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In re X.B.

March 3, 1994

IN RE: X.B., S.B., APPELLANT


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

Before Steadman, Schwelb, And Wagner, Associate Judges.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: Appellant, S.B., is the natural father of X.B., a minor child fourteen years old at the time, who was removed from S.B.'s care after he entered a stipulation of neglect pursuant to D.C. Code § 16-2301 (9)(B) (1989). Appellant challenges the trial court's Disposition order imposing upon him a weekly child support obligation because he was not given adequate notice or a hearing as required by D.C. Code § 16-2325 (1989). The trial court determined that the delivery of a copy of the preDisposition report in the neglect case by the assigned social worker to the folder for appellant's attorney in the CCAN *fn1 office constituted adequate notice that the court would include in its Disposition order an award of child support. We hold that such constructive notice was inadequate to meet the requirements of law and reverse and remand for further proceedings consistent with this opinion.

I.

On May 1, 1990 the District of Columbia filed a neglect petition alleging that on or about April 27, 1990, S.B. slapped X.B., his daughter, many times in the face and beat her repeatedly on the buttocks with an extension cord as a result of which X.B. sustained injuries to her mouth, arm, and buttocks. The petition alleged further that S.B. had beaten X.B. with an extension cord on prior occasions. A police investigator filed a report stating that he interviewed S.B. in his home and that he admitted spanking X.B. because, according to S.B. she was having an affair with a suspected drug dealer, and she persisted in doing so after he requested her to cease the relationship. Pending a hearing on the allegations, X.B. was released to the temporary custody of her sister, R.M.

At a status hearing on June 6, 1990, it was learned that the attorney originally appointed to represent S.B. was ill and that he might not be available for weeks or even months. The jacket entry for June 6, 1990 reflects that Hubert Margolies was appointed as counsel to represent S.B. at that time. However, the order relieving prior counsel and appointing Mr. Margolies in his stead was not entered until June 13, 1990, and according to the record, Mr. Margolies was notified officially of his appointment on that date. S.B., who speaks no English, *fn2 indicated through an interpreter that he wished to proceed with the case on June 14, 1990, the next scheduled status date, even though new counsel had just been appointed. At the status hearing, S.B. entered a stipulation in which he essentially admitted the allegations in the neglect petition, and he consented to X.B. remaining in the custody of her sister, R.M., with visitation rights reserved to him, provided X.B. consented and R.M. was present. He also agreed to attend parenting and counseling classes. *fn3 A Disposition hearing was set for July 31, 1990. *fn4

Later during the week of July 23, 1990, the assigned court social services worker, Elsa Mantilla, called Mr. Margolies and stated that she had prepared a preDisposition court report which she would leave in his folder in the CCAN office in Superior Court. However, appellant's counsel had no business at Superior Court until Tuesday, July 31st, the morning of the Disposition hearing. Appellant's counsel represented to the court that the only "notice" that child support would be considered and imposed at the Disposition hearing was the recommendation made by the social worker in the preDisposition report which he saw for the first time on the morning of the Disposition hearing. *fn5 Therefore, he had only a brief time to confer with S.B., who required an interpreter, before the hearing, and he objected to the entry of a support order. Nevertheless, as a part of the Disposition order, which placed X.B. in her sister's custody with the visitation provision set forth in the stipulation, the court ordered S.B. to pay $58 per week in child support to R.M., the custodian, through the Registry of the Court. The trial court made no factual findings to support its determination of the support amount. The court also scheduled an intermediate review for November 2, 1990. *fn6

On August 6, 1990 S.B. filed a Motion to Vacate the support order on the grounds that it was: (1) entered in contravention of D.C. Code § 16-2325; (2) denied S.B. the procedural safeguards of proper notice and an opportunity to be heard; and (3) entered without regard to S.B.'s financial status and ability to pay. *fn7 The court denied the motion on August 14, 1990 "without prejudice to filing a motion for Reconsideration of Support Order within ten days of entry of this Order setting forth specific factual reasons why the support order of July 31, 1990 should be reduced or vacated." The following day, without seeking reconsideration, S.B. noted this appeal from the Dispositional order and from the order denying the motion to vacate.

II.

Appellant argues that the trial court erred in ordering him to pay child support as a part of the Disposition order in a neglect case without providing him with due notice and a hearing as required by D.C. Code § 16-2325. Such notice, according to appellant, must be separate and distinct from the notice of the Dispositional hearing and precede the support hearing. He further contends that notification of his attorney by the social worker, less than five business days before the Dispositional hearing, of the availability of the preDisposition report, in which the social worker made a general recommendation that appellant pay child support, was insufficient to meet the due notice requirement of the support statute. While conceding that D.C. Code § 16-2325 requires due notice to the parent before the court imposes upon him or her a child support obligation, appellee argues that, read in context with other pertinent statutory provisions, particularly D.C. Code § 16-2319 (b), notification of appellant's counsel of the availability of the preDisposition report was sufficient to meet the requirements of due notice set forth in D.C. Code § 16-2325. We consider these arguments in light of the relevant statutes and case law. *fn8

Following an adjudication by the court that a child has been neglected, the Superior Court has authority to enter a Dispositional order affecting the child's care and custody which is in the child's best interest. See D.C. Code § 16-2320 (1989). The focus of the Dispositional hearing, as gleaned from the statutes governing the proceeding, is primarily upon the appropriate placement or custodial arrangements for the child, plans for the provision of social, medical, and other services directed toward alleviating conditions harmful to the child, and plans for "maximizing the parent-child relationship consistent with the welfare of the child." See D.C. Code §§ 16 2319, -2320. *fn9 To assist the court in reaching a Disposition consistent with the child's best interest, the court is required to direct the Director of Social Services or other designated agency to prepare a preDisposition study and report providing specified information related to these primary areas of focus. D.C. Code § 16-2319 (c). *fn10 While the information required by statute to be covered in the preDisposition study and report is not exhaustive, there is no mention in the list of any requirement for the inclusion of information pertaining to child support. See id; see also D.C. Code § 16-2320. Thus, there is no reason to expect that notice of the filing of the social worker's report alone would be sufficient to alert counsel and his client that a hearing would be held to determine child support at the Dispositional hearing.

Respondent points out correctly that D.C. Code § 16-2325 authorizes the court to consider the issue of child support in neglect cases during the Dispositional hearing or thereafter. Therefore, respondent argues, the notice required of the filing of the preDisposition report set forth in D.C. Code § 16-2319 (b) should be read to constitute "due notice" of the support hearing as mandated by D.C. Code § 16-2325. D.C. Code § 16-2325 provides in pertinent part the following:

Whenever legal custody of a child is vested in . . . individual other than the child's parent, after due notice to the parent or other persons legally obligated to care for and support the child and after hearing, the may, at the Dispositional hearing or thereafter, order and decree that the parent . . . shall pay . . . a reasonable sum that will cover in whole or in part the support and treatment of the child after the decree is entered.

(Emphasis added). The meaning of due notice and the type of hearing required is not explicated further in the neglect statute. However, the time for making available to counsel the preDisposition study and report is governed by ...


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