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04/23/91 A.H. ET AL. APPELLANTS MATTER BABY GIRL

April 23, 1991

A.H., ET AL., APPELLANTS, IN THE MATTER OF BABY GIRL R.L.


Appeals from the Superior Court of the District of Columbia; Hon. Nan R. Huhn, Trial Judge

Ferren, Steadman, and Farrell, Associate Judges.

The opinion of the court was delivered by: Ferren

On January 25, 1990, the trial court, on its own motion and over the natural parents' objection, extended a neglected child's commitment to the care and custody of the Department of Human Services (DHS) until March 30, 1990. The court did so because the child's existing commitment order was to expire on January 28 and the Corporation Counsel had not yet filed the required motion to extend her commitment. *fn1 On April 3, 1990, thirteen days before the next review hearing was scheduled, but four days after the January 25 commitment order expired, the Corporation Counsel filed the required motion. After the next review hearing on April 16, and again over the natural parents' objection, the court entered another order extending the child's commitment for an additional year nunc pro tunc from January 28, 1990, the original expiration date, to January 28, 1991.

Appellants, the natural parents, contend the trial court lost jurisdiction over the child either when the Corporation Counsel failed to file the required motion to extend commitment by the original expiration date, January 28 (even though the court had acted sua sponte on January 25 to extend the commitment), or when the Corporation Counsel failed to file the motion before the interim custody order expired on March 30. The natural father also claims a violation of due process because he was not given notice of the initial neglect proceeding (to which he had not been a party) and because the court treated him in the January and April 1990 hearings as a neglectful parent by denying him visitation rights. Concluding there has been no loss of jurisdiction and no deprivation of due process, we affirm.

I.

When baby girl R.L. was seven months old, her mother, S.L., then living in a homeless shelter in the District, could no longer care for her and placed her in the emergency care of DHS. Six months later, in October 1986, DHS filed a petition in court alleging R.L. was a neglected child and indicating paternity was "not established." The court issued orders placing the child in shelter care and appointing counsel for her. By December 15, 1986, DHS reports showed the names of two men who could have been the child's natural father. Neither, however, had been given formal notice of the neglect proceeding. On January 28, 1987, in accordance with a stipulation signed by the mother, the court found R.L. to be a neglected child within the meaning of D.C. Code § 16-2301 (9)(B), *fn2 committed her to the care and custody of DHS for a period not to exceed two years, *fn3 barred the child's release to her parents, guardians, or custodian except by court order, and granted the mother reasonable visitation rights.

The court held status review hearings in July and October 1987 and in April and September 1988. *fn4 During that period the child remained with one foster caretaker and "strongly bonded to foster family members." The child's attorney and her social worker attended all the hearings, and her mother's attorney attended all but one of them. After each review, the court issued orders continuing the commitment "pursuant to prior orders." On February 21, 1989 -- three weeks after the commitment order had expired -- the Corporation Counsel filed a motion to extend the child's commitment. After a status hearing on February 23 attended by attorneys for the child and for her mother, the court extended the commitment nunc pro tunc from January 28, 1989 to January 28, 1990.

During the child's initial two-year commitment from January 1987 to January 1989, her mother made only sporadic contact with her; the last visit was in December 1987. In fact, for much of 1988, the child's attorney did not know how to reach the mother and had to obtain the court's permission to notify the mother of the proceedings by posting notice in the Family Division Clerk's office. By February 8, 1989, the child's attorney (who was also her guardian ad litem) moved to terminate the mother's parental rights.

In July 1989, for reasons not clear of record, the court appointed counsel for the two putative fathers DHS had learned about in December 1986. By September 1989 one putative father relinquished his parental rights to R.L. But the attorney for the second putative father, A.H., filed an appearance in the termination of parental rights proceeding, claimed paternity, listed the current address for the child's mother, and agreed to submit to blood tests. The tests confirmed to a 99.03% certainty that A.H. was the child's biological father. On December 8, 1989, the court made A.H. a party to the neglect proceeding. A.H. then filed a petition for writ of habeas corpus asking for release of the child to his custody. The petition was denied.

The court held additional review hearings in June, October, and December 1989. On each occasion attorneys for the child and her mother, as well as the child's social worker, were present, and the court continued the current placement "pursuant to prior orders." At the October 1989 hearing, however, the court, upon learning of the mother's renewed interest in visiting R.L., ordered comprehensive psychological evaluations of the mother and of the child by an independent psychologist, in order to assist the court in determining whether visitation by the mother would be harmful to the child. Visitation was limited to the contacts required by this evaluation process. At the December 1989 review hearing, with the father now a party to the proceeding, the court ordered the father to undergo the same psychological evaluation it had previously ordered for the mother. In connection with that evaluation, the court permitted a carefully supervised visit between the child and her father. The results were to be available in time for the January 1990 review hearing.

Meanwhile, in April 1989, the child had been placed with preadoptive parents, the Rs, and on January 16, 1990, they filed a petition for adoption. Over objections by the natural parents, the trial court conferred party status on the preadoptive parents at the January 1990 hearing in the neglect proceeding. By January 1990, therefore, when the child was four years old, she was involved in three separate proceedings: neglect, termination of parental rights, and adoption.

On January 25, 1990, the trial court held a hearing in the neglect proceeding on the natural parents' requests for visitation -- requests which the child's counsel and the court-appointed psychologist strongly opposed because of the child's traumatic reaction to the December court-ordered visit with her father. In an effort to be fair, the court deferred ruling on visitation until the natural parents had had time to submit their own psychological reports. The court accordingly granted the expert for the natural parents permission to interview the child. Acting sua sponte, the court also entered an order -- over the parents' objection -- extending the child's commitment to DHS until March 30, 1990 because the commitment order was to expire on January 28 and the Corporation Counsel had not filed a motion to extend. See (supra) note 1. A DHS social worker had been present at the hearing on January 25 and had made an oral motion to extend R.L.'s commitment. The court, however, had refused to consider the motion, noting that an Assistant Corporation Counsel had told the court at the December hearing that the office would file the motion on time. The court's frustration with the Corporation Counsel's failure to file the motion was obvious, for the court replied that "as far as I'm concerned, if I have no motion on March 30th, my authority dies."

The March 30, 1990 status hearing, at which the court intended to evaluate the father's fitness for visitation and possible custody of the child, was continued by agreement of the parties until April 16, 1990 after a key witness, the court-appointed psychologist, had become unavailable. The court did not, at that time, issue a corresponding order extending the child's commitment beyond the March 30 expiration date. By March 30, the Corporation Counsel still had not filed the required motion, even though the child's attorney/guardian ad litem had reminded that office of the impending deadline. The next business day, April 2, counsel for the father filed a motion requesting release of the child to the father's care on the ground that the court had lost jurisdiction over the child. The father also called the DHS social worker and requested that the child be readied for release to him because the commitment order had expired on March 30.

On April 3, 1990 the Corporation Counsel filed a motion requesting the court to issue an order extending R.L.'s commitment nunc pro tunc from March 30 to the date of the next hearing, April 16. On April 4, the court issued an order granting the Corporation Counsel's motion finding that extension of the commitment was necessary to protect the welfare of the child. The court, however, strongly admonished the office of the Corporation Counsel for "what can only be characterized as an act of gross negligence in not filing the requested motion to extend commitment." Order of Judge Huhn, April 4, 1990 at 3. On April 13, the Corporation Counsel filed a motion to extend the child's commitment until January 1991. After a hearing on April 16, 1990 concerning the jurisdictional issues raised by the father in his April 2 motion, the court issued an order extending the child's commitment nunc pro tunc from January 28, 1990 to January ...


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