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In re S.C.M.

February 2, 1995

IN RE: S.C.M., APPELLANT


Appeal from the Superior Court of the District of Columbia; (Hon. Mildred M. Edwards, Trial Judge)

Before Ferren, Steadman, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: In this expedited child neglect appeal, S.C.M., now three and a half years old, has asked this court to set aside an order of the Superior Court conditionally releasing her to the physical custody of her biological mother, D.M., while leaving her in the legal custody of her erstwhile caretakers, M.J. and his wife C.J. (the J.'s). The J.'s support S.C.M.'s appeal. Most of the contentions urged upon us on appeal were not presented to the trial court or are otherwise not properly before us at this time, and we find no error or plain error. Accordingly, we affirm.

I.

EVENTS PREDATING THE JULY 26, 1994 ORDER

S.C.M., the little girl who is the subject of this controversy, was born on May 7, 1991. On September 30, 1992, when she was sixteen months old, she was admitted to D.C. General Hospital for treatment of a gunshot wound in her upper thigh. S.C.M. was wearing a cast, and the physicians determined that she had previously suffered a broken leg.

A police investigation which followed revealed that S.C.M. was living in a crowded apartment with her mother, then eighteen years of age, her maternal grandmother, her fourteen-year-old pregnant aunt, and several other small children. The grandmother regularly used cocaine and PCP and associated with a criminally-oriented boyfriend, one of several adults who had brought handguns into the apartment. The unit "reeked" with an offensive odor and was infested with roaches and rodents. S.C.M.'s young aunt reported that S.C.M. sometimes arose while other members of the household were still asleep and wandered around the apartment. The aunt claimed that when S.C.M. played with objects and sometimes broke them, the mother's response was to discipline her with a belt; the mother denied these allegations. The mother and the grandmother provided the police with hesitant, inconsistent and unconvincing explanations of the child's wounds; the mother subsequently admitted that both women had lied for fear of retribution from the grandmother's criminal associates.

On October 1, 1992, the Corporation Counsel filed a petition requesting the court to adjudicate S.C.M. a neglected child. A hearing was held on the same day before Judge Gregory E. Mize. M.J. was identified at the time as S.C.M.'s father. The Judge ordered that S.C.M. be released to M.J. and his wife, C.J., with "the mother to have reasonable rights of visitation as arranged by the caretaker."

On October 20, 1992, the mother, alleging through counsel that she had "serious doubts" as to whether M.J. is in fact S.C.M.'s father, filed a motion to establish paternity. H.L.A. tests subsequently established that one A.H. is S.C.M.'s biological father and that M.J. is not.

On January 21, 1993, the scheduled trial date, the parties signed, *fn1 and judge Mildred M. Edwards (the trial Judge) approved, a stipulation in which the mother

acknowledged that she was aware of problems in [the grandmother's] house, where she and [S.C.M.] lived, and that knowing of these problems, she failed to exercise sufficient and appropriate supervision with respect to [S.C.M.], and as a result the respondent sustained a gunshot wound.

The stipulation provided that the government "will not oppose return of [S.M.] to the mother if the home is approved by court social services and court social services recommends return of the respondent to the home."

It appears that M.J. and his wife provided S.C.M. with excellent care, and the trial Judge subsequently expressed her gratitude to the couple. There was, however, a great deal of tension between the mother and the J.'s. During the summer of 1993, the mother alleged that S.C.M. had told her that M.J. had bitten her (S.C.M.) on the vagina. The mother subsequently attempted to retreat from or retract this allegation, and it appears to have been established to the satisfaction of the court's Social Services Division and of a physician who examined S.C.M. that the charge against M.J. was baseless. *fn2 Nevertheless, the probation officer reported on August 20, 1993, that "since the biological mother made these allegations the foster father has been prohibited from living in the same house as [S.C.M.] and only permitted supervised visitation."

On September 16, 1993, the trial Judge entered a Disposition order. She placed S.C.M. in the legal custody of M.J. and C.J. The order stated that the mother was to have visitation "supervised by court social services," but also provided that "unsupervised visits shall be in the discretion of [the probation officer] if the psychological evaluation of respondent and mother indicate unsupervised visits are not to the detriment of the respondent." Subsequent orders dated October 6, 1993, and December 7, 1993, likewise provided that unsupervised visitation was to be in the probation officer's discretion.

In a report dated March 15, 1994, the probation officer reported to the court that S.C.M. had been doing well with M.J. and C.J., and that the mother had been visiting her without incident. The officer stated that she was "pleased with the [mother's] progress (albeit slow, better than none at all)," that the goal in this case is to reunify S.C.M. with her mother," and that "should all go well during this period, reunification can be recommended at the next court date." The probation officer added that the mother's living arrangement "needs clarification."

In July, 1994, the probation officer recommended that the mother, who claimed at that time to be living with a female roommate, be allowed to take her daughter home for an overnight visit. Acting upon the advice of S.C.M.'s guardian ad litem (GAL), who told them that overnight visits were not authorized, M.J. and C.J. refused to allow the mother to take S.C.M. The probation officer requested an emergency hearing before the court for July 15, 1994, and counsel were notified by telephone. The GAL was unable to attend this hearing, but counsel for the J.'s was present. At the hearing, the Judge observed that M.J. and C.J. "have done beautifully with [S.C.M.]." She stated, however, that overnight visits were the probation officer's "shot to call." She directed counsel for the J.'s to make this clear to his clients.

A regularly scheduled review hearing was held on July 26, 1994. The Judge reproved the GAL for obstructing the visitation order. Relying on a report by the probation officer to the effect that the mother had made great progress and that "few mothers have cooperated so fully with this writer," *fn3 the Judge stated that

we are talking about a mother-child relationship where the mother has demonstrated a sincere desire to have her child back, be the kind of mother she wants [S.C.M.] to have, and to act in her child's best interest.

The Judge issued an order directing that the "child shall reside with mother effective immediately," but that S.C.M.'s private placement in the legal custody of the J.'s be continued, with a review set for October 27, 1994. It is from this order that the GAL filed a notice of appeal on S.C.M.'s behalf.

II.

EVENTS SINCE THE JULY 26, 1994 ORDER

On July 30, 1994, in conformity with the trial Judge's order, S.C.M. was returned to the physical custody of her mother. In the days that followed, the GAL initiated a flurry of activity both in the Superior Court and in this court. On or about August 1, 1994, she moved the trial court to stay execution of the July 26 order. She also filed a motion seeking recusal of the trial Judge, allegedly for improper ex parte communications. *fn4 On or about the same date, the GAL filed a notice of appeal, and moved this court for a stay of the order, for summary reversal, for a writ of mandamus, and for an expedited hearing. The trial Judge, apparently believing herself to be without authority to act on the GAL's motions because an appeal was pending, did not decide the motion to recuse, nor did she stay her order. A motions division of this court granted the GAL's request for an expedited hearing, but denied all other relief.

It appears from various filings of the parties and from the representations of counsel that a review of S.C.M.'s placement was held on October 27, 1994. According to a representation in the District's brief in this court on the merits, filed on November 2, 1994, "the court continued the present status [at the October 27 hearing] even though ...


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