recommended soft tissue
excision as treatment.
The government did not present any recent psychiatric records or expert
testimony to substantiate its allegation that C.P.’s mental incapacity led her to seek
unnecessary treatment for B.C. Instead, the government presented a variety of
medical records from (1) Jordan House, a psychiatric facility where C.P. received
treatment for three days in 2011 for depression and suicidal ideation before checking
herself out against therapeutic advice; (2) Core Health and Wellness Center, a
“primary care, alternative medicine and holistic wellness services” facility, 2
documenting numerous appointments for a range of reported ailments in 2012–16
which indicated that she may have had ongoing mental health issues, 3 but only a
handful of appointments in 2017 and 2018 for ailments which were verified and
treated; and (3) United Medical Center, spanning 2011–19, documenting
2
About us, Core Health and Wellness Center,
https://www.corehealthdc.com/about-us; https://perma.cc/KZZ3-VHVJ (last
visited August 10, 2021).
3
A 2014 note stated that C.P. had requested a heart transplant. A 2016 note
stated that she had claimed to have untreated cancer. And a 2016 note stated that
she “sees psychiatry but has remarked to the other providers [at Core Health and
Wellness Center] that she does not take her psychiatric medicines.”
5
appointments in 2017–19 for verified and treated ailments and minor injuries (e.g.,
a recurring sore throat, a urinary tract infection, and a bruised finger).
The government also presented testimony regarding C.P.’s mental health from
three CFSA employees who had interacted with C.P. 4 Narendra Date, the social
worker assigned to B.C.’s case in 2018, testified that he met with C.P. in person five
times over the course of that year and that C.P. was generally resistant to his effort
to investigate her case and would not let him talk to B.C. alone. Mr. Date stated that
“there was an indication that [C.P.] had unaddressed mental health needs.” When
asked to elaborate on the behavior that led him to believe C.P. had unaddressed
mental health needs, he stated that she “mistrust[ed] the people around here” and
had “ideations about herself being seriously ill . . . [and] about the child being
seriously ill without any documentations to back it up.”
4
Other government witnesses testified that they had contact with C.P., but
they provided no information related to C.P.’s mental health or capacity: (1)
Stephanie Thomas, the homeschool coordinator for the Office of the State
Superintendent of Education, testified about her communications with C.P. in the
fall of 2018 regarding approval of homeschooling for B.C., and (2) Nikki Barnes,
B.C.’s teacher, testified that she had had a phone call and an email exchange with
C.P., but she was not asked to detail those conversations.
6
Edward Rodrigues, the social worker assigned to B.C.’s case in January 2019
after B.C. was removed from C.P.’s care, testified that he had talked on the phone
and texted with C.P. weekly but met with her only once to supervise a visit with B.C.
He noted that her texts could sometimes “go[] onto a tangent” and that she had called
the police on him twice. 5 He expressed concern about her “lack of awareness of her
mental health needs” but also stated that “I don’t know if it’s — we have an
understanding of where she is at mentally right now.” When asked to explain why
he thought she had current mental health needs, he testified that it was “[j]ust the
long text messages that are . . . kind of incoherent; the ongoing lack of trust with
anyone, particularly me,” and “[t]he idea that she still sees . . . a medical problem,
or dental problems despite the advice of the doctor.” But he also testified that their
relationship had improved over time, that she had become “more open” to working
with the agency, and that she was working with a peer mentor. When asked to
connect his concerns about C.P.’s mental health to her parenting, he testified that “I
can’t say because I’ve only witnessed one visit.”
Lastly, Shanay Tymus, a registered nurse employed by CFSA, testified about
accompanying Mr. Date on a home visit to C.P.’s house in April 2018. At that visit,
5
He provided no detail about these incidents.
7
she and Mr. Date tried to get more information about B.C.’s health history, but C.P.
refused to provide them any documents or sign a release form. Ms. Tymus testified
that C.P. was “frustrated, really defensive, kind of like paranoid, but she wasn’t
confrontational or anything.”
C.P. testified on her own behalf. Regarding B.C.’s education, she explained
that, with authorization and instructions from OSSE, she had homeschooled him in
2017 (when B.C. would have been in first grade) because “he improves with working
one-on-one.” She testified that she used “many” curriculums from the D.C. Library,
but she was not asked to identify any one of them by name. She testified that, for
reading, she used flash cards to teach B.C. sight words; for math, she worked with
him on addition and subtraction (she noted that he struggled with double digit
numbers); for science, she had him draw pictures of “plants, and things like that.”
Over the summer of 2018, she enrolled him in Beers Elementary School, but she
explained that he never attended because it was 30 minutes away and she wanted to
enroll him at a school closer to home. She then enrolled B.C. at Martin Luther King,
Jr. Elementary School, but when he got a spot at Ingenuity Prep, she decided to enroll
him there because she wanted him to “go to a prep school [instead of a] public
school.” She took him out of Ingenuity Prep after a few weeks because of bullying
concerns, but she explained that she got in contact with OSSE to get permission to
8
homeschool B.C. again. She acknowledged that her “pattern” of enrolling and
removing B.C. from various schools did not reflect “the best choices.” She testified
that she was learning from her mistakes. She vaguely testified that in the fall of 2018
she taught B.C. in “all” subjects, and she documented her instruction, albeit
incompletely, in the required portfolio. She acknowledged that B.C. was behind
academically and that his Individualized Education Plan from kindergarten had
expired, but she testified that she had been trying to update it with Ingenuity Prep.
Regarding her mental health, C.P. admitted that she had received treatment in
2011–12 for postpartum depression but stated that she had no current diagnoses.
Regarding B.C.’s medical care, she testified that his facial swelling was documented
and diagnosed as the reaction to an impacted molar, and she pushed back against the
notion that “[she] was just paranoid.” She explained that B.C. was scheduled to have
a surgical procedure to address his impacted molar in January, but he was removed
from her care before the procedure could be performed.
B. The Neglect Determinations by the Magistrate Judge and the
Associate Judge
After the government gave its initial closing argument, the magistrate judge
indicated for the first time that she was contemplating whether B.C. was neglected
9
not only based on the government’s theories that (1) C.P. had failed to ensure B.C.
was getting adequate educational support, and (2) C.P.’s mental incapacity had
caused her to seek out unnecessary medical care for B.C., but also based on a theory
that the government had not argued, namely, (3) C.P.’s alleged mental incapacity
had affected her decisionmaking regarding B.C.’s education. 6
Alluding to the need to prove that a parent’s mental incapacity has a nexus to
a child’s neglect, the magistrate judge asked the government during its rebuttal,
“what’s the nexus for both the school and the medical?” The government responded
only “as it relates to the medical” by explaining that “there’s a nexus between her
mental health, her paranoia and her fixation that something is wrong with B.[C.]”
The magistrate judge subsequently asked again, “what do you say the nexus is on
the mental health on the decision making around schooling?” Obliged to address
the court’s question, the government focused on the fact that B.C. was not getting
the educational support he needed but proffered no link to C.P.’s mental health.
Indeed, highlighting C.P.’s movement of B.C. from school to school, the counsel for
the government acknowledged that he was “not sure of” “[t]he reason” for her
6
The magistrate judge appeared to have adopted this theory from the guardian
ad litem, who argued in opening and closing that C.P.’s mental incapacity adversely
impacted her decisionmaking regarding B.C.’s medical care and his education.
10
actions. Even so, the government ended the discussion by conclusorily arguing that
B.C. was “unable to get what he needs educationally in [C.P.’s] care because [of]
the mental health and the medical issue.”
In a written order, the magistrate judge determined that the government had
carried its burden to prove educational neglect, D.C. Code § 16-2301(9)(A)(ii), but
not neglect by reason of mental incapacity under D.C. Code § 16-2301(9)(A)(iii)
insofar as that neglect related to C.P.’s efforts to seek out unnecessary medical care
for B.C. As to the latter theory of neglect, the magistrate judge found that “the
mother has some level of paranoia but the record does not establish that the paranoia
rises to the level of being the cause of the number o[f] appointments/providers
consulted” regarding the swelling on the side of B.C.’s face. The magistrate judge
highlighted the lack of “live testimony” regarding B.C.’s medical care, specifically
the failure of the government to “call the providers as witnesses or to present the
entirety of [B.C.’s] medical records to a medical expert . . . and have that expert
testify.” While acknowledging that the number of appointments made by C.P. to
address this issue seemed “excessive,” the magistrate judge observed that “the
medical records are replete with conclusions drawn by the medical/dental
professional about the mother’s understanding, motivation, actions, etc. that cannot
be properly cross[-]examined” and it was “essential under the circumstances to have
11
at least one expert to be able to opine on the mother’s actions being tantamount to
medical neglect.”
Nevertheless, the magistrate judge concluded that B.C. was neglected under
D.C. Code § 16-2301(9)(A)(iii) based on the third theory of neglect that she had
raised, namely the theory that B.C. was neglected because of C.P.’s mental
incapacity as reflected in her poor educational decisionmaking. Reviewing the
evidence of C.P.’s mental incapacity, the magistrate judge no longer expressed any
concern about the absence of expert testimony. Appearing to rely on the medical
records as well as the testimony of lay witnesses, the magistrate judge found that
C.P. “has a diagnosis of post-partum depression and struggles with other mental
health issues related to anxiety, paranoia, and an inability to trust others.” The
magistrate judge also found that C.P.’s mental health issues had a nexus to her
educational decisions for B.C. The magistrate judge connected C.P.’s “lack of trust
in others and inability to have [B.C.] outside her sight” both to the fact that, “when
he attended school, [he] would regularly arrive late or was picked up early,” and to
C.P.’s decision to homeschool B.C. The magistrate judge also noted that C.P.
“admitted to making poor decisions as it relates to” B.C.’s education. Finally, the
court noted C.P.’s “lack of insight” regarding B.C.’s “multiple school placements”
12
and whether and how to homeschool him in light of his needs and her lack of a high
school diploma.
C.P. sought review by an associate judge and raised sufficiency challenges to
both of the magistrate judge’s neglect determinations. The associate judge
determined that the educational neglect determination under D.C. Code § 16-
2301(9)(A)(ii) was amply supported by B.C.’s extended school absences and C.P.’s
inadequate homeschooling. The associate judge likewise determined that the mental
incapacity neglect determination under D.C. Code § 16-2301(9)(A)(iii) was
supported by sufficient evidence. The associate judge rejected C.P.’s argument that
expert testimony addressing her mental health should have been presented, citing
decisions of this court for the proposition that mental incapacity under the neglect
statute “need not be a diagnosable mental illness” and need not be established by
expert testimony. The associate judge concluded that recognizing and understanding
C.P.’s “obsession with imaginary medical conditions which [B.C.] and she do not
have, paranoia, anxiety, and a severe lack of trust” were “within the realm of
common knowledge.” The associate judge further concluded that there was
sufficient evidence that C.P.’s mental incapacity led to B.C.’s deficient education.
The associate judge attributed B.C.’s absence from school to his numerous medical
appointments; opined that C.P.’s “demonstrated paranoia” and “lack-of-trust in
13
leaving [B.C.] in the care of third parties . . . were the reasons that [C.P.] opted to
home-school [B.C.]”; and determined that C.P.’s “mental incapacity (which
precluded her from recognizing her own inadequacies as a home schooling teacher)
interfered with her ability to adequately provide homeschooling instruction to
[B.C.]” This appeal followed.
II. Analysis
A. Standing
Before we consider the merits of C.P.’s sufficiency challenge, we must
address the government’s challenge to her standing to pursue this appeal. See D.C.
Appleseed Ctr. for Law & Justice, Inc. v. District of Columbia Dep’t of Ins., Sec., &
Banking, 54 A.3d 1188, 1199 (D.C. 2012) (“Standing is a threshold jurisdictional
question which must be addressed prior to and independent of the merits of a party’s
claims.” (internal quotation marks omitted)). In her brief to this court, C.P. does not
challenge the educational neglect determination pursuant to D.C. Code § 16-
2301(9)(A)(ii); she only challenges the mental incapacity neglect determination
pursuant to D.C. Code § 16-2301(9)(A)(iii). Because B.C. will still be adjudicated
neglected regardless of the outcome of this appeal, the government argues that C.P.
lacks standing to be heard by this court regarding any errors in the associate judge’s
14
order affirming the magistrate judge’s findings of fact and conclusions of law that
she neglected B.C. We cannot agree.
Generally, to establish standing, a litigant must have “a personal stake in the
outcome of the controversy.” Equal Rights Ctr. v. Props. Int’l, 110 A.3d 599, 603
(D.C. 2015) (internal quotation marks omitted). The litigant must claim “an actual
or imminent, concrete and particularized, invasion of a legally protected interest”
that can be “‘fairly trace[d]’ to [the opposing party’s] challenged actions” and that
can “be redressed by a favorable decision.” Id. (ellipsis omitted) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)); see also UMC Dev., LLC v.
District of Columbia, 120 A.3d 37, 42 (D.C. 2015) (explaining that this court,
although created under Article I, “generally adhere[s] to the case and controversy
requirement of Article III” of the Constitution). We have no trouble concluding that
C.P. has the requisite personal stake in the outcome of this appeal.
Beyond the injury of having a child removed from their care, a parent whose
child has been deemed neglected is adversely impacted by the neglect determination
itself, which “constitutes a permanent, and significant, stigma.” In re E.R., 649 A.2d
10, 12 (D.C. 1994) (internal quotation marks omitted). The impact on a parent’s
reputational interest alone gives them standing to challenge a determination of
15
neglect. Cf. id. at 13 (holding that the mother’s appeal of a neglect determination
was not moot even though her child had left the country and did not intend to return);
In re G.H., 797 A.2d 679, 683 (D.C. 2002) (in a neglect appeal, holding that the
mother’s boyfriend had “a reputational interest sufficient to provide him with
standing to challenge” the determination that he had physically abused a child, even
though he was “in no position to complain of the disposition of the children in the
absence of an appeal by the mother”).
The government argues that it is “purely speculative” for C.P. to argue that
she will suffer reputational harm from the neglect determination under § 16-
2301(9)(A)(iii) that is separate and distinct from the harm of a neglect determination
under § 16-2301(9)(A)(ii). But the determination that a parent is so mentally
incapacitated—i.e., that they have some sort of mental health condition or cognitive
impairment, see infra II.B.1. (discussing the definition of this term)—that the
incapacity has caused the child to be neglected impinges on a parent’s reputation in
a way that is distinct from a determination that a parent has failed to meet the
government’s educational standards for their child. See Bruce J. Winick, The Side
Effects of Incompetency Labeling and the Implications for Mental Health Law, 1
PSYCHOL. PUB. POL’Y & L. 6, 8 (1995) (explaining that the adverse effects of a
mental incompetence label applied by courts and administrative bodies include not
16
only legal consequences but also “serious social disadvantages, adversely affecting
the way others regard and treat” those who are so labeled); Justin L. Joffe, Student
Note, Don’t Call Me Crazy: A Survey of America’s Mental Health System, 91 CHI.-
KENT L. REV. 1145, 1166–68 (2016) (explaining that “the stigma surrounding mental
illness stubbornly persists,” notwithstanding advances in understanding of the
causes and treatments of mental illness). The distinct impact of a mental incapacity
neglect determination is sufficient to give C.P. standing to challenge this
determination on appeal. Cf. In re A.B., 999 A.2d 36, 44 n.25 (D.C. 2010) (rejecting
the argument that, because it was affirming neglect as to one child, “any additional
injury to [the mother’s] reputation flowing from the neglect findings with respect to
her other children is too negligible to support her standing to contest them”).
In re Z.C., 813 A.2d 199 (D.C. 2002), cited by the government, is factually
inapposite and does not support a different conclusion. In that case, the mother, who
had repeatedly and severely beaten her son, was convicted of assaulting him with a
dangerous weapon and sentenced to a term of imprisonment. She was then deemed
to have neglected him on multiple grounds, including that she was unable to
discharge her responsibilities as a parent “because of incarceration.” Id. at 200 n.3
(quoting D.C. Code § 16-2301(9)(C) (2001)). The mother sought review of only
that incarceration neglect determination, and this court determined that she lacked
17
standing to appeal. Id. at 202. Distinguishing cases like In re E.R. and In re G.H.,
where we had concluded the appellants had standing based on the adverse impact a
neglect determination had on their reputational interests, we concluded in In re Z.C.
that “[t]he mother’s [ADW] conviction . . . is a permanent stigma that would survive
any relief that she could obtain through this appeal.” 813 A.2d at 203. Unlike in In
re Z.C., in this case there is no other independent adjudication of the basis for the
challenged neglect (C.P.’s alleged mental incapacity) that would negate the
possibility of additional, appreciable reputational harm and preclude any meaningful
relief if that neglect determination were reversed.
In any event, the harm from the mental incapacity neglect determination that
C.P. seeks to challenge is not just reputational and not at all speculative. Once a
child has been deemed neglected and removed from the parent’s custody, the court
must regularly conduct permanency planning hearings to determine inter alia
“whether, and if so when, the child will be returned to the parent(s).” In re Ta.L.,
149 A.3d 1060, 1077 (D.C. 2016) (en banc) (citing D.C. Code § 16-2323(c)(2) (2012
Repl.). A “primary focus” of a permanency planning hearing is “on the parents’
efforts to ameliorate the conditions that led to the neglect and the District’s efforts
to assist them in achieving those goals.” Id. at 1078 (emphasis added). Accordingly,
a particular determination of neglect, such as a mental incapacity neglect
18
determination under § 16-2301(9)(A)(iii), is likely to have a direct impact on the
parent’s ability to regain custody of their children. Cf. In re A.B., 999 A.2d at 44
n.25 (concluding that the mother’s challenge to neglect determinations was not moot
even though the children had been returned to her because the neglect determinations
“might indirectly affect [her] status in potential future proceedings” (internal
quotation marks omitted)).
The government dismisses these collateral legal consequences, however. It
asserts that “there is no reason to think that permanency planning for B.C. will be
adversely impacted by” the § 16-2301(9)(A)(iii) neglect determination “because the
Superior Court Family Division does not need an adjudication [thereunder] in order
to remediate neglect under [§ 16-2301(9)(A)(ii)] where the court believes the neglect
under (ii) is predicated on concerns of a parent’s mental health.” To the extent the
government is arguing that trial courts may act on “belief” instead of substantiated
facts, we disagree. Absent a determination that a parent’s mental incapacity led to
their child’s neglect, the government would have to present some evidence at a
permanency planning hearing that mental health or incapacity was impeding
reunification in order to convince the court to order remedial measures. See In re
Z.W., 214 A.3d 1023, 1036–37 (D.C. 2019) (trial court’s permanency goal decisions
“must be based upon and drawn from a firm factual foundation” (internal quotation
19
marks omitted)). In contrast, if a mental incapacity neglect determination pursuant
to § 16-2301(9)(A)(iii) has been made, the court would necessarily incorporate an
assessment of the parent’s mental health or incapacity into its permanency planning
calculus. See § 16-2323(b)(4). Accordingly, the existence of the mental incapacity
determination is a cognizable harm to C.P.
The government separately argues that even if C.P. can show the requisite
injury for standing, there is another reason to conclude that C.P. cannot pursue this
appeal, namely that “this [c]ourt reviews judgments and not merely findings.” As
support for this proposition, the government once again relies on this court’s
decision in In re Z.C. We acknowledge that, after concluding that the mother in that
case did not have standing to pursue an appeal, this court went on to observe in its
final paragraph that the appeal was “subject to dismissal for a slightly different, but
related, reason.” In re Z.C., 813 A.2d at 203. We explained that “the case [was]
reminiscent of Thoubboron v. Ford Motor Co., 624 A.2d 1210 (D.C. 1993),” where
we had observed that “this court reviews judgments, not opinions” and declined the
appellant’s request to “strike . . . dictum” from a trial court’s order. In re Z.C., 813
A.2d at 203 (brackets and internal quotation marks omitted). We then said in In re
Z.C. that “this case does not differ in principle from the issue addressed in the
Thoubboron footnote.” 813 A.2d at 203 (emphasis added).
20
For multiple reasons, we disagree that In re Z.C. categorically bars appellate
review of fewer than all neglect determinations made in a case. First, if this court in
In re Z.C. had meant to impose such a categorical bar, the preceding standing
analysis that serves as the foundation for the court’s primary holding would have
been entirely unnecessary. See 813 A.2d at 203 (discussing the lack of reputational
harm and concluding that “[a]ccordingly, the mother lacks standing to prosecute her
appeal”); see also In re M.L., 28 A.3d 520, 531 n.22 (D.C. 2011) (relying on In re
Z.C. for the principle that an appellant who cannot secure “any remedial benefit from
a decision by this court” lacks standing to bring an appeal (internal quotation marks
omitted)). Second and relatedly, any such categorical bar would have been
irreconcilable with the binding precedent cited in In re Z.C., authorizing neglect
appeals to be litigated even though they would not alter the bottom-line adjudication
of neglect. See In re G.H., 797 A.2d at 683, 686 (allowing mother’s boyfriend to
pursue his appeal, even though it could not affect the neglect adjudication, and
ultimately concluding that the evidence was insufficient to support the finding that
the boyfriend had placed two of the children in danger, but leaving the disposition
order undisturbed). Third, it is simply incorrect that this court only reviews
“judgments.” We regularly review component rulings within judgments, and when
we conclude that any errors were harmless, we do not simply dismiss these appeals.
Fourth and finally, it would make little sense to force appellants to frivolously
21
challenge every neglect determination just to be able to claim standing to challenge
one that can cause real injury under a traditional standing analysis. In the absence
of any subsequent decision relying on this language in the manner the government
advocates, we thus interpret In re Z.C. narrowly as a decision where our discussion
of appealability was driven by our assessment that the mother—who was not
challenging the determination either that she was in prison or that she was unable to
personally care for her children as a result—was, like the litigant in Thoubboron,
seeking review of inconsequential facts. See In re Z.C., 813 A.2d at 200 n.4.
For all of these reasons, we hold that C.P. has standing to challenge on appeal
the determination of neglect pursuant to D.C. § 16-2301(9)(A)(iii).
B. Sufficiency of the Evidence
“In a child neglect proceeding, the [government] has the burden of proving by
a preponderance of the evidence that a child is neglected . . . .” In re E.H., 718 A.2d
162, 168 (D.C. 1998). On appeal, “[w]e will reverse a finding of neglect only if it
is plainly wrong or without evidence to support it, and only after viewing the
evidence in the light most favorable to the court’s ruling.” In re Ta.C., 237 A.3d
114, 120 (D.C. 2020) (internal quotation marks omitted). “But consistent with that
deference, we must ensure that a finding of neglect embodies a correct understanding
22
of the relevant statutory terms. The proper construction of the neglect statute is a
legal question, as to which our review is not deferential, but de novo.” Id. (brackets,
footnote, and internal quotation marks omitted). In addition, as we explained in In
re S.L.G., 110 A.3d 1275 (D.C. 2015), although our review is of “the order of the
associate judge, who reviewed the magistrate judge’s order in this case for errors of
law, abuse of discretion, or clear lack of evidentiary support,” we may still “look to
the findings and conclusions of the fact finder on which that ruling is based.” Id. at
1285 (internal quotation marks omitted).
In order to make out a case of neglect under D.C. Code § 16-2301(9)(A)(iii),
the government must prove both that a parent has a mental incapacity and that the
mental incapacity has caused their “inability to provide proper parental care,” i.e.,
that there is a nexus between the mental incapacity and their lack of care for the
child. In re P.B., 54 A.3d 660, 667 (D.C. 2012) (quoting In re N.P., 882 A.2d 241,
251 (D.C. 2005)). Here, C.P. argues that the government failed to carry its burden
for either element. We examine each in turn.
23
1. Mental incapacity
While acknowledging that “she has a history of mental health issues and
hospitalization in 2010 through 2012” after B.C.’s birth, C.P. argues that the
evidence was insufficient for the Superior Court to find that she suffered from a
mental incapacity at the time of the alleged neglect in 2018–19, particularly in the
absence of any expert testimony. In essence, she argues that the mental health
records from six to eight years earlier presented by the government had little bearing
on her mental state in 2018–19 and that the “observations made by Mr. Date, Ms.
Tymus, and Mr. Rodrigues,” none of whom are licensed mental health professionals,
were too limited to support a determination that she was mentally incapacitated at
the time of the alleged neglect.
Before we assess the sufficiency of the evidence of mental incapacity
presented at the neglect trial in this case, we must address two predicate subjects,
namely, the meaning of “mental incapacity” and the manner in which it may be
proved. The term “mental incapacity” is not defined in the neglect statute, and the
closest this court has come to discerning the definition of the term is to reject efforts
to interpret it too narrowly. See, e.g. In re N.P., 882 A.2d at 251 (concluding that
the government’s expert testimony diagnosing the mother with battered woman
24
syndrome, “severe dependency,” and low-level intellectual functioning was
sufficient evidence of “mental incapacity”); In re P.B., 54 A.3d at 664–65, 667
(concluding that the government’s evidence of the mother’s mental incapacity was
sufficient where (1) the government’s expert testified that the mother suffered from
some sort of mood disorder, (2) the mother’s expert agreed that testimony about the
mother’s behavior, if credited, indicated she “might be suffering from some kind of
psychotic condition,” and (3) “numerous witnesses . . . described [the mother’s]
paranoid beliefs, delusional thinking, and seclusion” (internal quotation marks
omitted)). Thus, we have yet to discern a comprehensive definition for this statutory
term.
“We start, as we must, with the language of the statute.” Tippett v. Daly, 10
A.3d 1123, 1126 (D.C. 2010) (internal quotation marks omitted). In examining this
language, “it is axiomatic that the words . . . should be construed according to their
ordinary sense and with the meaning commonly attributed to them.” Id. (internal
quotation marks omitted); see also id. at 1127 (endorsing “look[ing] to dictionary
definitions to determine the ordinary meaning”). The ordinary meaning of “mental”
is “of or relating to the mind,” Mental, Merriam-Webster’s Collegiate Dictionary
(11th ed. 2003); and the ordinary meaning of “incapacity” is the “quality or state of
being incapable,” Incapacity, Merriam-Webster’s Collegiate Dictionary, with
25
“incapable” meaning “lacking capacity, ability, or qualification for the purpose or
end in view,” Incapable, Merriam-Webster’s Collegiate Dictionary. Reading these
words together makes readily apparent that “mental incapacity” encompasses, but is
not limited to, debilitating mental illness. See In re N.P., 882 A.2d at 251(incorporating an assessment of mother’s cognitive ability). The cause of mental
incapacity encompasses a range of psychiatric, psychological, or physiological
conditions that may adversely impact a parent’s thought processes. But those
conditions must be related to mental functioning, and they must be “incapacitating,”
i.e., they must pose a serious impediment to the parent’s ability to navigate their
daily life. This conclusion is compelled not just because of the statutory language,
but also because of the underlying constitutional considerations which limit the
government’s power to intrude into the parent-child relationship. 7 The exercise of
poor judgment or irrational decisionmaking cannot be enough. Parents are human
after all; they can and do make mistakes.
7
See In re Ta.L., 149 A.3d at 1072 (acknowledging “the fundamental right of
parents to raise their children”); see also id. at 1121–27 (Beckwith & Easterly, JJ.,
concurring in part and dissenting in part) (same).
26
Relatedly, because mental incapacity often is “related to some science,
profession, or occupation [so] as to be beyond the ken of the average layperson,” 8 it
may well need to be substantiated with expert testimony, as the neglect statute and
our cases reflect. Like other provisions of the D.C. Code, 9 the neglect statute
anticipates the need for expert input and authorizes the court “on its own motion or
the motion of any party, for good cause shown,” to “order the mental . . .
examination of the parent, guardian, or custodian of the child whose ability to care
for the child is at issue.” 10 D.C. Code § 16-2315(e)(1) (2012 Repl.). Likewise, our
8
In re B.L., 824 A.2d 954, 956 (D.C. 2003) (internal quotation marks
omitted); cf. In re Wyler, 46 A.3d 396, 401 (D.C. 2012) (recognizing that mental
illness is an “unusually complex and technical area” and explaining that proffered
expert testimony must be properly vetted).
Mental health professionals in the District are required to be professionally
licensed (e.g., license to practice medicine, license to practice psychology, license
to serve as a social worker). See D.C. Code § 7-1201.01(11) (2018 Repl.). More
specifically, for a social worker to opine on a diagnosis and treatment of
psychosocial problems, the social worker has to have “at least 3,000 hours of post-
master’s or postdoctoral experience participating in the diagnosis and treatment of
individuals . . . with psychosocial problems.” D.C. Code § 3-1208.04(a) (2021
Repl.).
9
See, e.g., D.C. Code § 21-2204(a) (2012 Repl.) (providing that before health
care decisions for a person with mental illness may be made by a third party, the
individual’s mental incapacity must be certified “by 2 professionals who are licensed
to practice in the District and qualified to make a determination of mental
incapacity”).
10
The magistrate judge twice directed C.P. to get a mental health assessment.
The government represents in its brief that C.P. did not “timely present herself” for
evaluation. But there is no information in the record about C.P.’s compliance with
these orders. In any event, C.P.’s compliance was not essential to the presentation
27
cases reflect regular reliance on the testimony of one or more experts to support a
determination of mental capacity. 11 See, e.g., In re E.H., 718 A.2d at 166–68 (five
medical experts testified); In re P.B., 54 A.3d at 664–65 (two medical experts
testified); In re K.M., 75 A.3d 224, 233–35 (D.C. 2013) (two medical experts
testified, but evidence of nexus to neglect deemed insufficient).
Turning to the evidence in this case, we consider the foundation for the
associate judge’s conclusion that the government had carried its burden to prove
C.P.’s “mental incapacity, specifically obsession with imaginary medical conditions
which [B.C.] and she do not have, paranoia, anxiety, and a severe lack of trust.” 12
of expert testimony, which could have been based on C.P.’s medical records. Cf. In
re Amey, 40 A.3d 902, 914–15 (D.C. 2012) (holding trial court did not err by
allowing psychiatrist testifying as an expert witness to refer to hospital records and
other hearsay statements in explaining the basis of his opinions, in part because
hospital records “are unquestionably of the type[] [of statement] customarily relied
on by psychiatrists” ).
11
The government highlights our determination in In re B.L. that alcoholism,
the subject of the mental incapacity, was “a matter of common knowledge” which
did not need to be substantiated with expert testimony. 824 A.2d at 956 (internal
quotation marks omitted)). For the reasons discussed above, we disagree with the
government that In re B.L. supports an expansive proposition that expert testimony
is generally unnecessary to prove a parent’s mental incapacity under D.C. Code
§ 16-2301(9)(A)(iii); the case simply held that expert testimony was not required in
light of the facts of that case.
12
Unlike the magistrate judge, the associate judge does not appear to have
relied on C.P.’s historical “diagnosis of post-partum depression.” We agree that this
diagnosis did not assist the government in carrying its burden of proof. We see no
28
To support her determination of C.P.’s mental incapacity, the associate judge
relied on nine years of C.P.’s medical records that the government put into evidence.
The associate judge noted that these records documented C.P.’s “several mental
health hospitalizations, including an involuntary commitment” and her receipt of
“Haldol, a psychotropic medication, on multiple occasions” and reflected her
“history of paranoia, depression, and anxiety.” The associate judge also relied on
“[r]ecords from [C.P.’s] primary care physician, Core Health and Wellness,
indicat[ing] that [C.P.] would frequently request unnecessary medical procedures
[and] exaggerate her symptoms.”
While this court has held that “[i]n evaluating the child’s condition, the trial
court’s inquiry must go beyond simply examining the most recent episode [of
neglect] or a single snapshot [in time], and instead must consider the entire mosaic in
making its determination,” In re P.B., 54 A.3d at 666 (brackets, citation, and internal
quotation marks omitted), particularly when assessing a parent’s mental incapacity,
connection on this record between C.P.’s diagnosis of postpartum depression after
B.C.’s birth and her mental state years later, particularly in the absence of any expert
testimony explaining what postpartum depression is, how long it can last, and
whether and how it relates to other mental health issues. Although we held in In re
B.L. that expert testimony is not necessarily required to support a finding of mental
incapacity under the statute if the source of the incapacity is “a matter of common
knowledge,” 824 A.2d at 956, as our questions reveal, we cannot so categorize
postpartum depression.
29
the trial court must also take care not to rely too heavily on dated and potentially
stale information. Here, we cannot agree that C.P.’s medical records carry much
weight in establishing C.P.’s mental incapacity at the time of the alleged neglect.
C.P.’s actual mental health records were, like her postpartum depression diagnosis,
see supra note 12, many years old, from 2010–12. See In re L.H., 925 A.2d 579,
582–83 (D.C. 2007) (concluding that there was no foundation for the “perceived . . .
link” between mother’s hospitalization and mental health treatment in 1998 and the
state of her mental health at the time of the alleged neglect in 2004–05). Although
C.P.’s overall medical records spanned a time period up to the time of the alleged
neglect, the records that reflected a potential mental health problem—those
documenting her efforts to obtain medical care for perhaps questionable
complaints—were not contemporaneous with the alleged neglect. Rather, the
medical records from 2018–19 reflected that she had properly sought and received
treatment for verified ailments. Particularly in the absence of expert testimony
explaining what could be gleaned from these records about C.P.’s current mental
health, the associate judge’s inference from these records that C.P. was currently
mentally incapacitated “rests, in our view, on too much speculation.” Id. at 582–83
(“[T]he judge heard no psychiatric or other medical testimony relating the mother’s
past medical condition to her conduct in 2004 and her present capacity to parent.”).
30
As additional and more current evidence of C.P.’s mental incapacity, the
associate judge also relied on the medical records reflecting C.P.’s multiple efforts
to obtain medical care primarily for B.C.’s facial swelling. But the magistrate judge
had deemed these same records insufficient to support a determination that C.P.’s
mental incapacity caused her to seek out unnecessary medical treatment for B.C. We
agree with the magistrate judge that, on their own, these records did not support a
determination that visiting medical professionals was “a symptom of [C.P.’s]
paranoia,” as opposed to “a well-reasoned decision” and “proper diligence” on
C.P.’s part, especially when the evidence established that B.C. in fact had visible
facial swelling. And we further agree that it was “essential . . . to have at least one
expert to be able to opine on the mother’s actions being tantamount to medical
neglect.” Accordingly, while “mindful . . . of a trial judge’s prerogative to draw
reasonable inferences from the record,” In re L.H., 925 A.2d at 582, we cannot
endorse the associate judge’s reliance on the same medical records to support a
determination that C.P. was mentally incapacitated in the context of her educational
decisionmaking for B.C. 13 Here too, expert testimony was needed to evaluate the
medical records and explain their relevance to C.P.’s current mental health.
13
The associate judge’s reliance on these records after the magistrate judge
declined to rely on them might be attributable to the associate judge’s
misunderstanding that C.P. had imagined B.C.’s facial swelling.
31
This leaves the testimony from three lay witnesses—two CFSA social
workers assigned to C.P.’s case, Mr. Date and Mr. Rodrigues, and one CFSA
registered nurse, Ms. Tymus—who testified for the government about their
observations of C.P. The associate judge, like the magistrate judge before her, relied
on this testimony to support her determination that C.P. was mentally incapacitated.
Examining this testimony, we conclude that, at most, it constituted some evidence
on which an expert diagnosis could have been based or corroborated. But these
witnesses were not themselves qualified to make such a diagnosis, see supra note 8,
and their ultimately equivocal testimony did not provide a foundation for the
associate judge to determine that C.P.’s mental state could be assessed based on
common knowledge.
All three witnesses testified about C.P.’s resistance to working with them, and
Mr. Date and Mr. Rodrigues both cited C.P.’s distrust of them as a basis of their
belief that C.P. might have mental health issues. Although these CFSA employees
considered C.P.’s hostility abnormal, some amount of distrust and resentment is not
surprising under the circumstances where parents know that CFSA is responsible for
the removal of their child from their custody. Furthermore, Mr. Rodrigues, who had
had the most recent contact with C.P., testified that the situation had improved in the
four months he had been working on B.C.’s case. Mr. Date and Mr. Rodrigues also
32
grounded their mental health concerns in C.P.’s efforts to seek medical treatment for
B.C. But as discussed above, this was the allegation the magistrate judge determined
could not be supported in the absence of expert testimony. Ultimately, none of these
witnesses testified with any certainty that C.P. actually had a mental illness. Mr.
Date, who worked on B.C.’s case for the longest time and had the most in-person
interactions with C.P., testified only that “there was an indication that she had
unaddressed mental health needs.” (emphasis added). Mr. Rodrigues testified only
that he was “concern[ed]” about C.P.’s “lack of awareness of her mental health
needs” but also acknowledged that he was unsure that the agency had “an
understanding of where she is at mentally right now.”
This layperson testimony, like the mental health and medical records
presented by the government, was not sufficient to prove C.P.’s mental incapacity at
the time of the alleged neglect. Instead, this evidence in its totality indicates that the
situation was complicated and ambiguous, particularly in the absence of expert
testimony. The associate judge’s own assessment that C.P. was “obsess[ed] with
imaginary medical conditions” and suffered from “paranoia, anxiety, and a severe
lack of trust” was thus not adequately founded, and her conclusion that the
government had carried its burden to establish mental incapacity to support a
determination of neglect pursuant to § 16-2301(9)(A)(iii) was in error.
33
2. Nexus to Educational Neglect
As noted above, in addition to proving a parent’s mental incapacity at the time
of the alleged neglect, the government must demonstrate a causal relationship
between a parent’s mental incapacity and their inability provide parental care. See
In re E.H., 718 A.2d at 169. “Without any evidence of such a nexus, the adjudication
of neglect under [subsection (9)(A)(iii)] cannot be sustained.” In re Am. V., 833
A.2d 493, 499 (D.C. 2003) (insufficient evidence of nexus between mother’s
incapacity and inadequate care for her child); see also In re K.M., 75 A.3d at 231–
33; In re N.P., 882 A.2d at 251. Assuming for the sake of argument that C.P. was
mentally incapacitated at the time of the alleged neglect, there is simply no proof in
this record that her mental health had any bearing on B.C.’s educational neglect.
None of the government’s witnesses provided any such nexus testimony because this
was not the theory of neglect that the government pursued at trial. See supra I.A.
The government’s theory was that C.P.’s mental incapacity had led her to seek
unnecessary medical care for B.C. It was only after the magistrate judge twice
prompted the government to argue this alternate rationale that C.P.’s mental
incapacity led to B.C.’s educational neglect that the government pivoted to this
theory of neglect under § 16-2301(9)(A)(iii).
34
To the extent any relevant evidence was presented, it did not support a nexus
between any mental incapacity and B.C.’s educational neglect; instead it indicated
that C.P. was attentive to and concerned about B.C.’s education, even as she failed
to make good choices for him. Although she enrolled B.C. at three different schools
in a short span of time, C.P. offered not patently unreasonable explanations for her
actions—she withdrew B.C. from the first school because the commute was too long,
from the second because a spot opened up at the third that she thought would be
better for him, and from the third because she had some concern about bullying and
because in her estimation he worked better in “one-on-one sessions.” And she
contacted OSSE thereafter to get permission to homeschool B.C., as she had done
the year prior, and followed the agency’s instructions. None of this evidence
indicates that any mental incapacity had a causal connection to B.C.’s educational
neglect, and the government never argued otherwise. Instead, the government
conceded in rebuttal that it was “not sure of” “[t]he reason” for C.P.’s educational
decisions for B.C.
The associate judge’s conclusion that B.C.’s “numerous excused and
unexcused absences” from school were “presumably at least in part due to some of”
his appointments to address his “imaginary facial swelling” is problematic for
multiple reasons. First, B.C.’s facial swelling was not “imaginary.” Second, as the
35
magistrate judge found, the allegation that C.P. had sought unnecessary treatment
for B.C. was unsubstantiated. And third, the associate judge provided no basis, and
we discern none, for her determination that B.C. missed school to go to the doctor. 14
Likewise, the associate judge’s finding that C.P. opted to homeschool B.C.
because she did not want to leave him in the care of third parties had no foundation.
No witness ever attributed that rationale for homeschooling to C.P., and she never
testified to that effect. Nor can we conclude there was a reasonable basis for the
court to draw this inference either from Mr. Date’s testimony that C.P. was unwilling
to let B.C. be alone with him—a perceived adversary in the neglect process—or from
his testimony about C.P.’s actions at a January court hearing when B.C. was
removed from C.P.’s custody. The government presented no evidence at the neglect
trial that C.P. would not leave B.C. in the care of third parties, “even in the hallway
of the courthouse,” as the associate judge found. Mr. Date simply testified that C.P.
had failed to make arrangements for someone to watch B.C., that the hearing was
delayed “until some professional could watch him,” and that C.P. had to leave the
14
Although the magistrate judge found that C.P. often dropped B.C. off late
or picked him up early at school because of her “lack of trust in others and inability
to have [B.C.] outside her sight,” we see no evidence in the record supporting this
finding either.
36
courtroom several times because B.C. was being disruptive. Mr. Date was unable
to say whether C.P. was willing to leave B.C. with someone else on that day.
Lastly, the associate judge’s conclusion that C.P.’s mental incapacity
“precluded her from recognizing her own inadequacies as a home schooling teacher”
is also unsubstantiated. Other than the fact that C.P. sought to homeschool B.C.,
there is no evidence about what C.P. thought at the time of her own abilities as a
homeschooling teacher. Without more, her decision to homeschool him in 2018
cannot be attributed to mental incapacity, especially when OSSE had authorized her
to homeschool him in 2017. Moreover, C.P. subsequently acknowledged at the
neglect trial that she could see now that she had not made the best choices for B.C.
vis-a-vis his education. 15
15
Citing to C.P.’s “admissions” that “she had made bad decisions” about
B.C’s schooling and her inability to describe with precision the content of her
homeschooling instruction, the government argues that there is sufficient evidence
of nexus between C.P.’s mental incapacity and her educational neglect of B.C. But
as explained above, mental incapacity is more than bad judgment, and the
government’s nexus argument on appeal appears premised on a theory of cognitive
impairment as mental incapacity, which the government never argued or proved at
the neglect trial.
37
For all these reasons, we conclude that there was insufficient evidence to
support the associate judge’s affirmance of the magistrate judge’s determination of
mental incapacity neglect pursuant to D.C. Code 16-2301(9)(A)(iii).
III. Conclusion
Based on the above analysis, we reverse and remand for further proceedings
consistent with this opinion.
So ordered.