Before Reid and Washington, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Arthur L. Burnett, Sr., Trial Judge)
Argued September 21, 1999
In this case N.C., the biological mother of J.M.C., challenges the order of the trial court terminating her parental rights. She contends primarily that (1) the trial court "erred in terminating the mother's parental rights based on the factual findings in [a] prior neglect proceeding where the standard of proof is a preponderance of the evidence"; and (2) mental illness alone is not a proper basis for terminating parental rights, especially where the government fails to provide services to the mother to facilitate reunification. We conclude that the trial court based its decision on clear and convincing evidence presented at the termination of parental rights' hearing ("the TPR hearing"). Furthermore, we hold that in terminating parental rights, the trial court at least may take judicial notice of prior neglect proceedings for the purpose of providing related and relevant background information, whether or not the interested parent was a party to and represented by counsel during the neglect proceeding. In addition, we hold that where the interested parent was a party to and represented by counsel in the prior neglect proceeding, the trial court may consider and supplement related and relevant facts previously found in the neglect proceeding, provided that the trial court's decision terminating parental rights is based on clear and convincing evidence. We also conclude that: (1) the mother's rights in this case were not terminated solely on the basis of her mental illness; and (2) the decision to terminate parental rights is controlled by the best interests of the child standard and the failure of DHS to facilitate reunification efforts between parent and child cannot defeat the issuance of a TPR order. Therefore, we affirm the judgment of the trial court.
J.M.C. was born on September 15, 1992 at George Washington University Hospital ("GWU Hospital") where his mother, N.C., was a patient in the psychiatric unit. One week after J.M.C.'s birth, the District filed a neglected child petition and, after receiving affidavits from GWU Hospital medical personnel regarding the condition of N.C. and J.M.C., the trial court placed J.M.C. in shelter care in the custody of the District of Columbia Department of Human Services ("DHS"). On October 21, 1992, the trial court placed J.M.C. with J.L. and O.L. *fn1
Testimony presented at the TPR hearing showed that N.C. had a thirteen-year history of mental illness and manifested an unwillingness to voluntarily take anti-psychotic medication for her illness, diagnosed consistently through the years as schizophrenia, paranoid type. Dr. Soo W. Han, Chairman of the Department of Psychiatry at Prince George's Hospital Center, and also an employee of St. Elizabeths Hospital serving as head of Child and Adolescent Inpatient Services, testified as an expert in adult psychiatry. Dr. Han treated N.C. at Prince George's Hospital from September 19-26, 1996. He stated that upon her arrival at the hospital, N.C. "was quite grossly psychotic, meaning that she was out of touch with her immediate surroundings and acted and talked as if she is living in different reality than most of us are living." N.C.'s "personal hygiene was very poor . . . . [B]ut her condition was rapidly improved after [Dr. Han] put her on anti-psychotic medication and in another two, three days she was pleasant." When N.C. was discharged from the hospital, "she was fully oriented" and Dr. Han saw no "imminent danger." However, N.C. refused to take with her the prescriptions for the prescribed medicine. According to Dr. Han, N.C. said: "She is not going to take it" and "She is going to arrange everything on her own."
Based upon medical records which he personally reviewed, Dr. Han recounted N.C.'s history of hospitalization, beginning in 1984 at the Springfield State Hospital where she was diagnosed with schizophrenia, paranoid type. Hospitalization also occurred in 1986 at the Washington Adventist Hospital and St. Elizabeths Hospital. During her 1986 hospitalization at Washington Adventist, her right foot and part of her left foot were amputated due to her exposure to cold weather during the winter when she failed to take her medication while she was not hospitalized. Between 1991 and 1996, N.C. was involuntarily admitted to various hospitals, including St. Elizabeths, Washington Adventist, Springfield State, GWU, and Prince George's. Dr. Han stated that N.C. had a tendency to sign out of hospitals "against medical advice," or, "as soon as she [left] the hospital ground, she did not adhere to her agreement" regarding her care. Dr. Han stated that N.C. also suffered from a "personality disorder, not otherwise specified."
In terms of N.C.'s future ability to care for J.M.C., Dr. Han declared: "[W]hen [N.C.] is actively psychotic, grossly out of contact with reality, it would interfere with her ability to mother the child or also cause potential serious harm for the baby." Furthermore, based upon "[his] own first hand experience and description from other professionals," Dr. Han asserted that "[N.C.] was not able to even look into her own physical safety . . . . A fair assumption that if you cannot look after yourself, it is very hard to look after small infant which requires a lot more than even looking after an adult." Ultimately, when asked whether to a reasonable degree of psychiatric certainty N.C. "may be safely trusted with the care and raising of a child," Dr. Han said: "No."
The second witness at the TPR hearing was Nicolette Hawkins, a social worker who was assigned to N.C.'s case during her employment with DHS from February 1996 to March 1997. Ms. Hawkins saw N.C. at Prince George's Hospital in September 1996. She portrayed N.C., who at the time was in restraints, as "extremely hostile, verbally abusive," and said she "used profane language . . ., lunged up from her restraints as if she was going to half spit at me, called me a lot of profane names and we were asked to leave because she was totally incoherent." Ms. Hawkins acknowledged that despite her assignment to N.C.'s case, she had never tried to make contact with N.C. prior to seeing her in September 1996, because "I would say I wasn't familiar as to the process of the agency and I just never did it." Ms. Hawkins had no telephone number or address for N.C. Although N.C. called Ms. Hawkins once, she left no phone number or address where she could be reached.
The third and fourth witnesses at the TPR hearing were J.L. and O.L., the couple with whom J.M.C. had been placed since October 21, 1992. J.L. and O.L. had raised four grown children and had a seven-year-old adopted son. They encountered N.C. twice during visits between N.C. and J.M.C. arranged by DHS, and at least once at the courthouse. The initial encounter took place during the Summer of 1993. O.L. described N.C. as "verbally abusive to the social worker" but not to J.L. or herself. J.L. recalled N.C. saying, "[t]his is not J.[M.C.] This is not my baby." When J.L. gave J.M.C. to N.C. to hold, the baby cried. N.C. "started to become very agitated and . . . very emotional with J.[M.C.]." When J.L. took J.M.C. back, N.C. "started cursing at the social worker."
O.L. described J.M.C. as "very energetic," "robust" and "impulsive." She also stated that "[the child's] attention span is short" and J.M.C. can be "distracted." Therefore, "whenever [J.M.C is] entrusted to do something, [O.L. has] to do it with [J.M.C.] to get [the child] to complete most of [the] tasks." J.M.C. has "improved greatly" from an educational point of view, but [J.M.C.] "gets easily frustrated" and has a tendency to want to give up rather than continue with an activity to completion.
J.L. recalled that during the second visitation between N.C. and J.M.C., N.C. "became again agitated and started cursing us and cursing at the social worker"; and asking why "[her] child [wasn't] relating to [her]." After a court encounter in 1994, N.C. called J.L. several times. Her primary topic, however, was P.L., J.L.'s brother who had been considered J.M.C.'s putative father until a paternity test showed he was not the father. J.L. also spoke with N.C. about two months before the TPR hearing. She was only interested in P.L. and why he had not called her. She did not inquire about J.M.C.
Both J.L. and O.L. testified that they wanted J.M.C. to become a permanent part of their family. N.C. was not present at the hearing, but was represented by ...