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In re Ak.V.

March 23, 2000

IN RE P.V., APPELLANT


Before Terry, Farrell, and Ruiz, Associate Judges

The opinion of the court was delivered by: Ruiz, Associate Judge

Appeals from the Superior Court of the District of Columbia (Hon. John H. Bayly, Jr., Trial Judge)

Submitted January 27, 2000

This is an appeal from a denial by the Family Division of the Superior Court of appellant's motion to file a late appeal of a finding of neglect and disposition order removing appellant's children from her custody. Fifty days after the disposition order was entered, appellant moved for an extension of time to file an appeal on the grounds that she did not have timely notice of the court's disposition and that she had not been able to confer with her attorney in time to file a timely appeal. The trial court denied the motion, finding that the circumstances alleged by appellant did not constitute excusable neglect justifying an extension to file an untimely appeal. We remand the case for a hearing and further fact-finding on the record as to the circumstances surrounding appellant's failure to timely file her appeal, and for consideration of the motion consistent with the factors discussed in this opinion.

I. Background

A. Facts

Appellant, P.V., is the mother of Am.V., born in 1988, Ak.V., born in 1992, and An.V., born in 1997. On March 10, 1997, the police received a report that appellant had left Ak.V., then four years old, at home alone with the door unsecured, and an unidentified adult male had entered the apartment to sleep on the couch. P.V., who had a history of drug abuse, was in custody after having been arrested that morning for destruction of property. Ak.V.'s older sibling, then eight years old, and younger sibling, then two months old, were with a neighbor. The police removed Ak.V. and the two siblings, and contacted the Department of Human Services (DMS).

The District of Columbia filed petitions in the Family Division of Superior Court alleging the three children were neglected pursuant to D.C. Code § 16-2301 (9)(B) and (C) (1997).*fn1 Appellant was served with copies of the neglect petitions, and the court immediately appointed an attorney to represent her in the proceedings. The court also appointed a guardian ad litem to represent the children, and another attorney to represent the fathers of each of the children.*fn2 The children were temporarily placed with their maternal grandmother. Appellant was granted visitation supervised by the grandmother, and An.V.'s father was granted unsupervised visitation.

B. Proceedings

After an initial hearing, in a pre-trial order dated April 1, 1997, the Family Division found that there was probable cause to believe that the children were neglected, but released the three children to appellant's care on the conditions that appellant undergo regular drug testing, attend mental health appointments, receive parenting assistance, and permit daily visits by the maternal grandmother.*fn3

Appellant and her counsel appeared for a status hearing on December 15, 1997, at which a trial date was scheduled for January 21, 1998. Neither appellant nor An.V.'s father appeared for the neglect trial on January 21, 1998, but both were represented by counsel. The court adjudicated all three children to be neglected pursuant to § 16-2301 (9)(B) and (C). At the conclusion of the trial, in the presence of counsel for the parties, the court set the disposition hearing for March 6, 1998.

On February 5, 1998, the guardian ad litem moved for an emergency hearing for the purpose of considering removal of the children from appellant's care. The motion alleged that some time after the date of the trial, appellant had stopped attending the required parenting classes and was reported to be using drugs, that the children were not picked up from school one day, and that the social worker was being denied access to the children to monitor their safety. At the emergency hearing, on February 6, 1998, at which appellant did not appear but was represented by her counsel, the court ordered the children placed in shelter care.

The disposition hearing was held on March 6, 1998. Appellant did not appear, but was represented by her counsel who requested a continuance for reasons not apparent from the record. The continuance was denied. By order docketed March 9, 1998, the three children were committed to the custody of DHS for an indeterminate period not to exceed two years with visitation rights for the mother,*fn4 and a custody order was issued for the youngest child, An.V. who apparently had not yet been removed to shelter care. On March 31, 1998, An.V., was taken into care and placed at St. Ann's infant home. On April 8, 1998, DHS notified the court that An.V. had been returned to DHS' custody by filing a "Request for the Withdrawal of Custody Order." The trial court scheduled a status hearing for April 10, 1998. At that hearing, upon the government's motion, the court suspended appellant's visitation rights with An.V. The order stated that it had been entered "after hearing argument on behalf of all parties concerned," even though neither appellant nor her counsel were present.*fn5

On April 28, 1998, appellant's counsel filed an unopposed motion requesting an extension of time to file an attached notice of ...


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