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In re E.R.

October 27, 1994

IN RE: E.R., L.A.R., APPELLANT


Appeal from the Superior Court of the District of Columbia; (Hon. Gregory E. Mize, Trial Judge)

Before Wagner, Chief Judge, Schwelb, Associate Judge, and Belson, Senior Judge.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: On September 9, 1993, this court stayed the briefing of this appeal and ordered appellant L.A.R. (the mother) to show cause, if any there be, why this appeal from an adjudication of child neglect should not be dismissed as moot. The order to show cause was issued because L.A.R.'s daughter E.R., the child who is alleged to have been the victim of neglect, has been returned to El Salvador and is no longer within the jurisdiction of the trial court. Having considered the submissions of the parties, we hold that, because the adjudication of neglect has significant potential collateral consequences for the mother, her appeal is not moot.

I.

E.R. was born in El Salvador on September 4, 1980. In August, 1990, shortly before her tenth birthday, she was brought to the United States to live with her mother, who has resided here for several years. On July 20, 1991, the District of Columbia instituted child neglect proceedings against the mother pursuant to D.C. Code § 16-2301 (9)(A) (1989), alleging that the mother had severely beaten her daughter on two occasions with a belt.

Following an evidentiary hearing, the trial Judge found that the mother had used excessive force in disciplining E.R. The Judge's written order, issued on March 16, 1992, included the following:

In this case, although the evidence revealed that the injuries sustained were not so severe as to require medical attention and were administered in response to misconduct, the court found noteworthy that the mother admitted she had physically disciplined respondent during the girl's first three months after her arrival in the U.S. and again in February of 1992 (although by then she was ordered not to do so as a condition of respondent's release to the mother). Accordingly, in light of the likelihood of reoccurrence and the severity of the punishment as substantiated by the photographs, this court concludes that the discipline provided to respondent in July of 1991 was part of a dangerous pattern of abuse, went beyond that which was reasonably necessary, and was therefore excessive.

On April 30, 1992, following a Disposition hearing, the Judge ordered that E.R. remain in the custody of her mother under the protective supervision of the court. He ordered the mother not to discipline the child physically, and he required both mother and daughter to participate in therapy.

The mother filed a timely notice of appeal. On July 9, 1993, while the appeal was pending, the District advised the court that E.R. had been returned to El Salvador, that she was living with relatives, and that she wished to remain there. On the basis of this information, this court issued an order staying the expedited briefing in the case and directing the mother to show cause as noted above. We now conclude that the controversy remains alive. Accordingly, we discharge the order to show cause and direct that the appeal proceed.

II.

We note at the outset that the mother has not been convicted of a crime. *fn1 Rather, she is a defendant in a civil proceeding. As we stated in In re S.G., 581 A.2d 771 (D.C. 1990),

neglect proceedings are remedial and focus on the child; they are critically different from criminal prosecutions, which are primarily concerned with the allegedly abusive parent. In re S.K., 564 A.2d 1382, 1388-89 (D.C. 1989).

Id. at 775.

Nevertheless, an adjudication of neglect may have serious consequences for a parent, especially where, as here, the Judge has found that the mother engaged in a "dangerous pattern of abuse." In In re H. Children, 156 A.D.2d 520, 548 N.Y.S.2d 586 (N.Y. App. Div. 2d Dept. 1989), the period of supervision imposed by the court as a result of a finding of neglect had expired while the appeal was pending. The State moved to dismiss the appeal as moot. The court held, however, that the controversy remained justiciable, because the adjudication of neglect constitutes a permanent, and significant, stigma. ...


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