Before Schwelb, Ruiz and Glickman, Associate Judges.
Appeal from the Superior Court of the District of Columbia (Hon. Ronna Lee Beck, Trial Judge)
(Submitted February 17, 2000 Decided August 24, 2000)
Glickman, Associate Judge: Appellant, L.D., challenges the trial court's determination that she neglected her son, M.D. The court based its neglect finding on L.D.'s admissions about the medical care which she gave M.D. for his persistent eczema. Apart from L.D.'s own statements, no evidence was offered to establish that she had cared for her son improperly. In particular, no medical testimony was presented that L.D.'s treatment of M.D.'s eczematous skin condition was wanting, or that better treatment would have benefited M.D. On appeal L.D. argues that her "admissions" alone were insufficient to support the court's finding of medical neglect.
We agree that the court's judgment was not supported by sufficient evidence. We therefore reverse the adjudication of neglect. We take this occasion, however, to emphasize not only the importance of competent medical evidence in a medical neglect case, but also the power and duty of the trial court in a neglect proceeding to require augmentation of the evidentiary record when necessary to make an informed decision as to the best interests of the child before it.
The petition filed by the District of Columbia in this case alleged that M.D. was a neglected child within the meaning of D.C. Code §§ 16-2301 (9)(B), (C) and (D) (1997). *fn1 The District premised its theory of neglect solely on the claim that L.D. had failed to provide adequate medical care for M.D.'s eczema, in part because L.D. had a crack cocaine habit. *fn2 At the factfinding hearing, however, the District called only two witnesses, L.D. and a social worker. The only other witness who testified at the hearing, also a layperson, was called by L.D. As we shall observe, the consequence of this extremely limited evidentiary presentation was a record remarkably devoid of material information.
The pertinent evidence may be summarized as follows. Before the institution of neglect proceedings, M.D. lived with his mother (L.D.), his maternal grandmother, four of his siblings, and his mother's boyfriend. On February 2, 1996, M.D.'s grandmother brought him to the Child and Family Services Division (CFSD) of the Department of Human Services (DHS) and stated that she was unable to care for him. M.D., who was then eleven months old, was observed to be suffering from eczema, an irritating skin condition which had developed into open sores from the child's scratching. The CFSD filed a neglect petition. M.D. was taken to St. Anne's Infants Hospital and subsequently placed in foster care.
Although it had the burden of proving that M.D. had not received proper care for his eczema, the District presented no medical evidence. In lieu of such evidence, the District relied primarily on L.D. herself. It is fair to say that the parties expended minimal effort at the factfinding hearing to elicit exactly how L.D. had cared for her son, but L.D. testified that she took M.D. to a doctor and treated him with cortisone cream as she had been instructed to do. L.D. said she did not know why the treatment did not prove effective. However, she admitted in passing that it "seemed like" she did not know how to apply the cortisone cream correctly, that she may have been "mistreating" M.D., and that she was "drugging," i.e., abusing drugs, during the time M.D. was in her care. Because so much rides in this case on the significance of L.D.'s admissions, we quote them verbatim. L.D. testified as follows:
[M.D.] had a little slight problem like eczema on his face, and his legs, that I was not treating as well, I was not treating too well. And, I was taking him back and forth to the doctor to find out what can I really do, and they just kept giving me cream for him. And, seemed like I don't know if I was doing it right, or I don't know, but it seemed like it was not working for him. So I guess I was mistreating him wrong. And, then plus I was drugging at that time, too, so you know.
I guess I wasn't putting the right cream - when I took him to the doctor, they gave me some cortisone cream for him. Then they gave me two or three types of bottles of cortisone cream to put on him. They gave me one percent, they gave me five percent. They gave me 1.5 percent, and I mean, they telling me to put it different places. It seemed like it wasn't clearing up. I was bathing him like I was supposed to give him a nice rub down. It seemed like it wasn't clearing up the way it supposed to be. . . . They gave me written instructions as to how to use it and I did that, but it seemed like it just wasn't clearing up the way that they - I mean, I don't really know. I can't say I do know because I don't know for real about why it didn't clear up. . . . Took him back to the doctor, because he keep itching. . . . (Emphasis added.)
The District also relied upon the testimony of a DHS social worker, Patricia Johnson, that when she asked L.D. in May 1996 about M.D.'s condition, L.D. "indicated" that she had not taken her son to see a doctor. Johnson's memory of this conversation was vague, and she did not know the time period to which L.D.'s statement related. *fn3 Significantly, Johnson further testified that M.D. was still suffering from eczematous lesions when she saw him at St. Anne's Infants Hospital in July 1996 - six months after M.D. had been removed from L.D.'s care.
The only other witness who testified at the factfinding hearing was Doris Jean Pickeral, one of L.D.'s neighbors. Pickeral testified that L.D. took M.D. to the doctor "quite a few times" and that "she had some type of ointment the doctor had gave her for his treatment." Pickeral said that she herself accompanied L.D. and M.D. to the clinic on three separate occasions.
In addition to the foregoing evidence regarding L.D.'s attention to M.D.'s eczema, there was undisputed evidence that L.D. was a long-time user of crack cocaine who was unable or unwilling to stop or to participate meaningfully in a drug treatment program. For the purposes of this opinion, it is not necessary to recite the evidence pertaining to L.D.'s drug usage in detail. Suffice it to say that L.D.'s comment, quoted above, that she was "drugging" during the period when she was unsuccessfully treating M.D.'s eczema, was the sole evidence - such as it was - that L.D.'s drug abuse impaired her ability to care for her son. *fn4
Because no physician testified and M.D.'s medical records were not introduced, there was no evidence as to the duration, seriousness and extent of M.D.'s eczema when he came to the attention of the CFSD in February 1996. There was no evidence as to the proper course of treatment for eczema, or the effectiveness of such treatment, or whether M.D.'s eczema was amenable to treatment. There was no medical evidence, in short, establishing that L.D. ...