Before Schwelb, Farrell, and Washington, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Kaye K. Christian, Trial Judge)
T.S. (the mother) appeals from an order of the Superior Court, entered in a divorce proceeding, permanently removing her two children from her custody and awarding permanent custody to the children's maternal grandmother. The mother claims, inter alia, that the trial judge exceeded her authority under the District's divorce statute by placing custody in a non-party. The mother also contends that she was denied the procedural protections provided by the child neglect statute. We agree with both of the mother's contentions. Accordingly we reverse.
I. THE TRIAL COURT PROCEEDINGS
A. The finding of abuse by the father.
The mother married M.C.S. (the father) on December 31, 1987. The parties had two children: a son, M.C.S., Jr., who was born on January 17, 1988, and a daughter, J.A.S., who was born on November 29, 1990. On September 11, 1991, the father filed a Complaint for Legal Separation in which he asked for custody of M.C.S., Jr. and J.A.S. On March 2,1992, Judge Ricardo Urbina entered a consent order awarding the mother permanent custody of both children.
On May 3, 1993, the father filed an action for divorce. At the same time, he moved the court to modify the custody award. In support of his motion, the father alleged that the mother had interfered with his visitation rights, that the mother's health had deteriorated, and that it would be in the best interest of the children to award custody to the father.
While the father's motion for modification of custody was pending, the mother alleged that her daughter J.A.S., then two years old, had been sexually abused. Specifically, the mother reported that while she was changing her daughter's diapers, she had noticed that the child's vaginal area was red and swollen. The mother immediately took the child to the hospital. The matter was reported to the police, and on October 25, 1993, the Corporation Counsel filed a neglect petition alleging that the father had sexually abused his daughter.
The father denied the allegation of abuse. He contended, inter alia, that the mother had fabricated the charge in retaliation for the father's relationship with another woman, and also in order to thwart the father's request for modification of custody. A fact-finding hearing was held from February 27 through March 20, 1995. On April 7, 1995, in a comprehensive written order, the trial judge found that the father had sexually abused his daughter in the presence of her four-year old brother. The judge found J.A.S. to be a neglected child. She ordered that all visitation between the father and his daughter be suspended and that the father enter a sexual offender treatment program. The judge placed J.A.S. in the custody of the mother under the protective supervision of the court. The father appealed and, on January 19, 2000, this court affirmed the judge's decision in an unpublished Memorandum Opinion and Judgment. In re J.A.S., Nos. 95-FS-1131 & 96-FS-894 (D.C. Jan 19, 2000).
B. The award of custody to the grandmother.
The hearing on the father's motion to modify custody began on July 29, 1996, and continued on sixteen different days over a period of more than fifteen months. The proceedings were held in the shadow of the finding that the father had sexually abused his two-year-old daughter. At a hearing on November 4, 1996, the father's attorney stated that his client "still is formally asking for [custody]" but "recognizes there's not a chance in hell that this court will award it to him given what's occurred in the neglect jacket." The father therefore requested that the children be placed, at least temporarily, with a third party custodian, namely, the maternal grandmother. In response to the father's proposal, counsel for the mother filed an affidavit by the grandmother stating that the mother had been the primary caretaker of the children and that the grandmother had not sought, and would not accept, legal custody.
The father's contention that the children should be removed from the mother's custody was based on two specific allegations. First, the father claimed that J.A.S. had been abused by a fifteen-year-old cousin, and that the mother had not adequately protected her daughter from the abuse. According to the father, the mother had permitted J.A.S. to have further contact with the cousin, and she had continued to display the cousin's photograph in the home. The mother vigorously denied the father's allegations, and she introduced testimony from several witnesses, including the children's therapists and the court's probation officer, to the effect that the mother had been a resourceful, effective, and responsible parent to both children. Second, the father introduced ...