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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 adoption case, it was not constitutionally required. Therefore, it follows that in a neglect proceeding the Constitution does not require the "clear and convincing evidence" standard.

429 A.2d at 1333. The mother here contends that the decision of the Supreme Court in Santosky v. Kramer, supra, 455 U.S. at 745, commands that we reach a different Conclusion. We disgrace.

Whether the "preponderance of the evidence" burden of proof is constitutionally sufficient depends on the magnitude of the interest in the right which is being infringed. See Santosky v. Kramer, supra, 455 U.S. at 755. As the Supreme Court stated in Addington v. Texas, 441 U.S. 418, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979), "the function of a standard of proof, as the concept is embodied in the Due Process Clause and in the realm of fact-finding, is to instruct the factfinder concerning the degree of confidence our society thinks he [or she] should have in the correctness of factual Conclusions for a particular type of adjudication." Id. at 423 (quoting In re Winship, 397 U.S. 358, 370, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970) (Harlan, J., Concurring)). *fn2

In In re L.E.J., 465 A.2d 374 (D.C. 1983), this court distinguished Santosky v. Kramer:

In Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982), the Supreme Court held that a state must present "clear and convincing" evidence of neglect of abuse before terminating a parent's right to the custody of a child. The higher standard of proof imposed by Santosky, however, need not be met here because this case involves only a temporary suspension, not a permanent deprivation, of parental rights.

465 A.2d at 377 n.5. *fn3 Because the statutory scheme for child neglect involves temporary, third party placement or supervised placement of a child with the parent for a two-year period, followed by annual reviews after notice and hearing and a new determination that the child is neglected, *fn4 we conclude that these procedures accord procedural due process to the parent and the child.


The mother also contends that the medical disclosures by the two doctors who examined her violated her constitutional right to privacy. D.C. Code § 14-307 forbids a physician, surgeon or mental health professional to give testimony without the consent of the person afflicted or of his legal representative. An exception to this general privilege is provided in D.C. Code § 2-1355 for neglect proceedings, however. *fn5 In the trial court the mother argued that only the Mental Health Information Act of 1978, D.C. Code § 62002, *fn6 should apply. *fn7 The trial Judge disagreed and ruled that § 2-1355 applied and made the requisite finding. *fn8 The statutory definition of neglected child includes a child whose parents are unable to discharge their responsibilities because of mental incapacity. D.C. Code § 16-2301 (9)(B) Obviously, to exclude information about the mother's mental condition would deprive the Judge of important information required for a Disposition in the best interests of the child.

The mother contends that she has a fundamental constitutional right of privacy that prevents disclosure of medical information at trial. Contrary to the mother's view, none of the cases on which she relies holds that the right to privacy is absolute. *fn9 Nor, in view of her failure to provide a home for her daughter, is she in a position to argue persuasively that "the child [N.H.] has been held ransom, and the privacy of a mentally and emotionally troubled woman has been jeopardized, in order to force [the mother] to transfer her interests in the custody of her child to someone acceptable to the Department of Human Services." While the mother does not refer in her brief on appeal to § 2-1355, and relies instead on the substantive due process right of privacy, the only issue is whether the interest of the District of Columbia in assuring that the mother is mentally competent to raise her daughter is sufficiently strong to limit the mother's privacy rights. We hold that it is. See In re Embick, 351 Pa. Super. 491, , 506 A.2d 455, 459 n.6 (1986) (Constitutional analysis involves a balancing of competing interests and the court's duty does not end once the individual's interests are identified); Betty J.B. v. Division of Social Services, 460 A.2d 528 (Del. 1983) (parent's right to privacy and confidentiality in certain information must yield when the future well-being of the child is at issue); In re Brenda H., 119 N.H. 382, , 402 A.2d 169, 172 (1979) (courts must exercise extreme caution and must balance the probative value of the evidence against the harm to psychologist-patient relationship); In re Dodge, 29 Wash. App. 486, , 628 P.2d 1343, 1347 (1981) (policy considerations involving custody and welfare of children dictate the need for flexibility in applying technical rules of evidence). Cf. In re S.K., 564 A.2d 1382, slip op. at 16-20 (D.C. 1989) (civil neglect statutes are designed to enable the state to protect children and, in order for the court to determine whether a child's welfare requires intervention, the court must be apprised of all the facts). The statutory scheme is narrowly drawn to minimize the invasion of privacy, *fn10 and we agree with the government that the absence of a statutory physician-patient privilege in child neglect proceedings does not significantly or impermissibly infringe on any privacy right that a parent may have regarding medical information.


Finally, the mother contends that the government has intentionally kept the child away from her for three years "by the ruse of providing emergency shelter care for the child on a temporary basis. . . ." This contention is meritless in view of the compelling state interest in protecting young children from neglect. See In re Cochise Juvenile Action No. 5606-J, 133 Ariz. 157, , 650 P.2d 459, 463 (1982) (en banc). The mother's argument, in substance, is that DHS has conspired to deny her custody of her child. Nothing in the record reveals any willful conduct by DHS to deprive the mother of custody of her daughter. The allegations are unsubstantiated in the record and we find no basis on which to conclude that the statutory scheme impermissibly infringed on the mother's right to custody of her child.

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