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11/06/92 J.F. APPEAL K.F. v. P.M. AND L.T.

November 6, 1992

IN RE: J.F. APPEAL OF K.F., APPELLANT
v.
P.M. AND L.T., APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Kaye K. Christian, Trial Judge)

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

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge:

Appellant K.F. appeals the placement of his son, J.F., in the custody of the child's maternal grandmother, L.T., on the principal ground that he was denied his due process rights to a fair hearing. We agree, and therefore we reverse.

I

Appellant, the father, appeals the order of September 12, 1991, which continued the placement of his son with his maternal grandmother by order of July 19, 1991. *fn1

J.F., who was born out of wedlock on August 30, 1981, to appellant (the father) and P.M. (the mother), has lived most of his life in his mother's custody. J.F. (the child) and his mother initially resided at the home of P.M.'s mother, L.T. (the grandmother), until the child was about one year old. At that time the mother moved to Maryland to live with the father. The child often stayed at the grandmother's home in order to be close to childhood friends. While living with the father, the mother used controlled substances.

After approximately five years, the mother left the father and, taking the child with her, returned to the grandmother's house. The father continued to support the child financially while he lived at the grandmother's home by giving money to the grandmother and reimbursing her for certain necessary items that she acquired for the child.

On July 27, 1990, the Corporation Counsel of the District of Columbia filed a neglect petition against the mother, alleging that she had not adequately cared for her children (J.F. and C.M.) and had failed to complete a recommended drug treatment course. In September, 1990, the child was placed with the mother, who was living at the grandmother's home, on condition she submit to weekly drug testing and follow through with any recommended drug therapy; a status hearing was set for October 18, 1990. On that date, the Judge conditionally released the child into the custody of the grandmother. In both orders, the father was awarded liberal visitation rights. Thereafter, the mother signed a stipulation of neglect on November 26, 1990, in which she admitted having "left [the child and his sister, C.M.] in the care of unrelated care takers, the maternal grandmother, and the baby-sitter without making proper arrangements for care," and failing in the past "to complete programs to help her recover from her drug problem." Following a Disposition hearing on January 9, 1991, the trial Judge placed the child under the protective supervision of the father, directing that he enroll the child in school, granting liberal visitation to the mother and listing caretakers for the child; a review hearing was set for July 11, 1991.

Before the review hearing occurred, the grandmother filed a motion on April 17, 1991, seeking custody of the child at her home with unlimited visitation by each parent. *fn2 During the May 24, 1991 review hearing, the parties explained to the trial Judge that they had all consented to the child being placed with the mother during his summer vacation from school. Apparently consenting to this arrangement, the trial Judge placed the child in the mother's custody under the protective supervision of the trial court, with liberal visitation rights for the father, and scheduled a review hearing for August 27, 1991. The trial Judge held the grandmother's motion requesting custody of the child in abeyance, setting a court hearing on August 27, 1991.

On July 15, 1991, the grandmother filed a new motion requesting the placement of the child and his half-sister, C.M., at her home. The motion stated, based on information received from the grandmother, that the mother had apparently again used controlled substances and failed to pick the day-care provider for the half-sister, C.M., on July 12, 1991. The motion requested that the child be "re-enrolled" in a D.C. public school near the grandmother's home, beginning in September. It also sought a "reevaluation or study of the placement of these three children." In response, the trial Judge scheduled an emergency hearing for the next day, July 16, 1991, which was continued to July 19, 1991.

During the emergency hearing on July 19, 1991, the trial Judge gave all counsel an opportunity to make representations on their client's behalf and to offer testimony. Counsel for the father objected to the shift in the nature of the emergency hearing, from a hearing on the mother's drug use to a contest for custody between the grandmother and the father that the Judge had held in abeyance until August 27, 1991. The father's counsel argued also that the father claimed there were misrepresentations made about the money he had provided and school enrollment. The father also objected to the child staying in the grandmother's home where he had been subjected to physical abuse. The Judge responded that she would hear any witnesses or representations.

Among the parties, only the grandmother testified and she primarily addressed questions regarding her own adult son's drug use and alleged physical discipline of the child at her home during the summer. While the grandmother's counsel argued that her client should receive custody, *fn3 counsel for appellant and the child's guardian ad litem recommended that the child be placed with the father. *fn4 The trial Judge expressed concern about separating the

child from his half-sister, and she found that the child had "spent the majority of his life in the home of [the grandmother], with the permission of both of his parents," and that it had "pretty much been his home." Accordingly, the trial Judge ordered custody of the child be given to the grandmother, granting the father liberal visitation rights (and the mother supervised visits). A review hearing was set ...


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