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08/16/93 J.J.Z. APPELLANT. M.A.Z. APPELLANT. B.S.

August 16, 1993

IN RE: J.J.Z., APPELLANT. IN RE: M.A.Z., APPELLANT. IN RE: B.S., APPELLANT. IN RE: S.C., APPELLANT. IN RE: K.S., APPELLANT. IN RE: R.S., APPELLANT


Appeals from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Motions Judge in Nos. 90-FM-839 and 90-FM-840; Hon. Gladys Kessler, Motions Judge in Nos. 90-FM-861, 90-FM-862, 90-FM-863, and 90-FM-864)

Before Terry, Farrell, and Wagner, Associate Judges.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge : These consolidated appeals challenge the trial court's dismissal of neglect petitions filed pursuant to D.C. Code § 16-2301 (1989), upon motions made by the District of Columbia, over the objection of the court appointed guardians ad litem for six minor children. The government represented that its evidence was insufficient to meet its burden of proof in the cases involving J.J.Z. and M.A.Z. In the cases involving B.S., S.C., K.S., and R.S., the government cited as reasons for dismissal the substantial positive changes in the children's mother's living arrangements and lifestyle and her family's willingness to assume responsibility for the care of the children should their mother, A.S., be incarcerated. The principal issue raised by all appellants is whether the trial court erred in dismissing the petitions without first independently determining whether pretrial dismissal was in the children's best interests. We hold that where the government seeks to dismiss a neglect petition based upon its good faith determination that its proof is insufficient to sustain the charges, the trial court must grant the motion. Further, we hold that where the government seeks to dismiss the petition over the objection of the guardian ad litem for reasons other than a lack of proof of neglect, the court must make an appropriate inquiry, including an evidentiary one if necessary, to determine whether the best interests of the child will he served by dismissal. We conclude that the hearing in the case of B.S., S.C., K.S., and R.S. was sufficient and that the trial court did not abuse its discretion in dismissing the petition under the circumstances. Accordingly, we affirm.

I. Factual Background

A. J.J.Z. and M.A.Z.

On December 1, 1989, K.Z., a six month old infant, was admitted to Children's Hospital suffering from "a fracture left humerus and multiple old bone injuries which are suggestive of non-accidental trauma." The Corporation Counsel filed petitions in the Superior Court alleging that K.Z. and the infant's siblings, J.J.Z., born December 25, 1986, and M.A.Z., born June 5, 1988, were neglected and citing as reasons therefor K.Z.'s injuries and their father's inability to discharge his parental responsibilities because of alcoholism. The three children were placed in shelter care in custody of the Department of Human Services pending trial. *fn1 At a pretrial hearing, a probation officer reported that skeletal examinations for J.J.Z. and M.A.Z. revealed no injuries or fractures. That same day, the court entered an order for conditional release of the children to the custody of their mother, M.M. The order precluded the father from having contact with the children when drinking and provided for his participation in an alcohol abuse treatment program. The mother was ordered to continue individual therapy, and both parents were ordered to refrain from physically disciplining the children.

On the first scheduled trial date, the government sought to proceed only with the petition for K.Z. by way of a stipulation of neglect from the father. After some question about the substance of the stipulation, the court (Judge Peter Wolf) declined to accept it because the trial involving the child's mother would proceed on essentially the same proof. The government represented that it did not want to go forward with the cases for J.J.Z. and M.A.Z. in any event because it had no proof of any nexus between the father's drinking and any injury to these children, nor evidence that they were otherwise injured. Essentially, the government was of the view that the fact that K.Z. had been abused, standing alone, was insufficient to support an adjudication of neglect under D.C. Code § 16-2301 (9)(E) in the absence of evidence that the other children were in imminent danger of being abused. The government also expressed the view that if K.Z. were found to be neglected, the family could benefit from monitoring or services provided pending the Disposition in K.Z.'s case.

After a trial before another Judge, K.Z. was found to be neglected by both parents under D.C. Code § 16-2301 (9)(A) (a child abused by his parent). *fn2 At the next hearing before Judge Wolf, the government renewed its motion to dismiss the petitions related to J.J.Z. and M.A.Z. for the reasons given at the prior hearing. The guardian ad litem (GAL) for the children opposed the motion and requested the court to allow him to proceed in lieu of the government. The GAL argued that the District of Columbia had a special duty to protect abused and neglected children and that the court, as parens patriae, had the inherent power to reject an arbitrary dismissal of a neglect petition. He urged the court to proceed to a hearing on the merits and to authorize the GAL to continue with the petitions if the District should fail to do so.

In addition to the legal arguments in support of the motion, the GAL proffered as evidence that the facts known to the government at the time of the oral motion to dismiss which would support a finding of neglect included the following: (1) the finding that the parents of J.J.Z. and M.A.Z. abused their sibling, K.Z.; (2) the unexplained, severe head injuries sustained some seven years before by S.J.M., a half-sibling to the children, while in the mother's care; *fn3 (3) the mother's suicidal thoughts, which required mental health intervention, and her unwillingness to learn much needed parenting skills, according to the community workers; and (4) the mother's failure to disclose voluntarily that S.J.M. was her daughter and her inconsistent explanations for the injuries which caused S.J.M.'s condition. After submission of memoranda by the parties, the trial court granted the government's motion to dismiss the petitions without opinion. The GAL noted these appeals on behalf of J.J.Z. and M.A.Z.

B. B.S., S.C., K.S. and R.S.

On February 10, 1989, the Corporation Counsel's office filed neglect petitions for B.S., S.C., K.S., and R.S., the children of A.S., alleging that "[they are] without proper parental care and control necessary for physical, mental and emotional health, and the deprivation is not due to the lack of financial means of mother." Specifically, it was alleged that the children's home was filthy, that they had no food and little furniture, and that various items of drug paraphernalia were observed there. Pending further initial hearing, the trial court entered orders for conditional release of the children to reside with their maternal grandmother or maternal aunt. On February 13, 1989, the court placed the children with their maternal aunt. Subsequently, the children were placed in the custody of the Department of Human Services for shelter care placement.

After trial commenced on the first scheduled trial date, the government moved to amend the petitions because it had discovered that the mother, A.S., had been arrested for distribution of cocaine. The court granted the motion to amend and a motion for mistrial. Thereafter, the government filed an amended petition which included the arrest information. On the next trial date, the government made an oral motion to dismiss, representing that the mother had completely changed her life for the better. Specifically, the government represented that A.S. had moved back in with her parents and was: (1) attempting to maintain employment; (2) testing drug free; (3) keeping in touch with her social worker; and (4) doing things for her children. A.S.'s attorney proffered that the co-defendant in A.S.'s pending drug case would testify that it was he, and not A.S., who sold the drugs. Further, counsel for the government reported that A.S.'s family had expressed a willingness to care for the minor children if the criminal charges against A.S. resulted in her incarceration. In response to the court's inquiry, counsel for the government stated that she felt they had made an adequate investigation before moving to dismiss the case. Counsel for the mother supported the motion.

The GAL for the children opposed dismissal, contending that A.S. was involved extensively in drugs. The GAL urged that the court proceed with a hearing on the merits and authorize the GAL to proceed if the District should decline to do so, or alternatively continue the case until after completion of the criminal prosecution. The trial court, relying on the rationale set forth In re D.B., 117 Daily Wash. L. Rptr. 665 (April 4, 1989), dismissed the petitions. *fn4 The GAL filed a motion for reconsideration in which he argued, inter alia, that since the GAL objected to dismissal, the court should hold an evidentiary hearing to determine whether the children were neglected. He contended that there was strong evidence of the mother's ...


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