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In re V.K.

November 02, 2000

IN RE V.K., M.K., APPELLANT.
IN RE S.K., M.K., APPELLANT.
IN RE C.K., M.K., APPELLANT.
IN RE EU.K., M.K., APPELLANT.
IN RE MI.K., M.K., APPELLANT.
IN RE CO.K., M.K., APPELLANT.



Before Ruiz and Reid, Associate Judges, and Mack, Senior Judge.

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

Appeals from the Superior Court of the District of Columbia Family Division

(Hon. Joan Zeldon, Trial Judge)

Argued June 17, 1999

This case arises from the trial court's denial of appellant M.K.'s motion to reconsider a stipulation that her grandchildren were neglected because their mother had died. On appeal, M.K. argues that the stipulation was legally defective because it alleged neglect solely due to the death of the mother, and because it was not signed by her, the only party named in the original neglect petition. Therefore, she asserts, the trial court erred in allowing the stipulation to stand because it prevented her from contesting the neglect allegations in the original neglect petition and regaining custody of her grandchildren. We conclude that the stipulation was not legally defective and did not prejudice appellant. We, therefore, affirm the trial court's denial of M.K.'s motion to reconsider the stipulation.

I.

After a July 27, 1995 probable cause hearing on the District's neglect petition, M.K.'s grandchildren were removed from her care and placed with E.K., the grandfather. *fn1 On March 4, 1996, the scheduled fact-finding hearing date, *fn2 the government offered a stipulation, *fn3 signed by E.K., his counsel, the guardian ad litem, a social worker and the government, which stated that V.K.'s children were neglected within the meaning of D.C. Code § 16-2301 (9)(C) (1997) *fn4 because V.K. had died and was unable to care for them. M.K. did not object to this stipulation and it was accepted by the trial court, which then set a disposition hearing date to determine proper placement for the children. *fn5

The next day, M.K.'s counsel filed a motion to undo the stipulation, dismiss the neglect petition and close the neglect case against M.K. on the grounds that 1) the stipulation was legally defective because it was signed by a party, E.K., who was not named in the neglect petition; and 2) the stipulation prejudiced M.K. by allowing the court to assert jurisdiction over the children without giving her the right to defend against the government's neglect charges. *fn6 At an April 5, 1996 motions hearing, the court denied the motion, largely on the ground that neither M.K. nor her counsel voiced any opposition to the stipulation when it had been tendered at the March 4, 1996 hearing. Although the court denied the motion, it did agree to hold a full evidentiary hearing on the issue of proper placement, including possible placement with M.K., and, if necessary, to certify the case to another Superior Court judge for review following the disposition. M.K. supported the court's proposal to hold a full evidentiary hearing on the issue of disposition, but her counsel also noted on the record that M.K. still objected to the jurisdiction of the court over the children based on the alleged improper stipulation. *fn7

Following a full evidentiary hearing *fn8 in which the trial court considered extensive witness testimony, the deceased mother's notarized statement indicating that she wanted her children to live with their grandfather after her death, a dispositional report and a guardian ad litem report, both of which recommended placement with the grandfather, and its own interviews with three of the six children, all of whom requested placement with their grandfather, *fn9 the court determined that it was in the best interests of the children to remain with E.K., the grandfather. *fn10

II.

On appeal, M.K. argues that the trial court incorrectly upheld a legally defective stipulation. Her claim that the stipulation is legally defective is grounded in the language of the stipulation, which indicates that the children were neglected due to the death of their mother, but does not reflect that M.K acted as the children's custodian after the mother's death. In addition, M.K. complains that the stipulation is legally defective because it was not signed by her, the only party named in the original neglect petition.

A. Legal effect of death of a parent.

We first address M.K.'s claim that the stipulation is legally defective because the death of a parent is insufficient to establish neglect where the children are cared for by a custodian unless the custodian is deemed to be neglectful. D.C. Code § 16-2301 (9)(C) provides that a neglected child is one whose "parent, guardian, or other custodian is unable to discharge his or her responsibilities." (Emphasis added.) The statute defines a "custodian" as someone "who is acting in loco parentis." D.C. Code § 16-2301 (12)(B); see Fuller v. Fuller, 247 A.2d 767, 770 (D.C. 1968) (defining the term in loco parentis as one who assumes parental status and discharges parental duties). Where a custodian or another parent or guardian is in place, the death of a parent does not automatically render a child "neglected," unless that other parent, guardian or other custodian is adjudged to have neglected or maltreated the child. See D.C. Code § 16-2301 (9)(F) (defining "neglected child" as one "who has received negligent treatment or maltreatment from his or her parent, guardian, or other custodian"); In re B.C., 582 A.2d 1196, 1198-99 (D.C. 1990) (describing the proper inquiry as whether "those who have the legal obligation to insure the children's welfare have not exercised that obligation for any non-financial reason," and concluding that "the only relevant consideration [in a neglect proceeding] is the child's condition"); cf. In re E.H., 718 A.2d 162, 169 (D.C. 1998) (requiring, in case of mentally ill parent, that government must show parent's inability to care for the child due to the mental incapacity as "[n]eglect proceedings are remedial and focus on the child") (citations omitted).

Even assuming that M.K. had been her grandchildren's custodian, caring for them in loco parentis after their mother's death, the time relevant to our inquiry is when the stipulation was accepted by the trial court. At that time M.K. no longer had any caretaking responsibilities for the children and, therefore, could not be their "custodian" under the statute. Although it could be argued that, at the time of the hearing when the stipulation was entered, the children were not neglected because they had been placed under the care of E.K., who was acting in loco parentis pursuant to court order, see In re B.C., 582 A.2d at 1198 (defining "custodian" as one who has "the legal obligation to insure the children's welfare"), the trial court accepted the neglect stipulation based on his counsel's representations that E.K. was unable to adequately care for his grandchildren without government assistance. Absent evidence to the contrary, the trial court did not abuse its discretion in accepting the neglect stipulation based on the death of the mother and the inability of the present custodian to provide proper care for the children, and in exercising its jurisdiction and proceeding to a hearing on the proper placement of the children. See In re D.R., 718 A.2d 149, 151-52 (D.C. 1998) (noting that in neglect proceedings, the "trial court's role is to act as parens patriae," which means that "'the court must act to protect the best interests of the child,'" and appellate court does not reverse the trial court's ...


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