In re D.S., K.M., B.S., R.S., T.S. & P.S.

No. 10-FS-1556
IN RE: D.S.;
No. 10-FS-1557
IN RE: K.M.;
No. 10-FS-1558
lN RE: B.S.;
No. 10-FS-1559
IN RE: R.S.;
No. 10-FS-1560
lN RE: T.S.;
No. 10-FS-1561
IN RE: P.S.;
District of Columbia
J.M.,
J.M.,
J.M.,
J.M.,
J.M.,
J.M.,
Court of Appeals
Appellant,
Appellant
Appellant
Appellant,
Appellant,
Appellant.
[FI] L IE @
MAR132014
DISTR|CT OF COLUMBlA
COURT OF APPEALS
NEG334-10
NEG336-10
NEG337-10
NEG338-10
NEG339-10
NEG340-10
BEFORE: Washington, Chief Judge; Glickman, Fisher, Blackburne-Rigsby,*
Thompson, Beckwith,* Easterly, and McLeese, Associate Judges; Ferren,* Senior Judge.
ORDER
On consideration of appellee's motion for an extension of time within which to file
a petition for rehearing or rehearing en banc, appellee's motion for leave to file excess
pages of appellee's lodged petition for rehearing or rehearing en bcznc, and appellant's
opposition thereto, it is
ORDERED that appellee's motion for an extension of time within which to file a
petition for rehearing or rehearing en banc is granted. lt is
FURTHER ORDERED that appellee's motion for leave to file excess pages of
appellee's lodged petition for rehearing or rehearing en banc is granted, and the Clerk
shall file appellee's lodged petition for rehearing or rehearing en banc. lt is
FURTHER ORDERED by the merits division* that the petition for rehearing is
granted to the extent that the opinions issued by this court on September 20, 2012, 52
A.3d 887 (D.C. 20l2), and February 21, 2013, 60 A.3d 1225 (D.C. 2013), are hereby
vacated. lt is
FURTHER ORDERED that appellee's petition for rehearing en banc is denied. lt
FURTHER ORDERED that the Clerk shall issue the accompanying opinion on
this day, March l3, 2014.
PER CURlAM
Copies to:
Honorable Jeanette Jackson Clark
Clerk, Superior Court
Leslie J. Susskind, Esquire
l Research Court, Suite 450
Rockville, MD 20850
Beverli B.V. Wynn-Euell, Esquire
1629 K Street, NW, Suite 300
Washington, DC 20006
Mindy Leon, Esquire
P.O. Box 162
Annandale, VA 22203
Todd S. Kim, Esquire
Solicitor General - DC
pii
Notice: T his opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. l0-FS-l556, l0-FS-l55'7, l0-FS~l558,
l0-FS-l559, l0~FS-l560 & l0-FS-l56l
INRED.S.,K.l\/I., B.S.,
R.S., T.S. & P.S.;
J.M., APPELLANT.
Appeals from the Superior Court
of the District of Columbia
NEG-334-10, NEG-336-l0, NEG-337-l0,
NEG-338-l0, NEG-339-l0 & NEG-340-l0
(Hon. Lori E. Parker, Magistrate Judge)
(Hon. Jeanette Jackson Clark, Reviewing Judge)
(Argued March 8, 2012 Decided September 20, 20l2)
As Amended on Rehearing March 13, 2014
Leslie J. Susskz`na’, appointed by the court, for appellant.
Mindy Le0n, appointed by the court, Guardian ad Litem for appellees D.S.,
K.l\/l, B.S., R.S., T.S. & P.S., filed a statement in lieu of brief.
Beverli B. V. Wynn-Euell, appointed by the court, for appellee V.S., filed a
statement in lieu of brief.
Dana K. Rubin, with whom Irvz`n Nathan, Attomey General for the District
of Columbia, and Todd S. Kim, Solicitor General, were on the brief, for appellee.
Before BLAcKBURNE-Rlosrzv and BECKWITH, Associate Judges, and
FERREN, Senior Jua’ge.
BECKWITH, Assocz'ate Jadge: This case involves the ardent yet unsuccessful
effort of an unwed biological father of six children to keep these children after
their mother’s abuse of them led first to their removal from her home, then to her
stipulation that they were neglected, and ultimately to their commitment to the
District of Columbia Child and Farnily Services Agency (CFSA) over the father’s
objections We concluded in an opinion issued after our initial hearing of this case
that the trial court’s determination that it was in these children’s best interest to be
committed to CFSA for up to two years failed sufficiently to take into account a fit
parent’s right to presumptive custody_a right that applies in temporary custody
determinations in neglect proceedings as well as in cases involving the termination
of parental rights. In re J.F., 615 A.2d 594, 598 (D.C. 1992). We therefore
reversed the trial court’s order committing the children to CFSA and remanded to
the trial court for reconsideration of the appropriate disposition under the correct
legal standards. See In re D.S., 52 A.3d 887 (D.C. 2012). On rehearing, we issued
a separate opinion clarifying why our case law mandates the clear-and-convincing-
evidence standard for the disposition-for temporary custody_in this neglect
case. See In re D.S., 60 A.3d 1225 (D.C. 2013).
On consideration of the government’s second petition for rehearing, we now
grant rehearing again and issue this amended opinion in place of the prior two
opinions in this case. We reiterate our holding-this time with additional
explanation of its underlying rationalel-that the trial court failed to give real
weight to the principles, well established in our cases and our law, that a "child’s
best interest is presumptively served by being with a parent, provided that the
parent is not abusive or otherwise unfit," In re S.G., 581 A.2d 771, 781 (D.C.
1990), that "it is generally preferable to leave a child in his or her own home,"
D.C. Code § 16-2320 (a) (20l2 Repl.),z and that the right to presumptive custody
of a fit, unwed, noncustodial father who has grasped the opportunity to be involved
in his child’s life can be overridden only by a showing by clear and convincing
evidence that it is in the best interest of the child to be placed with someone else.
I. Factual and Procedural History
On June l, 2010, CFSA received a hotline tip reporting that four-year-old
P.S. had sustained an eye injury and had told staff at her school that her mother,
V.S., had hit her in the face with a boot when P.S. would not stop crying. That
l The revisions appear primarily in Part ll.A.l, Part Il.A.2, and the
Conclusion.
2 All sections of the D.C. Code cited to in this opinion are to the 2012 Repl.
version unless otherwise specified
day, a CFSA social worker conducted interviews with P.S. and her five siblings--
eleven-year-old K.M.; nine-year-old B.S.; R.S., who was two weeks shy of his
eighth birthday; and six-year-old twins D.S. and T.S. The agency determined that
immediate removal from the mother’s home was necessary and placed the children
in three different foster homes after P.S. told the social worker that "mommy hit
[her] with a boot," K.S. reported that her mother "still hits [her]" and had
previously punched her in the eye, several of the children stated that their mother
hit them with a belt, and a medical examination revealed that P.S. had unexplained
marks on her legs and scars on her buttocks that she said were caused by her
mother hitting her with a broom. CFSA notified the mother that the children had
been removed from her home and that a family team meeting would be held in two
days, but the agency failed to locate the children’s father, J.M. The mother and
several of the children told the social worker that the father was in the hospital, but
they did not know which hospital.
From the outset CFSA received information that the children’s father did not
live with the children at their mother’s home but that he had a significant
relationship with them. R.S. told the investigator that his father did not live at
home, and K.M. added that the siblings stayed with their father every weekend,
Friday through Sunday. The children’s mother also told the investigator that the
father was involved with the children prior to his hospitalization. K.M., R.S., and
B.S. each said that they felt safe with their father--R.S. specifically said "my
daddy keeps me safe"--while B.S. said he "sometimes" felt safe with his mother
and K.M. and R.S. said they did not feel safe with her.
ln the two days following the children’s removal, CFSA still failed to locate
the father to notify him of the June 3, 2010, family team meeting. The father
nevertheless found out about the meeting and participated over the telephone in the
parties’ discussion of the abuse and neglect allegations and the services that were
available for the children.
Over the course of the next three months, the children’s parents took part in
four hearings pertaining to the neglect proceedings: the initial hearing on June 4,
2010, at which the government served the parents with petitions alleging that the
children were neglected and the father acknowledged paternity of all six children;
the pretrial hearing on July 30, 2010; the August 12, 20l2, hearing at which the
mother stipulated to the children’s neglect and the magistrate judge adjudicated all
six children to be neglected; and the disposition hearing on August 27, 2010, at
which the court committed the children to the custody of CFSA for at least two
years. Throughout these proceedings, which were presided over by Superior Court
l\/lagistrate Judge Lori Parker, the father repeatedly requested immediate release of
all six of his children into his custody.
At the initial hearing, which the father attended after having been released
from the hospital that morning, a dispute immediately arose over the questions
whether the father lived with the mother and children and, if he lived somewhere
else, whether the eldest child, K.M., lived with him. Notwithstanding the
children’s unequivocal indications to the contrary during their interviews, the
government’s petition indicated-and the government maintained at the hearing-
that the entire family lived together at the mother’s home on Alabama Avenue.3
Yet the Guardian ad Litem (GAL) noted that when she had spoken to R.S. and B.S.
the night before the hearing, "they definitely spoke of two[] different homes." And
with respect to K.l\/l.’s address, although the GAL said that K.M. herself referred to
her mother’s house as "home," both parents indicated that she lived with her father
and was listed on his lease, and the father’s counsel said he was "prepared to
prove" that she had been living with her father and asked that K.M. be retumed to
3 The petitions also stated that a CFSA social worker had been unable to
speak with the father because she had not determined where he was hospitalized.
his care immediately. The magistrate judge did not take any evidence or resolve
the dispute over where K.M. lived, but ordered the government to investigate the
father’s address. The government later amended the neglect petition to reflect the
father’s correct address.
Also at the initial hearing, the mother waived her right to a probable cause
hearing. The father explicitly stated that he was not waiving a probable cause
hearing, but did not object to the mother’s waiver. The father’s attomey argued
that the government’s efforts to prevent removal of the children were not
reasonable because the father "was available to the agency for further
investigation" even while hospitalized, "he is here today at the time that the Court
is making the decision with respect to removal," and he "is ready, willing, and able
to take care of the children." The magistrate judge found that, in light of the
father’s initial unavailability and the nature of P.S.’s injury, the govemment’s
efforts to prevent removal-efforts it was required by law to demonstrate-were
reasonable.4 Finally, over the father’s strong objections, and despite the GAL’s
4 Our law requires the family court to determine whether the government
made "reasonable efforts" to prevent removal of the child from the home. D.C.
Code § 16-2312 (d)(?>). Relatedly, D.C. Code § 16-2310 (b) states that a child
cannot be placed in shelter care unless it is clear that shelter care is required to
(continued. . .)
statement that "the boys" told her "they love going to dad" and that "severalof the
children . . . express[ed] feeling safe with their father," the court adopted the
government’s recommendation that the father be allowed only supervised visitation
with his children, stating that CFSA needed time "to determine that unsupervised
visits would be in the children’s best interest."
When the parties reconvened on July 30, 2010, for a pretrial hearing, the
magistrate judge, who had in the interim already rejected the father’s motion for
reconsideration of the court’s ruling rejecting his request for custody of his
children, also rejected the father’s renewed request for liberal unsupervised
visitation. The court did so in "an abundance of caution" after the government and
the GAL expressed concerns about the father’s health and the children’s extensive
tooth decay. The father’s counsel objected to the lack of notice and opportunity to
respond to new allegations that both parents had neglected the children’s dental
health,§ and complained that the government’s requests to restrict the father’s
(. . .continued)
protect the child or because he has no parent or other person to care for him and
"no alternative resources or arrangements are available to the family that would
adequately safeguard the child without requiring removal." The reasonable efforts
requirement is discussed in further detail infra at 37-38.
5 ln the parties’ joint pretrial statement, the GAL contended that the parents
(continued. . .)
parental rights should be based on "more than just the fact that they have concerns"
and the govemment should have to present "facts upon which the Court can rest its
ruling." The government responded that it was important for the judge to have "a
total mosaic of what’s been going on in this family" and "all information that it
deems necessary in order to make a decision as to whether or not these children
have been abused or neglected."
On August 12, 2010, the magistrate judge accepted the mother’s stipulation
of neglect as to each of the children and adjudicated all six children neglected. The
father attended the proceeding and did not object.
The disposition hearing was held on August 27, 2010. The government and
GAL recommended commitment of the children to CFSA with a goal of
reunification by June 1, 2011. By this point, the children had for several weeks
( . . .continued)
"failed to provide proper parental care necessary to protect the health of their
children," specifically noting the children’s need for treatment for serious tooth
decay. Arguing that this was "a whole new topic of neglect" "only two weeks
away from trial," the father asked that the court order the govemment to proceed to
trial on the original petitions. After a discussion of the necessity to fonnally
amend the petition, the government informed the parties on the record that the
petition now included charges relating to dental neglect. The petitions were never
formally amended. ‘
10
been living at the Maryland home of K.V., the children’s paternal aunt and foster
care provider, and the govemment asked the magistrate judge to maintain the
supervised visitation arrangement. The government and GAL continued to oppose
granting custody of the children to the father--including the father’s latest request
that the children be released to him under protective supervision--based upon
ongoing concerns about the father’s lung disease,é his problems controlling anger,7
and the adequacy of his home,g and upon the government’s view that "[t]here is
6 Throughout these proceedings, the govemment and GAL raised concerns
about the father’s lung condition and the fact that he remained seated during at
least one of his supervised visits with his children. The father’s attomey disputed a
claim in a pretrial report that the father had to be hospitalized monthly, asserting
that his lung condition was under control, that he was capable of "actively
parenting his children," and that it was appropriate to remain seated during visits in
which everyone else was seated. With respect to the government’s concerns about
his "ability to monitor such active kids," the father himself stated that "we go
walking," "we go to the store or the playground" that was right outside his door,
and "l have all day to watch them play."
7 The GAL stated, for example, that she had witnessed some "anger
management problems," including a voice message the father left for his sister,
K.V., in which he used profanity when referring to the children. K.V. called the
outburst "an isolated incident" and stated that her brother had not used profanity in
front of the children.
8 The govemment objected to the father’s request for release of his children
under protective supervision based in part upon concern "as to whether or not [the
father’s] current housing situation would support all six of the children." While a
social worker had visited the father’s apartment, Della Hoffman, the ongoing social
worker on the case, stated at the disposition hearing that she had not been to the
(continued. . .)
11
still very little information known about Mr. M."
Acknowledging the concerns that had been expressed regarding the father’s
health and the adequacy of space in his apartment, the magistrate judge committed
the children to the care of CFSA for a period not to exceed two years with the
future goal of reunification with a parent, denied again the father’s request for
unsupervised visitation, and ordered the father to submit to a mental health
evaluation.9 The father filed a motion for review of the shelter care order, the
visitation order, and the disposition, and on November 29, 2010, Associate Judge
Jeannette Clark issued an order affirming the decision of the magistrate judge. The
father now appeals from that order.
(. . .continued)
father’s apartment but that she "believe[d]" it was "a two or a three bedroom"
apartment. Almost three months after the children’s removal from their mother’s
home, the government still claimed to have insufficient information to allow the
father to have unsupervised visits, no less custody of his children. For his part, the
father stated at the hearing that he had "taken care of [his] kids before we came
into this court system."
9 The father had opposed the order that he undergo psychological testing,
asserting that his mental competence had never been raised as an issue in this case,
that the govemment was on a "fishing expedition," and that "there is no showing
that he is an unfit parent and there is no basis to have a mental health evaluation of
him." The govemment argued, among other things, that the father’s anger
management issues justified the request.
level
12
II. Analysis
On appeal, J.M. challenges the trial court’s order committing his children to
CFSA in the absence of any proof that he was an unfit parent and, he claims,
contrary to his constitutional due process rights and to the statutory presumption
recognizing "that it is generally preferable to leave a child in his or her own
home." D.C. Code §16-2320 (a). He also argues that the trial court abused its
discretion in the way it conducted the initial hearing at which the court ordered the
children to be placed in shelter care pending the disposition hearing,l° and that it
erred in imposing supervised visitation, particularly when he was not involved in
the physical abuse that led to their removal and when he routinely had the children
at his home on weekends.
A. The Father’s Challenge to the Children’s Commitment to CFSA
Specifically, the father argues that he was denied a probable cause
hearing, that he was denied the right to offer testimony, that the court’s decision to
place the children in shelter care was legal error and factually unsupported, and
that the court’s finding that the government made reasonable efforts to prevent
placement of the children outside the home was based on improper factors.
13
1. Governing principles
We have long recognized that neglect statutes that allow the state to
intervene on a child’s behalf are remedial and "should be liberally construed to
enable the court to carry out its obligations as parens patrz`ae." In re S.G., 581
A.2d 771, 778 (D.C. 1990). The purpose of the state’s intervention as parens
patriae is to promote the child’s best interest, which this court has sometimes
characterized as "paramount." In re S.K., 564 A.2d 1382, 1388 (D.C. 1989)
(Schwelb, J., concurring in part and dissenting in part).
This requirement to consider the "best interest" of the child is dictated by
the neglect statute, D.C. Code § 16-2320 (a), which states that "[i]f a child is found
to be neglected," the court may order any number of possible dispositions, "which
will be in the best interest of the child."“ We have noted that the best interest
standard "does not contain precise meaning," and "given the multitude of varied
factual situations which must be embraced by such a standard, it must of necessity
n The possible dispositions include retuming the child to the care of his
parent or guardian, protective supervision, placing the child with a third-party
provider (including an agency facility or foster care), commitment of the child to a
treatment facility, termination of the parental rights and adoption, or any other
disposition permitted by law that serves the best interests of the child. D.C. Code
§ 16-2320 (a).
14
contain certain imprecision and elasticity." In re J.S.R., 374 A.2d 860, 863 (D.C.
1977) (citations omitted); see also ]n re NMS., 347 A.2d 924, 927 (D.C. 1975)
(stating that "best interest is hardly an expression of precise meaning"). "['l`]he
standard ‘best interest of the child’ requires the judge, recognizing human f`railty
and man's limitations with respect to forecasting the future course of human events,
to make an informed and rational judgment, free of bias and favor, as to the least
detrimental of the available alternatives." In re J.S.R., 374 A.2d at 863 (citing In
re Adoption ofTachick, 210 N.W.2d 865 (Wis. 1973)).
The trial court’s power to commit children to the care of CFSA in order to
protect their best interests is therefore broad. But it is not unbounded.
As for the breadth of the court’s power, it is true, for example, that the
child’s interest, not the parents’ conduct, is the overriding concern in a neglect
proceeding. "[W]e have recognized that the relevant focus for the court in neglect
proceedings is the children’s condition, not parental culpability." 1n re T.G., 684
A.2d 786, 789 (D.C. 1996) (citation and internal quotation marks omitted). lt is
also true that "[n]othing in the statute requires that a finding of neglect must first
have been entered against a non-custodial parent before the court may order a
disposition over that parent’s objection." 1n re S.G., 581 A.2d at 784; see also In
15
re J.W, 837 A.2d 40, 45-46 (D.C. 2003) (stating that the trial court may still
adjudicate the children neglected over the father’s objection to the mother’s
stipulation because the focus of the court is the children’s condition, not the
father’s culpability); In re B.C., 582 A.2d 1196, 1198 (D.C. 1990) ("The father’s
aversion to the potential personal implication of the court’s finding that his
children are neglected children is not the relevant issue.").
Yet it is equally well established that what is in a child’s best interest is
informed by venerable principles that recognize a natural parent’s right to develop
a relationship with his child. These principles have compelled this court to
conclude that a parental preference long recognized in cases involving termination
of parental rights also applies to the temporary placement of a neglected child
under D.C. Code § 16-2320. See In re .I.F, 615 A.2d 594, 598 (D.C. 1992)
(reaffinning that the parental preference applies to temporary custody orders); In re
S.G., 581 A.2d at 786 (Rogers, C.J., and Ferren, J., concurring).
The presumption is spelled out expressly in the neglect statute, which states
that in abuse and neglect proceedings in the District of Columbia, it "shall be
presumed that it is generally preferable to leave a child in his or her own home,"
D.C. Code § 16-2320 (a), and which also precludes placing a child with a relative
16
or other person without a finding that "the child cannot be protected in the home
and there is an available placement likely to be less damaging to the child than the
child’s own home." D.C. Code § 16-2320 (a)(3)(C). The statute thus
"incorporate[s] the basic principle underlying the parental preference, namely, that
a child’s best interests usually will be to be in the custody of his or her natural
parent or parent." In re S.G., 581 A.2d at 786 (Rogers, C.J., and Ferren, J.
concurring); see also In re S.K., 564 A.2d 1382, 1387 (D.C. 1989) (Schwelb, J.
concurring in part and dissenting in part) (stating that the "child’s best interest is
presumptively served by being with a parent, provided that the parent is not
abusive or otherwise unfit") (citation omitted).
ln addition to its statutory footing, the parental presumption has roots in the
U.S. Constitution. The Supreme Court has recognized the constitutional
protections afforded to parents to "establish a home and bring up children," Meyer
v. Nebraska, 262 U.S. 390, 399 (1923), to "direct the upbringing and education of
children," Pz`erce v. Soc ’y of Sisters of the Holy Names ofJesus & Mary, 268 U.S.
510, 534 (1925), and to direct the "care, custody, and management of their child,"
Santosky v. Kramer, 455 U.S. 745, 753 (1982). This court has made clear that a
noncustodial father has a "constitutionally protected ‘opportunity interest’ in
17
developing a relationship with his child." See, e.g. Appeal of HR., 581 A.2d 1141,
1143 (D.C. 1990) (per curiam) (citing Lehr v. Robertson, 463 U.S. 248 (1983)); In
re J.F., 615 A.2d at 597. Accordingly, "an unwed father who demonstrated a full
commitment to the responsibilities of parenthood by coming forward to participate
in the rearing of his child . . . acquires substantial protection under the Due Process
Clause." Id. at 597 (citation and internal quotation marks omitted). Having
expressed concern that "temporary placement of a neglected child can substantially
interfere with a natural parent’s right to develop a relationship with a child," this
court has recognized that there are "important reasons" that "the procedural
protection of the Due Process Clause should extend to disposition proceedings
involving the placement of a neglected child pursuant to D.C. Code § 16-2320."
Id. at 598 (citing In re S.G., 581 A.2d at 786 (Rogers, C.J., and Ferren, J.,
concurring)).
2. The Parental Presumption in Analogous Cases
On several occasions this court has considered noncustodial fathers’
challenges to the commitment of their children after neglect findings stemming
from abuse or neglect occurring in the mother’s home. This precedent
demonstrates the importance of explicit and genuine accommodation of the
18
parental presumption at the disposition stage of neglect proceedings in cases
involving fit parents who have been involved in the lives of their children prior to
the neglect adjudication.
ln 1n re S.G., 581 A.2d 771, a child was adjudicated to have been neglected
by her mother and stepfather after she was sexually abused by her stepfather. The
child’s natural father appealed the trial court’s decision to grant custody to the
child’s maternal grandmother. Noting "the reality that such [temporary custody]
orders may effectively become permanent as a result of the delays attendant to
litigation and appeal," the court held-~in a two-judge concurrence that constituted
the opinion of the court on the issue of temporary custodylz- that "[t]here can be
no doubt that the [parental] presumption applies" to the temporary placement of
children and the trial judge must develop "transitional arrangements aimed at
returning the child to his or her natural parent or parents whenever a temporary
custody order placing the child in the custody of a nonparent is required." [d. at
12 Although some of the relevant sections of the opinion in In re S.G.
appear in a concurrence, the court noted that "[t]he concurring opinion represents
the opinion of the court with respect to the issue addressed herein," 581 A.2d at
786 n.*, namely, the application of the parental presumption to fit noncustodial
parents.
19
786-87 (Rogers, C.J., and Ferren, J., concurring).
As for the standard of proof required to rebut this parental presumption, the
two~judge majority concluded that the trial judge in that case had "properly
proceeded" in applying the parental presumption, observing that the judge had
"found by clear and convincing evidence that S.G.’s best interests for the
immediate future lay in remaining" where she had always lived with her siblings
and grandmother rather than with her father in another city. 13 In re S. G., 581 A.2d
at 786-87. Judge Schwelb stated for himself that "assum[ing], without deciding,"
that the presumption applied to a temporary placement of a neglected child, it had
been "effectively rebutted" because the trial court had found it rebutted by clear
and convincing evidence. Ia’. at 781; see also z'd. at 785 (concluding that the trial
court’s application of the elear-and-convincing-evidence standard accorded "the
father’s presumptive rights . . . the requisite consideration"). In converting Judge
13 The court concluded that the father in that case was not entitled to the
parental presumption because he had failed to grasp his opportunity interest by
long ago surrendering custody of the child to the mother and never seeking to
regain it prior to the neglect finding Had the father not relinquished his
opportunity interest, this court stated, the trial court "would have an insufficient
factual basis for determining where S.G.’s best interest lay" because "the judge
never made any findings regarding the father’s fitness." In re S.G., 581 A.2d at
786-87.
20
Schwelb’s mere assumption into a holding that the parental presumption applies to
temporary custody, the majority in In re S.G. did not explicitly discuss the
evidentiary standard required for rebutting the presumption, although all three
members of the panel acknowledged the trial court’s use of the clear-and-
convincing standard. ln doing so, the court focused upon the lasting prejudice to a
noncustodial parent once the child begins bonding with a different custodian--an
insight that signified that the parental preference, when applied to a neglect
disposition, incorporated the same clear-and-convincing-evidence standard that is
so critical to forestalling such prejudice in the context of permanent custody
decisions.
Two years later, in In re J.F, 615 A.2d 594-perhaps the case that is closest
to the circumstances in the present case-this court stated more directly what it
strongly implied in In re S.G. ln In re J.F, an unwed father sought custody of his
son when neglect proceedings were initiated against the child’s mother and the
mother subsequently stipulated that the child was neglected. Ia’. at 595. The father
was not the custodial parent at the time of government involvement, but had
substantially supported the child throughout his life. Ia’. The trial court rejected
the father’s request for custody of the child and ordered that custody be given to
21
the child’s grandmother, at whose house the child had lived for much of his life,
usually with his mother. Ia’. This court reversed the orders granting custody to the
grandmother and remanded to the trial court for further proceedings, noting that the
judge had "fail[ed] to recognize the constitutionally protected interest at stake"
when she stated "that she did not need to decide the rights of the adult parties,
since the best interests of the child was the issue." Ia’. at 595, 598. Reviewing a
litany of reasons the trial judge’s order violated the father’s statutory and due
process rights, the court stated: "The judge also did not acknowledge, much less
address, the presumption in favor of a fit parent. No express finding was made, by
clear and convincing evidence, that the father was unfit." Ia’. at 598 (citation
omitted). The court’s decision in In re J.F. to construe "the presumption" at issue
as a statutory presumption with constitutional underpinnings that could only be
rebutted by a standard more stringent than a straightforward best-interest
determination followed logically from In re S. G. 14
14 As our prior cases make clear, the parental presumption is inherent in the
natural parent, subject to nullification by a government showing of unfitness. See,
e.g., In re S.M, 985 A.2d 413, 418-419 (D.C. 2009) (noting that the trial court did
not "find that [the father] was unfit so as to negate by itself the presumption"); z'd.
at 417 (noting that "application of the statute must take into account the
presumption that the child’s best interest will be served by placing the child with
(continued. . .)
22
This court again grappled with a placement decision appealed by a fit
noncustodial father in In re L.J.T., 608 A.2d 1213 (D.C. 1992). ln that case, the
mother, "previously found unfit, had reclaimed her suitability as custodian
sufficient to be entrusted with her child under court supervision." Ia’. at 1216. The
case therefore involved the respective interests of a fit noncustodial father and a
custodial mother who had demonstrated her fitness, rather than a fit parent’s
challenge to an order granting custody to a nonparent or committing his children to
the state’s custody. This court upheld the child’s placement with the mother,
noting that the trial court "took proper account of [the father’s] status as a fit, non-
custodial natural father" and "explicitly addressed [his fitness] in the home study
before the court." Ia’. Thus, where the father "received notice, an opportunity to
be heard, and ample consideration at the hearings, the judge’s decision, supported
(. . .continued)
his natural parent, provided the parent has not been proved unfit"). We do not,
moreover, read the J.F. decision to require clear and convincing evidence of the
father’s unfitness_a question that is not, in any event, an issue in this appeal, and
we express no opinion on the evidentiary standard for determining fitness. The
standard we apply here, as stated in the context of an adoption case, is this: "When
a fit, unwed, noncustodial father has seized his opportunity interest, his resulting
right to presumptive custody ‘can be overridden only by a showing by clear and
convincing evidence that it is in the best interest of the child to be placed with
unrelated persons."’ In re C.L.O., 41 A.3d 502, 512 (D.C. 2012) (quoting ]n re
S.M., 985 A.2d at 417).
23
by substantial evidence, to place the child with the natural mother did not violate
[the father’s] constitutional rights." Ia’.
These decisions establish that a parental presumption applies in temporary
custody decisions just as in permanent orders and must be given significant weight.
See In re J.F., 615 A.2d at 598; In re S.G., 581 A.2d at 786 (Rogers, C.J., and
Ferren, J., concurring). This case law also firmly establishes that when a fit
parent15 exercises his or her opportunity interest,16 the trial court can deem that
15 The District of Columbia applies a broad and flexible definition of
fitness, recognizing "many varying degrees of fitness." In re N.MS., 347 A.2d
924, 927 (D.C. 1975); see also Appeal of H.R., 581 A.2d at 1178 (suggesting
mental illness, violence, "serious emotional problems," and "history of alcohol
abuse and an inability to hold jobs" as justifications for a finding of unfitness). Cf
Estate of Williams, 922 S.W.2d 422, 425 (Mo. Ct. App. 1996) ("lt appears that
‘unfit’ is given a broad definition in child custody matters and courts are given
considerable discretion in applying that term."). Other states have employed a
variety of judicially crafted definitions. See, e.g., Petz`tz'on of New England Home
for Lz`ttle Wanderers, 328 N.E.2d 854, 863 (Mass. 1975) ("grievous shortcomings
or handicaps that would put the child’s welfare in the family milieu much at
hazard"); Rz`tter v. Rz'tter, 450 N.W.2d 204, 210 (Neb. 1990) ("a personal
deficiency or incapacity which has prevented, or will probably prevent,
performance of a reasonable parental obligation in child rearing and which has
caused, or probably will result in, detriment to a child’s well-being"); In Interest of
Kerns, 594 P.2d 187, 193 (Kan. 1979) (surveying the various definitions of
unfitness used by Kansas courts).
16 Appeal of H.R., supra, contains a comprehensive discussion of what it
means for a noncustodial parent to have "grasped his opportunity interest." 581
A.2d at 1159-65.
24
preference rebutted only by clear and convincing evidence that the best interest of
the child would be better served if the child were placed elsewhere. In re J.F., 615
A.2d at 598; 1n re S.G., 581 A.2d at 781, 785; id. at 786 (Rogers, C.J., and Ferren.,
J., concurring).17 Finally, the trial court must afford the noncustodial parent due
17 In re J.F. and In re S.G. did not put it in these terms, but in seeking to
interpret the parental preference of D.C. Code § 16-2320 (a) in a way that ensures
its constitutionality in the absence of an express statutory standard, we find in the
principle of constitutional avoidance the justification for the presumption in our
case law that a fit parent who has grasped his opportunity interest will be awarded
temporary custody of his children absent clear and convincing evidence that
placement with the CFSA is in the children’s best interests. See Mack v. Unz`ted
States, 6 A.3d 1224, 1233-34 (D.C. 2010) ("[T]he canon of constitutional
avoidance ‘is an interpretive tool, counseling that ambiguous statutory language be
construed to avoid serious constitutional doubts."’ (quoting FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 516 (2009)); accord Ea'wara' J. DeBartolo Corp. v.
Floria’a Gulf Coast Bla’g. & Const. Traa’es Council, 485 U.S. 568, 575 (1988)
("[W]here an otherwise acceptable construction of a statute would raise serious
constitutional problems, the Court will construe the statute to avoid such problems
unless such construction is plainly contrary to the intent of Congress."). As our
prior decisions have recognized, the time between the decisions on temporary and
pennanent custody can be substantial, and the considerable bonding between the
third-party custodian and the child will almost inevitably give that custodian an
advantage over the noncustodial father in a best interest analysis at the time
permanent custody is determined. Under these circumstances, a serious
constitutional problem arises with respect to whether a "clear and convincing" or a
lesser preponderance standard should apply to a period of time that may seriously
prejudice a fit parent’s presumptive right to permanent custody in the event he is
deprived of temporary custody. See In re S.G., 581 A.2d at 786. Because it is
typically not possible to discem the length of the interval between temporary and
permanent custody at the time temporary custody is awarded, and it is therefore not
possible to identify a constitutional limitation on the award of temporary custody
(continued. . .)
25
process, including notice, an opportunity to be heard, and full consideration
supported by substantial evidence. 1n re L.J. T., 608 A.2d at 1216.
The govemment has argued on rehearing that In re S.G. and In re J.F. could
not overrule several earlier decisions that hold that the preponderance standard
applies in neglect proceedings. None of the cases it cites, however, involves
anything akin to the circumstances here, in which a noncustodial father who has a
close ongoing relationship with his children, who was not the subject of the neglect
petition, and who has not been found to be unfit asked the court to place those
children with him.18 Our use of the c1ear-and-convincing-evidence standard also
does not conflict with In re A.G., 900 A.2d 677 (D.C. 2006), where this court
(. . .continued)
in every case, the likelihood of a constitutional issue arising is nonetheless
sufficiently strong that we should construe the statute by applying a policy that
would assure its constitutionality-the clear and convincing standard when a fit
natural father who has seized his opportunity interest seeks custody.
18 See In re B.K., 429 A.2d 1331, 1333 (D.C. 1981) (reviewing only the
neglect adjudication, not the disposition, in a case in which both parents were
neglectful); In re N.H., 569 A.2d 1179, 1181-83 (D.C. 1990) (reviewing a mother’s
challenge to a neglect finding where no father was involved); In re L.E.J., 465
A.2d 374, 375-377 (D.C. 1983) (same); see also In re M.D., 602 A.2d 109, 115
n.17 (D.C. 1992) (reversing the denial of visitation rights to a father where both
parents had stipulated to the child’s neglect); In re K.O.W, 774 A.2d 296, 304
(D.C. 2001) (reviewing an order depriving a father of any visitation with his sons).
26
held-well more than a decade after S.G. and J.F.--that the preponderance
standard governed the determination of custody in a guardianship proceeding
following a finding of neglect. This court accepted the preponderance standard
rather than insisting on the clear and convincing evidence required by statute for
proceedings that wholly terminate parental rights. We justified this ruling by
pointing out that the entry of a guardianship order does not terminate many of the
natural parents’ important rights, such as the right to visitation, the right to
determine the child’s religious affiliation, and the right of the child to inherit from
his parents. Ia’. at 681. But we drew this distinction in a context fundamentally
unlike the one in this case. The father’s challenge in In re A.G. was limited to his
status as a natural father per se; it did not involve a request for custody by a fit
parent who had grasped his opportunity interest_a status, potentially true in this
case, entitling the father to the strong presumption of custody rebuttable only by
clear and convincing evidence.19 1n sum, the critical distinction between this case
19 ln In re A.G., this court expressly declined to reach, as unnecessary, the
govemment’s final argument that the father’s opposition to the guardianship
petition lacked merit because he was unfit and had not seized his opportunity
interest. 900 A.2d at 682 n.8. One might argue that this court, in declining to
address this argument, was drawing a bright line, announcing a preponderance
standard for custody decisions in all neglect proceedings except for those
proposing complete termination of parental rights. Yet because the court did not
(continued. . .)
27
and In re A. G. is the difference between a potentially fit father who may well have
grasped his opportunity interest and one who has not satisfied these two criteria.
Notwithstanding the potential tension between In re A. G. ’s holding and In re
S.G. and In re J.F.’s approval of a more exacting standard of proof in particular
neglect dispositions, the narrowness of the question before the court in In re A.G.
makes that case fully reconcilable with the conclusion that where a noncustodial
father who was not the subject of the neglect petition has satisfied the fundamental
criteria justifying custody, the preponderance standard is insufficient to prevent the
accelerating prejudice against his retention of parental rights once temporary
( . . .continued)
address, let alone come to grips with, the "fitness" and "opportunity" criteria
central to our disposition here--criteria stressed years earlier in 1n re S. G. and In re
J.F._In re A.G. is not binding authority beyond the facts and issues it expressly
addresses. lt is worth noting that three years after In re A.G., this court indicated
that a clear-and-convincing-evidence standard may apply in other guardianship
contexts. "We reiterate, that parents whose parental rights are intact do not lose
the right to have their choice as to their child’s adoption or guardianship being
accorded substantial weight simply because they have not been model parents or
have lost temporary custody of their children." In re T. WM., 964 A.2d 595, 601-
02 n.6 (D.C. 2009) (emphasis added) (reversing trial court’s denial of adoption
petition of natural parents’ chosen caregiver) (intemal quotation marks omitted).
See also id. at 602 (stating that a "parent’s choice of a fit custodian for the child
must be given weighty consideration which can be overcome only by . . . clear and
convincing evidence" (quoting In re T.J., 666 A.2d 1, 11 (D.C. 1995))) (emphasis
added in T. W.M.).
28
custody is awarded to another party.
3. ThevRole of the Parental Presumption at the Disposition
lf this case had arisen in another state, the trial court’s flexibility in crafting
the disposition may have been more limited. Neighboring Maryland, for example,
prohibits the long-tenn commitment of children to a third party when the
allegations of neglect are sustained against only one parent and the other parent is
able and willing to care for the children. Md. Code Ann., Cts. & Jud. Proc. § 3-
819 (West 2001). "A child who has at least one parent willing and able to provide
the child with proper care and attention should not be taken from both parents and
be made a ward ofthe court." In re Russell G., 672 A.2d 109, 114 (l\/ld. 1996); see
also in re sophie s., 391 A.2d 1125, 1133 (ivid. 2006).2° in rho Distriot of
Columbia, however, it is clear that the neglect statute "does not require the court to
211 The parameters of other states’ jurisdiction in circumstances in which a
noncustodial parent seeks custody are discussed in Angela Greene, The Crab
Fisherman and His Children: A Constitutional Compass for the Non-Offending
Parent in Child Protection Cases, 24 Alaska L. Rev. 173, 181-88 (2007); Leslie
loan Harris, Involving Nonresident Fathers in Dependency Cases.' New E]forts,
New Problems, New Solutions, 9 J. L. & Fam. Stud. 281, 304-06 (2007); and Vivek
S. Sankaran, Parens Patriae Run Amuck.' T he Child Welfare System’s Disregard
for the Constitutional Rights of Nonojfending Parents, 82 Temp. L. Rev. 55, 70-77
(2009).
29
place a child with his or her natural parents," 1n re J.F., 615 A.2d at 598, and that
"[t]here conceivably can be circumstances in which clear and convincing evidence
will show that an award of custody to a fit natural parent would be detrimental to
the best interests of the child." Appeal of H.R., 581 A.2d at 1178.
Our task is to determine whether the trial court, in rejecting the father’s
request for custody of his six children and committing them to the care of CFSA,
adequately considered the parental presumption recognized in our decisions and in
the Diotriot of coiumbio codo?‘
21 While we recognize that our review is of the associate judge’s order
affirming the magistrate judge, rather than the ruling of the magistrate judge, "we
do not believe our powers of appellate review are so limited that, in reviewing the
trial court's final order we may not look to the findings and conclusions of the fact
finder on which that ruling is based." In re C.A.B., 4 A.3d 890, 902 (D.C. 2010);
see also id. at 902-903 ("A contrary conclusion would create the need for countless
remands, consuming time and judicial resources, in cases like the present one,
where a magistrate has painstakingly reviewed the record and made comprehensive
findings and conclusions, and an associate judge succinctly affirms."). ln
conducting this review of the trial court’s orders in neglect proceedings, we
employ an abuse-of-discretion standard and evaluate whether the trial court
"exercised its discretion within the range of permissible alternatives, based on all
relevant factors and no improper factor." In re Baby Boy C., 630 A.2d 670, 673
(D.C. 1993) (citing In re R.MG., 454 A.2d 776, 790 (D.C. 1982)). "We then
evaluate whether the decision is supported by substantial reasoning drawn from a
firm factual foundation in the record." 1n re D.I.S., 494 A.2d 1316, 1323 (D.C.
1985) (intemal quotation marks and citations omitted). We review de novo the
legal question whether the trial court applied the proper legal standard. See 1n re
(continued. . .)
30
While the associate judge reviewing the magistrate judge’s adjudication
acknowledged the existence of "a preference toward placing children with their
natural parents," neither judge based the decision to commit the children upon any
finding that the father failed to grasp his opportunity interest, that he was unfit, or
that there was clear and convincing evidence that it was in the children’s best
interest to be placed with someone other than their father. And the record in this
case, with its many unanswered questions and yet-to-be-investigated facts, does
not demonstrate that the court could have readily made such findings. On the
contrary, the indications in the record that the father had been involved in his
children’s lives, that the children spent weekends with him, that they viewed
themselves as having two homes, and that they felt safe with their father at least
hint that he was not incapable of taking care of them. See In re J.F., 615 A.2d at
598-99 (noting that the record in that case did not compel a finding that the father
was unfit to have custody of his child, and "[i]f anything it suggests the contrary (a
matter for trial court consideration on remand)").
At the outset, proper recognition of the parental presumption requires more
( . . .continued)
C.L.O., 41 A.3d at 510; Davis v. United States, 564 A.2d 31, 35 (D.C. 1989) (en
banc).
waco
31
than a verbal allowance that the presumption exists. This court "has expressly
acknowledged the importance of assuring that the trial court ‘explicitly recognized
and accommodated the existence of [the parental] presumption."’ In re J.F., 615
A.2d at 598 (quoting In re S.G., 581 A.2d at 785). When a court is deciding
whether the presumption applies and whether there are grounds for rebutting it, it
should base these decisions on a record worthy of the weight of this decision.
ln neglect proceedings, counsel for the govemment has the "responsibility in
the first instance to take the trouble to investigate the overall family situation and
present an adequate evidentiary picture," a burden that is "commensurate with the
gravity of the petition for intervention in the lives of parent and child that the
[govemment] files." In re A.H., 842 A.2d 674, 685 n.16 (D.C. 2004). And while
the GAL and the lawyers for the parties share this responsibility, the court "ought
not to be passive in the face of what it recognizes is a deficient presentation of
evidence" and should instead "take affirmative steps to ensure that it has enough
evidence before it to make an informed decision." Id. (quoting In re MD., 758
A.2d 27, 34 (D.C. 2000)). Here, while the magistrate judge was presented with a
difficult task of weighing conflicting interests in a case involving six abused
children and some extenuating circumstances, we are not convinced that the
32
magistrate judge or the associate judge applied the parental presumption at the
disposition stage of these proceedings.
At the disposition hearing, the father made repeated requests for custody of
his children, insisted that he was able to care for them, and emphasized the absence
of evidence that he had neglected his children or that he was unfit. He also raised
procedural challenges, claiming, most notably, that he had a lack of notice of, and
a lack of adequate opportunity to respond to, the government’s allegations that the
children had suffered from dental neglect, which had not been part of the initial
petition or the neglect adjudication. Cf In re J.F., 615 A.2d at 598 (finding the
rights of the noncustodial father were violated where, among other things, he was
not given the required notice that a court proceeding would be a dispositional
hearing). ln response, the govemment, the GAL, and the court at times
acknowledged the significance of keeping neglected children in their homes but
accorded no real weight to the father’s presumptive right to care for his children.
The thrust of the magistrate judge’s ultimate ruling, which adopted the
government’s arguments regarding the placement of the children, was that there
was not enough information to allow the children to remain with their father. The
govemment opposed placing the children with their father, and instead asked for
33
commitment, because "we are actually in the same place we were when the
children were removed," meaning tha "[t]here is still very little information
known about Mr. M.," and that the govemment still had concerns about the
father’s health and the adequacy of his housing. instead of recognizing the
presumption that a parent acts in his children’s best interest, taking evidence on
disputed matters of consequence, and requiring the govemment to overcome the
parental presumption with clear and convincing evidence that it would not be in the
children’s best interest to be with their father, the magistrate judge treated the lack
of information as a reason to place the children in the care of someone other than
their father. The magistrate judge then committed the children to CFSA "based on
all the information presented"--which, as we know, the govemment had
characterized as "very little information." The associate judge’s unadorned
affirmance of the magistrate judge’s disposition, which addresses the father’s
constitutional claim in a short discussion focusing primarily upon the order for
supervised visitation, indicates that the father’s right must yield to his children’s
best interest, but does not specify how the evidence in this case defeated the
father’s parental presumption.
Two factors that were the focus of much discussion at the disposition, the
34
father’s housing and his health, warrant particular mention. Throughout these
proceedings the government opposed placing the children with the father-or even
granting the father unsupervised visitation with his children-based in part upon its
concem that the father did not have enough space in his home to accommodate the
children and that his lung condition made it impossible for him to care for six
active children. These are legitimate considerations under D.C. law, and each
could be a relevant factor in the determination whether the govemment presented
clear and convincing evidence that it was in the children’s best interest to be placed
with someone besides their father. 22
The main problem with any serious reliance upon the father’s purportedly
inadequate housing and ill health, however, was that neither was well substantiated
at the time of the disposition hearing The govemment and the GAL gave great
weight to the observation that the father remained sitting throughout a supervised
22 lndeed, two statutes in related family law contexts specifically support
consideration of parental health. D.C. Code § 16-2353, which sets forth factors to
consider when evaluating a termination of parental rights petition, lists "the
physical, mental and emotional health of all individuals involved to the degree that
such affects the welfare of the child, the decisive consideration being the physical,
mental and emotional needs of the child." D.C. Code § 16-2353 (b)(2). And D.C.
Code § 16-914 includes "the mental and physical health of all individuals
involved" in a best interest calculation as it relates to custody determinations
outside of the abuse and neglect sphere. D.C. Code § 16-914 (3)(E).
35
visit with his children, that his lung condition required him to carry an oxygen
tank, and that his apartment only contained two or three bedrooms. Yet these
proffers hardly constitute a sufficient factual basis for deeming the father to be an
unsuitable placement for the children.
And even if the govemment had established more definitively that the
father’s home was too small for six children and that his health was an impediment
to his parenting our cases have cautioned against too heavy reliance upon factors
of this nature when making decisions that result in the removal of children from
the custody of a parent. As "a parent's poverty, ill health, or lack of education or
sophistication, will not alone constitute grounds for termination of parental rights,"
In re J.G., 831 A.2d 992, 1000-01 (D.C. 2003) (emphasis added), nor should these
factors be dispositive in a hearing that can have potentially permanent
consequences.” See 1n re S.G., 581 A.2d at 786 (Rogers, C.J., and Ferren, J.,
concurring). That is particularly true in this case, where prior to the children’s
23 "[O]ur child neglect statute . . . was not intended to provide a procedure
to take the children of the poor and give them to the rich, nor to take the children of
the illiterate and give them to the educated, nor to take the children of the crude
and give them to the cultured, nor to take the children of the weak and sickly and
give them to the strong and healthy." In re J.G., 831 A.2d at 1000 (quoting In re
T. W., 732 A.2d 254, 262 (D.C. 1999)).
36
removal from their mother’s home, the father had no reason to have a home large
enough to accommodate all the children as full-time residents.% The court’s
decision to commit these children based in part upon inconclusive contentions of
this nature reinforces our sense that it overlooked the parental presumption in its
determination of what was in the children’s best interest.
B. The Initial Hearing and the Reasonable Efforts Requirement
Our view that the court failed to apply the parental presumption at the
disposition stage of this case is bolstered by a review of events that preceded the
hearing at which the magistrate judge committed the children to CFSA. Though
our decision to remand this case for reconsideration of the disposition decision
obviates our formal consideration of the father’s claim that he was deprived of his
due process rights at the initial hearing,” early events in this case shed light upon
24 1n any event, we have routinely held that "[f]amily poverty is not a
reason, in and of itself, to find a child neglected, even if it plausibly could be
argued that the child’s best interests would be served by removal to a materially
wealthier home." In re A.H., 842 A.2d 674, 687 (D.C. 2004). Instead, "[w]hen it
is poverty alone that causes an otherwise fit parent to be unable to care for her
child, adequate public or private benefits should and will be made available to the
family[.]" Id.
25 We note, in addition, that the father’s appellate counsel essentially
acknowledged at oral argument what the govemment also emphasized in its
(continued. . .)
37
the court’s subsequent disposition and seemed to set the stage for the continuing
inattention to the father’s presumptive right to the care of his children.
Two statutes make clear that the rights of parents carry significant weight at
the point of the initial shelter care determination. The first, D.C. Code § 16-2310
(b), states that before a child can be placed in shelter care prior to a factfinding or
dispositional hearing, it must be clear that shelter care is required "(1) to protect
the person of the child" or "(2) because the child has no parent, guardian,
custodian, or other person or agency able to provide supervision and care for him,
and the child appears unable to care for himself," and that "(3) no alternative
resources or arrangements are available to the family that would adequately
safeguard the child without requiring removal." D.C. Code § 16-2310 (b). The
second, D.C. Code § 16-2312, requires the family court to determine whether "(A)
[r]easonable efforts were made to prevent or eliminate the need for removal, or, in
the alternative, a determination that the child’s removal from the home is necessary
regardless of any services that could be provided to the child or the child’s family;
(. . . continued)
brief--namely, that the father’s challenges to the initial hearing were rendered
moot by the disposition order. Our disposition in this case likewise makes it
unnecessary for us to address the father’s challenge to the imposition of supervised
visitation, as any additional factfinding on remand may affect matters of visitation.
38
and (B) continuation of the child in the child’s home would be contrary to the
welfare of the child." D.C. Code § 16-2312 (d)(3). These statutes require the
govemment to make a showing that the children’s placement in shelter care was
the only available option to protect the children.
We recognize, as an initial matter, that the mother’s waiver of a probable
cause hearing and her stipulation that the children were neglected had the curious
effect of tuming the trial court’s focus away from the children’s father--in some
ways legitimately, as "the relevant focus for the court in neglect proceedings is the
children’s condition, not parental culpability." In re T.G., 684 A.2d 786, 789 (D.C.
1996) (citation and intemal quotation marks omitted). We also cannot reasonably
fault the government for any initial failure to contemplate placing the children
directly with their father upon their removal from their mother’s home. CFSA had
reason to believe one or more of the children were being physically abused, and all
it knew about the children’s father was that he had been admitted to a hospital and
that no one seemed to know which one.
Yet from the very outset of this case, and at every turn, the father presented
himself as the best placement option for the children and urged the magistrate
judge to grant him custody of his children. When the court denied these requests,
39
he filed a motion to reconsider, and when the court denied that motion, he asked
for custody under protective supervision. At the initial hearing, when the father
was out of the hospital and available to care for the children, his attorney’s very
first statement was to ask that the children be released into the father’s care. The
magistrate judge still found that "the efforts made with this family to prevent
removal were in fact reasonable"% but then specified somewhat differently in the
initial hearing order that due to the extraordinary circumstances_namely, the
injury to P.S.’s eye, the risk that P.S.’s siblings would also be abused, and the
initial inability to locate the father-"the fact that no reasonable efforts were made
is hereby deemed reasonable."
While these findings may satisfy the reasonable efforts requirement of D.C.
Code § 16-2312 (d)(3), it is not clear that they address D.C. Code § 16-2310’s
prohibition on placing a child in shelter care unless there is no parent able to
26 The judge based her finding upon the allegations in the complaint, the
fact that CFSA had convened a family team meeting, the fact that the father was
not "physically available at that time to serve as a resource," and the fact that the
family had had prior contacts with CFSA. Counsel for the father disputed the
significance of the prior contacts and argued that each of the referrals was either
unfounded or inconclusive. The court considered the prior contacts while
explicitly "not taking any position with respect to the outcomes in those cases" and
without resolving the disputed issues.
40
provide supervision and no alternative resources that can be made available to
safeguard the children. In this regard, the govemment appeared to downplay and
then delay confirming the father’s, mother’s, and children’s assertions that the
father lived separately from the family-a claim that was critical to the father’s
request for custody of his children and that the trial court refused to accept without
further investigation by CFSA. The govemment also questioned both the mother’s
and father’s insistence that one of the children, K.M., was already living at her
father’s home at the time of the children’s removal, that her name was on her
father’s lease, and that her name was not on her mother’s lease.” The father’s
attomey, asking that K.M. be returned to the care of her father and that he also be
granted custody of the other children who lived with their mother, stated that
"[t]here are no allegations against him in the petition" and "we’re prepared to
prove" that K.M. lived with her father.
To her credit, the magistrate judge, though finding the govemment’s efforts
reasonable, pressed the agency on many of these matters and urged it to investigate
27 When the govemment indicated at the initial hearing that the mother was
receiving social security payments for K.l\/l., the mother stated that this was not
true and that she did not receive social security, while the father stated that he did
receive social security and that he had K.M.’s papers at home.
41
the father as a placement option. The court nonetheless agreed with the agency
that "it would be contrary to the welfare of all of the children to return home at this
time," noting that the agency needed more time to investigate this issue. These
exchanges exemplify the government’s mindset throughout the early stages of
these proceedings_a mindset that resembled a presumption against the father
rather than a recognition of his heightened interest in the placement of these
children.
III. Conclusion
As in In re J.F., the father here "promptly and continuously asserted his
right to custody of the child[ren]." 615 A.2d at 597 (citing In re S.G., 581 A.2d at
783 n.17). And also as in ln re J.F., the court did not apply the presumption in
favor of the children’s father, did not make any express finding-and was not
asked to make any finding-that their father was unfit, and did not have a record
before it that adequately supported such a finding 615 A.2d at 598-99; cf [n re
S.G., 581 A.2d at 787 (Rogers, C.J. and Ferren, J., concurring) (noting the trial
court’s "insufficient factual basis for determining where [the child’s] best interest
lay"). What is known from the record is that this father was involved in his
children’s lives, that they spent weekends together, that the children viewed
42
themselves as having two different homes, that they felt safe with their father, that
they "love[d] going to dad," and that the father’s sister, who was the children’s
caretaker since they moved from the foster homes, viewed her brother as "a great
father." At the disposition hearing, a social worker stated that the father’s visits
with his children were "going well," that there were "no problems or concerns,"
and that "everybody [was] enjoying visits." While the govemment leveled
allegations regarding the father’s anger management issues, his physical inability
to care for the children, the children’s dental neglect, and the family’s history of
contacts with CFSA, the magistrate judge "never made any findings regarding the
father’s fitness," In re S.G., 581 A.2d at 787 (Rogers, C.J. and Ferren, J.,
concurring), stated that his health "may or may not be one factor to be considered,"
and made the decision to commit the children while leaving many factual disputes
unresolved. ln affirming the order committing the children, the associate judge
likewise never characterized the father as unfit and never specified, if he was fit,
what evidence justified the rebuttal of his right to presumptive custody of his
children.
We conclude that the trial court applied an incorrect legal standard by failing
to give meaningful weight to the parental presumption before it rejected the
43
father’s request for custody of his children and committed them to CFSA. We
therefore reverse the trial court’s order affirming that disposition and remand this
case so that the trial court may incorporate the parental presumption into its
analysis Absent a showing that the father has failed to meet the threshold criteria
for custody, the government must prove by clear and convincing evidence that
awarding him custody would be contrary to the children’s best interest.
So ordered