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In re Am. V.


October 10, 2003


Appeals from the Superior Court of the District of Columbia (N-245-97, N-246-97, N-249-97) (Hon. John H. Bayly, Jr., Trial Judge)

Before Wagner, Chief Judge, and Terry and Farrell, Associate Judges.

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

Argued January 23, 2003

These consolidated appeals arise from three orders in which the trial court determined that three children were neglected, as that term is defined in D.C. Code § 16-2301 (B) and (C) (2001). *fn1 After the court's initial determination of neglect, the mother (appellant P.V.) retained custody of all three children. A short time later, however, the children were removed from appellant's custody after it became known that she had not completed certain court-ordered parenting classes and that she had resumed her use of illegal drugs. After a final disposition hearing, the children were committed to the custody of the Department of Human Services ("DHS"). Before this court, appellant challenges the trial court's determination that the children were neglected and their resulting commitment to DHS. *fn2 We hold that there was sufficient evidence to support a finding of neglect under D.C. Code § 16-2301 (9)(B), but not under D.C. Code § 16-2301 (9)(C). Accordingly, we vacate the adjudication of neglect under section 16-2301 (9)(C), and affirm the neglect adjudication under section 16-2301 (9)(B) and the final order committing the children to the custody of DHS.


Appellant is the mother of Am. V., Ak. V., and An. V, who are now fourteen, eleven, and six years old, respectively. In March 1997 the Child and Family Services Division of DHS became involved with appellant after she was arrested for destruction of property. Another complaint was made about appellant in September of the same year, when DHS was informed that the children were "poorly dressed, unsupervised, and were without appropriate food and supplies . . . and that the mother left them alone frequently." Also in September 1997, DHS was contacted by teachers at Malcolm X Elementary School, who reported that Am. V. and Ak. V., the two oldest children, were "com ing to school late consistently every day," that their "appearance was dirty [and] their clothing was dirty" and that Am. V.'s "hair was uncombed." At the hearing below, these conditions were verified by Bethenia Taylor, a teacher at Malcolm X, who described Am. V.'s appearance as "very, very unclean." Her clothing "appeared not to have been washed," and the skin on her neck had "dirt that was baked in." Am. V. came to school in this condition "just about every day." Ms. Taylor also told of Am. V's chronic tardiness, which was also a problem with Ak. V.

When the children's assigned social worker from DHS conducted a home visit, she found that "the home conditions were deplorable, disorganized, clothing all over the place . . . the sheets in the bedroom [and] the pillow cases were filthy black. I had to tell the [mother] that she has to do laundry." At that point the social worker decided to arrange for a homemaking service for the family. However:

That did not work out. We made three attempts to get that service in the home, and on each attempt the mother was not home even though she was notified of the appointment. And then, finally, the service began, but was terminated within . . . two visits because she would not cooperate.

The social worker made monthly home visits. She testified, however, that sometimes she had to make return visits because appellant "wouldn't answer the door, or sometimes we learned that she was home and just would not respond . . . she wouldn't let us in." Consequently, for about two months DHS was "unable to do a home visit to find o ut what was going on in the ho me . . . ."

At the hearing on the three neglect petitions, the trial court also heard testimony from the children's teachers, social workers, and appellant's drug counselor. Appellant was not present at the hearing, however, nor did her counsel present any witnesses. At the close of the hearing, the court found that "a pattern of neglect" had existed "over an extended period of time" with respect to the children's hygiene, clothing, and timely attendance at school which was not due to a lack of financial means. The court also found that appellant had failed to give Am. V. certain prescribed medication, *fn3 and that she was routinely uncooperative with the assigned social worker and had even refused to speak to her. Finally, the court concluded that because of appellant's recent drug use, she was unable to fulfil her responsibilities as a mother.

A disposition hearing was scheduled for another date about six weeks later. Before that hearing took place, however, the children's guardian ad litem filed a motion alleging that appellant had not completed certain court-ordered parenting classes and that since the earlier hearing she had again started to use narcotics. The motion also stated that on at least one occasion appellant had failed to pick up the children from school, and that the social worker had been denied access to the children when attempting to monitor their safety. *fn4 After an emergency hearing (which appellant again did not attend, although her counsel did), the court ordered that the children be removed from appellant's custody and that the two oldest children be placed in foster care.

At the disposition hearing a month later, the court ordered: (1) that all three children be committed to DHS; (2) that Am. V. and Ak. V. remain with the foster parents who had been caring for them since the earlier o rder; (3) that An. V., the youngest child, be taken from appellant's home immediately; (4) that Ritalin be given to Am. V., as recommended by a doctor after a psychiatric evaluation; *fn5 (5) that a psychiatric evaluation of appellant be conducted; (6) that appellant be given reasonable visitation rights; and (7) that DHS begin a search for suitable family members for the children to live with. The court also directed, however, that reunification of appellant and her children should be a priority and that the matter be set for review in six months. *fn6


The government has the burden of proving by a preponderance of the evidence that a child is neglected. See, e.g., In re A.S., 643 A.2d 345, 347 (D.C. 1994); D.C. Code § 16-2317 (c)(2). In determining whether this standard has been met, this court "must consider the evidence in the light most favorable to the government, giving full play to the right of the judge, as the trier of fact, to determine credibility, weigh the evidence, and draw reasonable inferences." In re T.M., 577 A.2d 1149, 1151 (D.C. 1990) (citations omitted). We will reverse a finding of neglect only if it is "plainly w rong or without evidence to support it." D.C. Code § 17-305 (a) (2001); see, e.g., In re A.S., 643 A.2d at 347.

Furthermore, in reviewing the trial court's findings, this court must always bear in mind that "[n]eglect proceedings are remedial and focus on the child; they are critically different from criminal prosecutions, which are primarily concerned with the allegedly abusive parent." In re S.G., 581 A.2d 771, 775 (D.C. 1990); see also In re S.K., 564 A.2d 1382, 1388 (D.C. 1989). As we have held in other neglect cases, "[t]he relevant focus for the court . . . is the children's condition, not the [parent's] culpability." In re B.C., 582 A.2d 1196, 1198 (D.C. 1990). This is true because "[n]eglect does not require a finding of parental fault, only the inability or unwillingness to provide proper care for the child." In re E.H., 718 A.2d 162, 169 (D.C. 1998) (citation omitted).

In this case the government sought to prove that appellant's children were neglected within the meaning of D.C. Code § 16-2301 (9)(B) and (C). In the context of this case, neglect under subsection (9)(B) required a showing that as a result of the children's poor dress, lack of cleanliness, excessive tardiness at school, appellant's uncooperative conduct with social workers, and her renewed drug use, the children were "without proper parental care or control . . . [or] education as required by law, or other care or control necessary for [their] physical, mental, or emotional health, and [that] the deprivation [was] not due to the lack of financial means." Neglect under subsection (9)(C) required a showing that as a result of appellant's drug use, she was "unable to discharge . . . her responsibilities to and for the [children] because of . . . physical or mental incapacity." In light of all the evidence, we hold that the government proved by a preponderance of the evidence that the children were neglected under subsection (9)(B), b ut not under subsection (9)(C).

A. Neglect under section 16-2301 (9)(B)

School teachers familiar with the two older children (the youngest was not yet in school) testified that both of them were chronically tardy, and that the school's counselor and one of their teachers contacted appellant directly about the tardiness problem. Social workers and a teacher also testified th at Am. V. was "very, very unclean." *fn7 Furthermore, appellant's home was described by visiting social workers as extremely disheveled and filthy. When attempts were made by DHS to have the house cleaned by an outside service, the cleaners could not gain access to the home on three occasions because appellant was not there, even though she had been notified in advance of the appointments. Social workers also testified that appellant was uncooperative when they arrived at her home to check on the children, in some cases being conspicuously absent even though she had been contacted before their visit. The only significant improvement in the children's appearance and hygiene occurred after DHS workers purchased new school uniforms and detergent with which to wash them.

Finally, evidence was presented that appellant had a history of drug abuse. While it temporarily subsided after treatment, there was uncontroverted evidence that she was readmitted into a rehabilitation program shortly before the original neglect hearing in January 1998. It was also stipulated that appellant had tested positive for cocaine just one month before the January hearing. *fn8 Given this evidence, as well as the trial court's finding that the government witnesses were credible, the court's determination of neglect under subsection (9)(B) was not "plainly wrong." See D.C. Code § 17-305 (a). Viewing these factors collectively, the court could reasonably conclude, in the language of the statute, that the children suffered from a lack of "proper parental care . . . necessary for [their] physical, mental, or emotional health." See In re O.L., 584 A.2d 1230, 1233 (D.C. 1990) (in determining whether a child is neglected, a court must look at the evidence in its entirety); see also In re S.K., 564 A.2d at 1389 (Schwelb, J., concurring) ("the judge must know as much as reasonably possible about [the child's] situation"). *fn9

B. Neglect under section 16-2301 (9)(C)

The trial court also ruled that the children were neglected under D.C. Code § 16-2301 (9)(C) because appellant was "unable to discharge her responsibilities to the children because of her drug addiction." The record, however, is devoid of evidence showing a causal relationship between appellant's drug addiction and the children's neglect. Something more than the mere existence of a drug problem was required in order to support a finding that, because appellant had one, her children were neglected as a consequence. See In re M.D., 758 A.2d 27, 32 n.9 (D.C. 2000) (it is insufficient for the government merely to show that the parent is a drug user; "the deleterious impact of that drug abuse" must also be shown); see also 1 ANN M. HARALAMBIE, HANDLING CHILD CUSTODY, ABUSE, AND ADOPTION CASES § 11.13, at 591 (1993) ("Generally, the mere existence of a parent's alcoholism or substance abuse does not constitute grounds for a [finding of neglect] unless the parent demonstrates an unwillingness or inability to properly care for the child").

While there was some indication that appellant's drug problems may have contributed to the neglect, that was insufficient, standing alone, to prove by a preponderance of the evidence *fn10 that she was "unable to discharge . . . her responsibilities [to the children] because of . . . physical or mental incapacity." D.C. Code § 16-2301 (9)(C). This language is crucial: the statute, by using the words "because of," requires the government to prove a causal nexus between appellant's drug abuse and the neglected condition of her children. Without any evidence of such a nexus, the adjudication of neglect under subsection (9)(C) cannot be sustained.


In addition to challenging the adjudication of neglect, appellant argues that the trial court erred when it committed her children to the custody of DHS. *fn11 She contends that even if all the allegations made at the neglect hearing were true, such commitment was still unwarranted and interfered with her liberty interests. *fn12 While the decision to remove the children from their parent is a difficult one, we cannot discern any legal error or any abuse of discretion in the trial court's conclusion that the best interests of the children required their commitment to DHS. See, e.g., In re A.B.E., 564 A.2d 751, 755 (D.C. 1989) (while the rights of a natural parent to raise a child are subject to due process protection, "these rights are not absolute, and must give way before the child's best interests"); In re M.M.M., 485 A.2d 180, 184 (D.C. 1984) (parent "cannot insist that . . . [she] has an interest which should prevail" over that of the child).

This court has often held that it will not reverse a decision to commit a neglected child unless the appellant can show that the trial court abused its discretion. See, e.g., In re D.R.M., 570 A.2d 796, 803 (D.C. 1990); In re D.I.S., 494 A.2d 1316, 1323 (D.C. 1985). In reviewing such decisions, our task is to ensure "that the trial court has exercised its discretion within the range of permissible alternatives, based on all relevant factors," and then to consider whether the decision is supported by "substantial" reasoning. Id. (citation omitted). Given the trial court's finding that appellant failed to give her children appropriate care, we conclude that the court properly assumed its role as parens patriae in order "to protect the best interests of the child[ren]" and provide the necessary relief. In re J.J.Z., 630 A.2d 186, 193 (D.C. 1993) (citations omitted). *fn13

It is true that appellant, as a natural parent, has a "fundamental liberty interest" in the care and custody of her children which "does not evaporate simply because [she has] not been [a] model parent[ ] . . . ." Santosky v. Kramer, 455 U.S. 745, 753 (1982). The "paramount" concern in neglect proceedings, however, "is the child's welfare, and all other considerations, including the rights of a parent to the child, must yield to [the child's] best interests and well-being." Davis v. Jurney, 145 A.2d 846, 849 (D.C. 1958).

Given the finding of neglect under section 16-2301 (9)(B) and the evidence supporting that finding, the trial court did not abuse its discretion in deciding that the children should be committed to DHS. It was reasonable for the court to conclude that leaving them with appellant, when there was little or no evidence that anything was being done or would be done to improve their situation, would not have been in their best interest. See In re J.J.Z., 630 A.2d at 193. While appellant clearly had an interest "in the care, custody and management" of her children, their well-being took precedence over her parental rights. See Santosky, 455 U.S. at 753; In re M.M.M., 485 A.2d at 184.


The adjudication of neglect under D.C. Code § 16-2301 (9)(C) is vacated. The adjudication of neglect under D.C. Code § 16-2301 (9)(B) and the order committing the children to the custody of DHS are both affirmed.

So ordered.

FARRELL, Associate Judge, concurring:

The trial judge found that appellant's eight-year history of cocaine and alcohol use -- including the fact that she tested positive for cocaine a month before the hearing -- had contributed causally to the neglect of her children. I do not find that determination clearly erroneous (or "plainly w rong"), as does the court. The trier of fac t could reasonably infer that appellant's pattern of indifference to the care and cleanliness of the children and her refusal to cooperate with the social workers was caused substantially by her inability to remain drug-and alcohol-free. D.C. Code § 16-2301 (9)(C). Importantly, though, while not suggesting what additional proof of a causal relation would have sufficed, this court does not imply that expert testimony beyond that of a drug treatment counselor or social worker (such as testified in this case) is needed to establish causation in this context. With that assurance, at least, I join the court in upholding the adjudication of neglect under § 16-2301 (9)(B).

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