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January 31, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Ronald P. Wertheim, Trial Judge, Hon. Nan R. Huhn, Motions Judge, Hon. Colleen Kollar-Kotelly, Motions Judge, Hon. Richard A. Levie, Motions Judge.

Before Rogers, Chief Judge, Farrell, Associate Judge, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge:

Appellant, T.H., appeals from the determination that her child was a neglected child pursuant to D.C. Code § 16-2301 (9)(B) and (C) (1989 Repl.) on the ground that the statutory scheme violated her constitutional right to due process. Specifically, she maintains that D.C. Code § 16-2317 (1989 Repl.) is unconstitutional because it fails to require proof of neglect by clear and convincing evidence, that D.C. Code § 2-1355 (1988 Repl.) permits use of medical evidence in violation of her right of privacy, and that the statutory procedures are generally violative of her right of privacy to the custody of her child. We affirm.


T.H. gave birth to N.H. on December 22, 1985, at D.C. General Hospital. At the time she had no plans for a home for the child. For that reason and because of the child's medical problems, N.H. remained in the hospital until February 3, 1986. When the child was released from the hospital, the mother took her to live at the home of a cousin. This arrangement lasted only a week, and the mother then requested that the D.C. Department of Human Services (DHS) provide emergency care for the child which was available for a maximum of 90 days. During the 90 days that N.H. was under the protective care of the DHS, the mother was admitted to St. Elizabeth's Hospital on an emergency basis when she was found drunk lying in the street. The child was not returned to her mother after the 90 day period was over.

On November 21, 1986, the District of Columbia filed a petition alleging that N.H. was a neglected child under D.C. Code §§ 16-2301 (9)(B) and (C) because "her mother is unable to discharge her responsibilities to and for the child because of mental illness." On December 10, 1986, Judge Huhn ordered that the child be placed in shelter care, with the provision that "the mother shall be entitled to reasonable rights of supervised visits." (emphasis in original). On January 16, 1987, Judge Kollar-Kotelly ordered the mother to submit to a mental examination and amended the shelter care order to permit the mother two to three supervised visits each month so long as she cooperated fully with the social worker.

The mother filed a motion to end shelter care for N.H., asserting that the child's maternal grandmother was now willing to have the child live in her home and other siblings of the mother--30 year old brother and a 20 year old sister --were also living at the home and could assist in caring for the child. This motion, filed on May 29, 1987, when N.H. was 17 months old, was opposed by the government on the grounds that the mother had a history of mental disorders, having been hospitalized at St. Elizabeth's Hospital at least three times, and had been admitted to emergency care at St. Elizabeth's Hospital as recently as May 21, 1986, after being found drunk and lying in the street, and had left the hospital on July 10, 1986 against medical advice and then failed to continue outpatient psychiatric treatment. The government also asserted that all of the relatives were not living in the grandmother's home and that Dr. Spevak, the doctor who had examined the mother on March 23, 1987, recommended the mother not be given custody of the child because of her mental incapacity. The mother thereafter filed affidavits of three relatives who had volunteered to take custody of the child. The mother also filed a motion to dismiss the neglect petition or to change the burden of proof to require proof by clear and convincing evidence that a child was neglected under the §§ 16-2301 (9)(B) and (C). The child, for whom counsel had been appointed, opposed the motion to end shelter care and the motion to dismiss the neglect petition. Judge Levie denied the mother's motion.

A hearing was held on the neglect petition on January 29, 1988, more than a year after the neglect petition had been filed. *fn1 A social worker testified that the mother did not act like a normal mother toward N.H. and frequently had missed scheduled visits with her daughter. Dr. Vivienne Isaacson, a staff psychiatrist at St. Elizabeth's Hospital, testified that the mother was suffering from "an organic affected disorder, which is a mood disorder associated with organic brain disorder, mixed substance abuse and a history of seizure disorders since childhood." Dr. Spevak, a psychiatrist employed by the DHS, testified that the mother "was a woman with an impaired memory," "effectively unstable," and "was suffering from an organic brain syndrome that significantly impaired her ability to take care of herself, much less anyone who would be primarily dependent upon her." Judge Wertheim found that the mother "suffers from an organic brain syndrome and did so at the time of the petition," that the mother's "mental incapacity effected her ability to care for a child" and that the mother's "conduct with the child indicates an inability to accurately perceive the child's needs and to respond appropriately even in the most elementary way." Judge Wertheim ruled that the government had met its burden of proof by a preponderance of the evidence to show that N.H. was a neglected child within the meaning of D.C. Code § 16-2301 (9)(B) and (C).


On appeal the mother contends that the statutory scheme, and specifically § 16-2317 (c)(2), violates due process because it only requires that a finding of neglect be based on a preponderance of the evidence. She argues that this standard fails to strike a fair balance between her interest as the mother in regaining custody of her daughter, the child's interest in an accurate judgment at trial, and the government's administrative interest in maintaining the preponderance standard as well as its parens patrie obligation to reunite the mother and the child if possible. She maintains that the effect of the neglect determination means it is likely she will never be able to regain custody of her child and, therefore, the standard of proof should be higher than a preponderance of the evidence. She relies principally on Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982).

Unquestionably, "the fundamental liberty interest of natural parents in the care, custody and management of their children does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state." Santosky v. Kramer, supra, 455 U.S. at 753. The right of a natural parent to raise one's child is a fundamental and essential precept which is constitutionally protected. Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972). At the same time, however, the Supreme Court has recognized that this right is not absolute and that the state has both the right and the duty to protect minor children through judicial determinations of their interests. Id.

This court has previously rejected the argument raised by appellant. In In re B.K., 429 A.2d 1331 (D.C. 1981), the court stated:

Appellant, however, argues that because the ruling below separated him from his child, and thus threatens the sanctity of his family, see Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1979) the Constitution requires that the standard of proof be "clear and convincing evidence." In In re: J.S.R., D.C. App., 374 A.2d 860 (1977), we stated that the consequences of a finding that parental consent to an adoption was being withheld contrary to the best interests of the child are "far more severe than those of a finding of neglect." Id. at 864. Nonetheless, we held that, although the higher standard of "clear and convincing evidence" was warranted in the ...

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