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In re E.T.A.

August 11, 2005

IN RE E.T.A. A.A., APPELLANT.


Appeal from the Superior Court of the District of Columbia (N893-00) (Hon. Linda D. Turner, Trial Judge).

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

Argued November 3, 2004

Before SCHWELB, WAGNER,*fn2 and REID, Associate Judges.

Opinion for the court by Associate Judge SCHWELB.

Concurring opinion by Associate Judge Reid, with whom Associate Judge SCHWELB joins, at page 8.

Dissenting opinion by Associate Judge WAGNER at page 9.

A.A. is the mother of E.T.A., who was born on May 26, 2000. She appeals from an order of the Superior Court issued on May 17, 2002, committing E.T.A. to the custody of the Child and Families Service Agency (CFSA) on the basis of a finding that E.T.A. was a neglected child. Because the mother has failed to present us with a record from which we can determine whether error occurred, and because her counsel has failed over a protracted period to utilize remedies for the unavailability of a transcript, we affirm.

I.

The trial court's finding that E.T.A. was a neglected child was based on evidence that, due to her mental incapacity, the mother was unable to discharge her parental responsibilities vis-a-vis E.T.A. On August 7, 2002, the mother's present attorney was appointed by the court to represent her on appeal, and counsel was directed to take steps to secure the transcripts of the evidentiary hearings in the case. Two months later, counsel submitted a voucher for these transcripts. On August 8, 2003, the Superior Court's Reporting and Recording Division notified the mother's attorney that the transcripts of proceedings on March 26-28, 2002, April 29, 2002, and May 17, 2002, could not be prepared because there had been a mechanical malfunction of the recording equipment. Notwithstanding this information, counsel took no steps pursuant to D.C. App. R. 10 (c) and 10 (d) to prepare a statement of proceedings and evidence in lieu of the unavailable transcripts.

In due course, the mother's attorney and counsel for the District of Columbia filed their briefs. Because there was no evidentiary record, counsel were unable to, and did not, cite to the record as required by D.C. App. R. 28 (e). The District correctly pointed out in its brief that the mother's claims raised fact-intensive issues that could not be resolved without a transcript. The District noted that the mother's attorney had made no attempt to reconstruct the record in conformity with this court's Rules. No reply brief was filed on behalf of the mother.

When the parties appeared for oral argument on November 3, 2004, there was no record before the court from which the court could determine the validity or lack thereof of the mother's substantive contentions. On November 4, 2004, this court entered an order directing counsel to address the question whether the record should now be remanded to the trial court for preparation of a statement of proceedings and evidence pursuant to Rules 10 (c) and 10 (d). Counsel have now submitted supplemental memoranda.

The judgment of the trial court is presumed to be correct, and it is incumbent upon the appellant to provide this court with a record which affirmatively shows that error occurred. Cobb v. Standard Drug. Co., 453 A.2d 110, 111 (D.C. 1982). Where, as here, a verbatim transcript is unavailable, the appellant has the option to prepare a substitute statement pursuant to Rule 10 (d); if she fails to do so, she forfeits any claim that she has been prejudiced by the absence of a transcript. Cole v. United States, 478 A.2d 277, 283-84 (D.C. 1984).*fn3 In this case, counsel for the mother provided no reasonable explanation for his failure since August 2003 to follow the procedure specified in Rule 10 (c) and (d).*fn4 More than three years have now elapsed since the proceedings for which, as a result of the mechanical failure of the trial court's recording equipment, no transcript is available. This delay, almost half of which occurred after the mother's counsel was apprised of the malfunction, has obviously made it more difficult to reconstruct the record, to the prejudice of E.T.A. and the District. See Cole, 478 A.2d at 286 n.13 ("a significant lapse of time between the trial and the preparation of a [10 (d)] statement will weigh against reliance on the statement").

We recognize that the mother was not personally at fault either with regard to the malfunction of the recording machinery or in relation to her attorney's failure to take the necessary steps to remedy the lack of a transcript. But "[i]n the District of Columbia and generally, the acts and omissions of counsel are imputed to the client even though detrimental to the client's cause." Levi v. District of Columbia, 697 A.2d 1201, 1205 (D.C. 1997) (quoting Ry. Express Agency, Inc. v. Hill, 250 A.2d 923, 926 (D.C. 1969)) (internal quotation marks omitted); Newsome v. District of Columbia, 859 A.2d 630, 631 (D.C. 2004) (per curiam). Although, there is an "outrageous conduct" exception to this general rule, Newsome, id. at 631, and although we recognize the importance in ...


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