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In re Ko.W.

June 07, 2001

IN RE KO.W. AND K.W. S.S., APPELLANT.


Before Wagner, Chief Judge, and Schwelb and Glickman, Associate Judges.

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

Appeals from the Superior Court of the District of Columbia (Hon. Rafael Diaz, Trial Judge)

Argued April 17, 2001

S.S., the father of respondents K.W., born on February 23, 1989, and Ko.W., born on November 24, 1990, appeals from an order barring all visitation between him and his sons. The order was entered without an evidentiary hearing, and the trial court has never made a finding regarding whether the key allegation against the father, namely, that the father sexually abused K.W., was true or false. On appeal, the father contends, in substance, that the denial of visitation was based on an inadequate factual record and insufficient findings, and that the trial judge failed to apply the correct legal standard. We agree and reverse.

I. BACKGROUND

On December 11, 1995, the principal of the elementary school that K.W. was attending called the police to report that D.W., the mother of the two respondents, had struck K.W., then six years old, in the face with her fist, causing a black eye and other bruises. The mother told the police that she felt depressed, and she admitted striking her son. Both respondents were removed from the mother's home and placed in the custody of the Department of Human Services (DHS).

On December 18, 1995, an Assistant Corporation Counsel petitioned the court for an order declaring both boys to have been neglected by the mother. The petition contained no allegation against the father. Attorneys were appointed for the mother and for the father, and a guardian ad litem was appointed for the respondents. The court conditionally released both boys to G.W., their maternal aunt, pending further order of the court.

On March 14, 1996, the mother entered into a stipulation with the District and with the guardian ad litem. In the stipulation, the mother acknowledged that she had struck K.W., as alleged, that she had been depressed at the time, and that her "depression was caused in part by inappropriate use of drugs, specifically cocaine." The mother admitted that she was "presently unable to provide proper control and supervision over the respondents," but she agreed to participate in drug therapy and parenting classes "with a goal of drug rehabilitation of the mother and reunification of the mother and the children." It was agreed that the respondents would continue to live with their maternal aunt pending final disposition. The father was not a party to the stipulation, and no finding was made that he had neglected or abused either of the respondents.

On May 15, 1996, the trial judge entered a disposition order in conformity with the stipulation. The respondents were placed in the third-party custody of the maternal aunt. The disposition order also authorized supervised visitation of the children by the mother. The order further stated:

Visitation is PROHIBITED for [the father for] the following reasons:

Allegations of abuse against respondents.

The prohibition against visitation by the father was apparently based on the following passage in the pre-disposition report, which had been prepared for the court by Andrew T. Donelan, a DHS social worker:

Both children are presently doing very well in the care of their maternal aunt. However, within the past few months, their maternal aunt found the two boys engaged in some sexual activity together. Upon talking to the children about this incident, the boys reported having seen their parents engage in sexual intercourse together. The older boy (K.W.) also reported that his father, [S.S.], would lie down on top of him. Based on these reports, the boys were referred to the Child Protection Center at Children's Hospital for a sexual abuse evaluation in late March.*fn1

At the time that visitation by the father was prohibited, the father had not yet been served with any papers in the case, nor had he appeared in court.

According to representations made to the trial court by the father's appointed attorney, *fn2 the attorney was first able to locate her client in the late summer of 1996. It appears that the father had been made aware of the court case, but he apparently believed that the proceedings were against the mother only, and that they did not concern him. The father appeared in court for the first time at a review hearing on September 10, 1996, and he requested that he be permitted to visit his two sons. In an order entered at the conclusion of that hearing, the trial judge continued in effect the prohibition against visitation by the father.

On September 17, 1996, the father, through appointed counsel, filed a "Motion to Compel Visitation Rights of Father." In his motion, the father denied that he had engaged in any improper conduct vis-a-vis K.W., and he claimed that K.W.'s mind was being poisoned against the father by the maternal aunt:

Neither the Metropolitan Police Department Complaint nor the Superior Court of the District of Columbia Family Division PETITION allege[s] any misconduct by the father toward his children. The mother is the named abuser in both the complaint and the petition.

However, in court the mother and the caretaker made some unsubstantiated allegations based on speculations and interpretations from drawings on the children's walls, misbehavior by the children when the father was not around, and a statement by seven year old [K.W.] that his father got on top of him. This statement was repeated to [the social worker] during testing at The Washington, Assessment and Therapy Services (WATS). During the test [K.W.] described his worst memory as the time "my father got on top of me." No other description is given of the alleged incident. Whether or not the incident took place, or was rough housing or some type of disciplinary action that was not at all of a sexual content is not discussed. Most importantly, whether or not the child is simply remembering an actual occurrence or a suggestion implanted in his mind by his caretaker, his maternal aunt, [G.W.,] or others was not discussed. At the 9-10-96 court review, the father reports he never sexually abused his child and that [G.W.] has publicly accused him of being a rapist. This accusation was made in the presence of the children. She has repeatedly made derogatory remarks about the father in front of the children and made attempts to turn the children against their natural father (at the last court hearing [the] attorney for the father ask[ed] the court to prohibit the caretaker from continuing her attempts to turn the children against their father).

A child of a tender age as [K.W.] can actually be made to believe that something happened even though it never happened. When an event is retold time and time again to a child the child can easily believe that it is true.

Notwithstanding the father's efforts to resume contact with the respondents, his motion for visitation rights remained pending for more than seventeen months. Following each review, the judge extended the prohibition against visitation by the father on account of the prior "allegations of sexual abuse." No hearing was held to determine whether or not the sexual abuse had in fact occurred. The judge did attempt, however, to develop more information regarding whether visitation by the father would be in the respondents' best interest. In an order dated December 31, 1996, the judge referred the father for psychological evaluation and for drug testing.

On February 7, 1997, the father appeared for a psychological evaluation at DHS' Youth Forensic Services Division. In his report of that evaluation, the examining psychologist concluded that the father was more likely to abuse his sons physically than sexually. The psychologist expressed the view that although custody should not be awarded to the father, supervised visitation by the father would not be unreasonable:

While achieving visitation with his sons appears to be a realistic goal for him, his goal of having full custody and parenting them appears to be quite unrealistic. It is unlikely, given the results of this evaluation, that [the father] could adequately parent or care for the children at this time. If he is granted visitation privileges, they should be supervised, and should be closely regulated by observations of [K.W.'s] and [Ko.W.'s] reactions.

With respect to the results of the drug testing, counsel for the District represented at a hearing on October 2, 1987, that the father had tested positive for cocaine, most recently on April 15, 1987. The father did not contest this assertion. According to representations made to the court by the father's attorney, however, the father attended drug testing regularly, and his urine tested positive twice for the presence of cocaine but negative thirty-one times. This representation by counsel for the father was not contradicted by any other participant at the hearing.

On March 13, 1997, the judge directed that the father participate in parenting classes, in a domestic violence program, and in Narcotics Anonymous/Alcoholics Anonymous. The father's compliance (or lack thereof) with these directives is disputed by the parties. On September 30, 1997, the DHS social worker prepared a "Permanency Planning Hearing Report" in which he recommended that ...


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