Appeals from the Superior Court of the District of Columbia (GDN 440-00) (Hon. Lee F. Satterfield, Trial Judge) (Hon. Carol A. Dalton, Magistrate Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before TERRY, REID and GLICKMAN, Associate Judges.
In this case, appellant S.B., the biological mother of D.B., appeals from the trial court's order denying her motion to review a magistrate judge's order of judgment as untimely. S.B. challenged the order of a magistrate judge granting permanent guardianship of D.B. to the child's paternal grandparents. She argues on appeal that (1) her motion for review of the magistrate judge's order was timely pursuant to Super. Ct. Gen. Fam. R. D (e) and Super Ct. Civ. R. 6 (3); (2) the order effectively and improperly terminates her right to visit her daughter; and (3) several conditions imposed on her by the magistrate judge's visitation schedule were not based on sufficient evidence.
We hold that Super. Ct. Civ. R. 6 (e) applies to motions for review filed in the Superior Court under Super. Ct. Gen. Fam. R. D (e), and that S.B.'s motion was therefore timely. However, we conclude that the magistrate judge's guardianship order placing D.B. with her paternal grandparents in New Jersey, and conditioning visitation on S.B.'s willingness to receive therapy and undergo a medication assessment, did not effectively terminate S.B.'s visitation rights. We therefore affirm the judgment of the trial court.
D.B. was born on February 26, 1995, to S.B. Her biological father, D.L., is presently incarcerated in Ohio and has consented to the proposed guardianship. On March 31, 2000, when D.B. was five-years-old, the District of Columbia, through the Child and Family Services Agency ("CFSA"), filed a petition in the Superior Court alleging that D.B. had been neglected based on allegations of sexual abuse. The petition asserted that D.B. had been sexually assaulted by an "unknown adult male" while "she was outside playing at her cousin's . . . home," and that upon learning of the assault, S.B. failed to report the incident to the police or have D.B. medically examined as recommended by her pediatrician; moreover, she continued to leave D.B. in her cousin's care. D.B. was released to her mother on the conditions that she stay away from her cousin's home and receive therapy. S.B. entered into a stipulation of neglect on August 1, 2000.
On February 8, 2001, after a disposition hearing in the Superior Court, D.B. was removed from her mother's care and placed with her paternal aunt, S.L. S.B. was granted unsupervised visitation with her daughter at the discretion of D.B.'s social worker. On May 15, 2001, D.B. was again released to her mother, this time under the protective supervision of the Superior Court. The placement was conditioned on S.B.'s participation in weekly therapy classes, D.B.'s participation in both individual and family therapy classes, and that D.B. continue to receive her daily medication.
D.B. remained with her mother until January 11, 2002, at which time she was removed from her mother's care because the Superior Court found that she was "not getting [her] medicine" and she was "not going to school." D.B. was placed in a therapeutic foster home. On February 5, 2002, S.B. entered into a second stipulation, acknowledging that she had failed to comply with the terms of the court's February 8, 2001 dispositional order. S.B. admitted that she had failed to take D.B. "to many of her therapy sessions" and "most of the family therapy [sessions]," and that during the 2001-2002 school year, D.B. had "been absent 21 times and tardy 32 times." The Superior Court revoked protective supervision and committed D.B. to the care of the CFSA. On April 30, 2002, the case was transferred to a magistrate judge.
The permanency goal, following a June 17, 2002 hearing before the magistrate judge, was changed to adoption or guardianship by a relative. In July of 2002, in accordance with this goal, D.B. was conditionally released to D.C. and J.W.C., her paternal grandparents, who live in Willingsboro, New Jersey. S.B. was granted supervised visitation with her daughter every other weekend;*fn1 D.B.'s maternal grandmother, M.D., was granted unsupervised visitation. On September 29, 2003, the C.'s filed a motion for guardianship, seeking permanent guardianship of D.B pursuant to D.C. Code § 16-2381 et seq. (2001). A guardianship pre-trial hearing was held on January 14, 2004. After reviewing the psychological report of S.B. prepared by a court-appointed psychiatrist, and observing that "the mother's behavior is . . . out of control," the magistrate judge limited S.B.'s visitation with D.B to one supervised telephone call per week. The magistrate judge also denied S.B.'s "oral motion to change [D.B.'s] placement."
On March 25, 2004, the magistrate judge convened a hearing on the C.'s motion for guardianship. The appellees presented the testimony of Kelly Calaway, the CFSA supervisor assigned to D.B.'s case, and that of the potential guardians, D.C. and J.W.C. Dr. Galler, a court-appointed psychiatrist, testified in regards to S.B.'s ability to safely visit with her daughter.
Ms. Calaway opined that it was in D.B.'s best interests for the C.'s to be granted guardianship. She observed that in the nearly two years that D.B. had lived with the C.'s in New Jersey, S.B. had only visited her on two occasions, and that both visits occurred in Washington, D.C., when the C.'s drove S.B. to see her mother. S.B. had never traveled to New Jersey, even though M.D., D.B.'s maternal grandmother, had traveled from Washington, D.C. to New Jersey four times. Ms. Calaway did not believe "that distance was a factor" in S.B.'s failure to visit her daughter; rather, she believed that the "relationship between S.[B.] and the C.'s" may have interfered with "setting up visitation." Ms. Calaway also observed that in the nine weeks preceding the guardianship hearing, S.B. missed three phone calls with D.B. D.C. testified that she has a very strong bond with D.B., that D.B. views her as her mother, that she is committed to loving D.B. as her own child, and that it is D.B.'s desire to remain in New Jersey. D.C. observed that D.B. has changed for the better since moving to New Jersey. When D.B. first moved to New Jersey, "[s]he was out of control." "She would throw tantrums," and "[i]f she was asked to do something, she would huff and puff, stomp up the steps, [and be] very disruptive." But now, "[s]he's in control." "She stops and she tries to think before she opens her mouth, before she do[es] something that she knows she['s] not supposed to do." D.C. also observed that D.B. is very close with D.C.'s daughter, I.C., and that "[t]hey shop, . . . bike ride. . . . play soccer . . . . [and] bond as sisters."
In regards to visitation, D.C. testified that she does not "want to interrupt the relationship between D. and her parents." She believed that D.B. "should have a good relationship with her mother and with her father," and that she "would like to see the visitations continue between [the two]" because this "will help D.[B.] to develop a more emotional attachment to her mother." D.C. stated that she supports "regular phone contact, [and] supervised visits between D. and her mom." In the nearly two years that D.B. lived in New Jersey, she had only missed one scheduled visitation in Washington, D.C., due to an "emergency." She had, however, traveled to Washington "four times" so that D.B. could visit with her mother. Finally, D.C. acknowledged that D.B.'s visits with her mother were not always positive, and that S.B. had "upset" D.B. on several occasions.*fn2
Dr. Galler diagnosed S.B. with a "borderline personality disorder." He found that S.B. "has almost no insight into herself [or] . . .[her] problems," and that she has "almost no capacity to empathize and understand the workings of other people's minds." He explained that "[s]he's just unable to comply with either common sense or the social worker, as well as the grandparents who are currently taking care of her," and that "[s]he cannot control her angry outbursts . . . [or] her hurtful comments." In regards to visitation, Dr. Galler recommended that if S.B. could act "appropriately" with her daughter, that she be granted "supervised visits at least 4 times a year." He also concluded that supervised phone visitation might also be ...