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01/03/92 MATTER M.D. V.G.

January 3, 1992

IN THE MATTER OF M.D., V.G., APPELLANT


Appeal from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Trial Judge)

Before Rogers, Chief Judge, Ferren, Associate Judge, and Mack, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: In this appeal, appellant V.G., the natural father of a minor child, M.D., appeals from the order of January 17, 1991, denying him visitation. After denying appellant's motion to dismiss the neglect case, and finding pursuant to the parents' stipulation that the child was neglected, the trial Judge ordered that the conditions of a civil protection order entered June 29, 1990, in a companion intrafamily offense case, would continue to apply for one year, whereby the father would not be allowed any visitation with his child. *fn1 [Tr. 19] Appellant contends that the trial Judge abused his discretion by failing to find that visitation would harm the child, by relying on, without reviewing the findings of, a civil protection order based on a lower standard of proof, and by failing to consider relevant information in the form of a psychiatric evaluation of appellant. Because the trial Judge failed to read the psychiatric evaluation which challenged the recommendation in the preDisposition report against visitation, and failed to read the findings underlying the civil protection order on which he relied and which appellant challenged, we hold that the trial Judge abused his discretion, and we reverse.

I

M.D. was born to A.D., the mother, and V.G., the father, on April 30, 1990. *fn2 On May 30, 1990, the baby boy was admitted to the Children's Hospital suffering from a parietal "hematoma to the left side of the temple." [R 12] A police report indicated that when appellant had tried to hit the child's mother he had accidentally hit the child. [R 12] A neglect petition was filed on May 31, 1990 [R 7], and following a shelter care order, the child was later conditionally released to the mother on July 2, 1990. [R.18, 19]

In the intrafamily proceeding, Judge Margaret Haywood entered a civil protection order on June 29, 1990, directing that appellant stay away from the child, the mother and her family, pay child support, and participate in an alcohol rehabilitation program "if indicated after an evaluation by the Director of Social Services." [R 30] Further, the civil protection order stated that appellant shall have no visitation rights unless ordered by the Judge in the neglect case. [R 30]

In the neglect proceeding before Judge Wolf, the Judge's finding of neglect was made pursuant to a stipulation by the mother and father agreeing that the child's injury was the result of a "domestic altercation," eliminating reference to appellant as the sole cause of the injury, and that the court should assume jurisdiction over the child as a neglected child. *fn3 [R 38] Further, in that stipulation, appellant agreed to abide by the conditions of the civil protection order entered on June 29, 1990. [R 37]

At the Disposition proceeding on January 17, 1991, Judge Wolf noted that the preDisposition report recommended that the child remain in the custody of the mother. *fn4 [Tr. 3] All parties *fn5 except appellant and his counsel agreed that it was in the best interests of the child for the conditions of the civil protection order, entered by Judge Haywood in the intrafamily proceeding, to remain in effect. *fn6 [Tr 21] The preDisposition report, dated December 3, 1990, recommended that the child remain with the mother and that the father receive "psychotherapeutic assessment and treatment." [Rpt at 6]

When Judge Wolf inquired whether appellant wanted to show the court, by participating in counseling, that he should be given permission for visitation, appellant's counsel stated that his client did not think he needed counseling. In support of his position, appellant's counsel referred the Judge to a six-page report regarding a psychiatric evaluation of appellant by Dr. Jesus Saavedra on December 8 & 15, 1990, which stated that appellant was in good mental health and did not indicate any evidence of alcoholism. Appellant's counsel, noting that he had brought to the Judge's chambers the transcript of the intrafamily proceeding before Judge Haywood, stated that the transcript of the intrafamily proceeding indicated that the mother's testimony was contrary to the parents' stipulation regarding the cause of the injury to the child. Hence, appellant's counsel stated, if the Judge Wolf were inclined to use that transcript, then the Judge should review it carefully before relying on the findings in the intrafamily proceeding, which involved a lesser standard of proof than in neglect proceedings, in order to determine whether there had been perjured testimony. [TR 5]

The trial Judge admitted during a colloquy with appellant's counsel that he had not read the psychiatric evaluation. [Tr 4] Nor had the Judge read the transcript of the intrafamily proceeding, although he noted regret that he had not had a chance to do so. [Tr.4] In view of the fact that the Judge had not read the psychiatric report, appellant's counsel requested a specific finding on the father's visitation rights if the Judge was "going to act on [the probation officer's] recommendations without having read the [psychiatrist's] report." [Tr 11] The trial Judge indicated that he would recess and read the report if he needed to. [Tr 12] The guardian ad litem for the child advised the Judge that the two reports -- the psychiatric evaluation and the preDisposition report -- differed on appellant's need for therapy and counseling. [Tr 8] A probation officer who was present advised the Judge that Dr. Saavedra had made two statements, one orally to her indicating that he had found "post-traumatic stress symptomatology and he felt that really did need psychotherapy," [Tr 8-10] and a second, in his six-page written report, that the "post-traumatic stress symptomatology is in remission and . . . that although might be in need of some counseling, he does not necessarily need psychotherapy." *fn7 [Tr 9] Appellant's counsel responded that during his (at least) four Discussions with Dr. Saavedra, the doctor had not retreated from the position in his signed report. [Tr 10]

Nevertheless, despite the apparent ambiguity about Dr. Saavedra's ultimate diagnosis and recommendations, the trial Judge proceeded, without a recess to read the psychiatric evaluation, to order a Disposition continuing the terms and conditions of the civil protection order of June 29, 1990. [Tr 19] The trial Judge stated that "the primary interests of the child are my concern," [tr 7] and that based on Judge Haywood's finding [in the intrafamily proceeding] there will not be visitation and the child support will continue." [Tr. 19] The trial Judge indicated that he considered the civil protection order entered by Judge Haywood still to be in effect, and would not change the stay away order "until some motion, for example, is filed to discharge it. Accordingly, visitation will not be permitted." [Tr 19]

II

It has long been recognized in this jurisdiction that

When custody of children has been awarded to one parent, the parent deprived of their custody has the right of visitation with the children and ought not to be denied that right unless by his conduct he has forfeited his right, or unless the exercise of the right would injuriously affect the welfare of the children. 'The right of visitation is an important, natural and legal right, although it is not an absolute right, but is one which must yield to the good of the child.' 2 NELSON, DIVORCE AND ANNULMENT, ยง 15.26 (2d ed. 1945). The right of access to one's child 'should not be denied unless the ...


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