Appeal from the Superior Court of the District of Columbia (N148-04) Hon. Lee F. Satterfield, Trial Judge Hon. Julie Breslow, Magistrate Judge.
The opinion of the court was delivered by: Kern, Senior Judge
Before REID and KRAMER, Associate Judges, and KERN, Senior Judge.
This appeal presents for our determination whether the trial court committed reversible error by affirming an order entered by its magistrate judge after an evidentiary hearing that a minor child, De.S., was a "neglected child" within the meaning of D.C. Code § 16-2301 (9)(A)(ii) (2004 Supp.) because he was "regularly exposed to illegal drug-related activity in the home."
The record reflects that at a hearing on a so-called neglect petition*fn1 the magistrate judge heard testimony that the police had received complaints of drug sales near the house where De.S. and his father lived, as well as various other members of his family.*fn2 Accordingly, the police initiated an undercover investigation and operation in this area. Thus, an undercover officer asked a passer-by near the home of De.S. where drugs could be purchased and was directed to the very house where De.S. was living. Thereafter, the undercover officer obtained entry into this house and observed the sale of what appeared to be crack cocaine in a ziplock bag which was removed from a couch in the living room. As soon as the purchaser left the house other undercover officers stopped him and recovered the bag from his person. The contents were "field-tested" and the results were "positive" for crack cocaine.
Shortly thereafter, other members of the police undercover team stopped a woman who had just left the house of De.S. and recovered from her a package similar to the one they had recovered from the first person arrested. This package also contained cocaine. The police then ceased their undercover operation and applied for and received a warrant to search the house in which De.S. was living with his father because they suspected this house was the source of the drug activity which had been complained about in the neighborhood.
The undercover buys had taken place on February 21, and the execution of the search warrant occurred on March 2. This search of the house where De.S. lived revealed a gun and ammunition in an upstairs bedroom, and two crack pipes, as well as empty ziplock bags, downstairs near the couch where the undercover officer had earlier observed similar bags stashed. The great-aunt of De.S. admitted to the officers that she had been selling drugs from the house, but that she had been tipped off by the woman whom they had arrested in their earlier "sting" operation. After the police arrested the great-aunt, they found heroin on her person.
The magistrate judge at the conclusion of the hearing stated:
We all know what our typical neglect cases involve: dirty houses, absent parents, very seriously unsafe physical conditions in the home like . . . no screens or windows, and floorboards falling in, and . . . things that can clearly cause physical harm. . . . This case doesn't present any of that. (Emphasis added.)
The judge went on to note:
This case presents an extended loving family who is very attached to . . . [De.S.] [who] lost his mom, but . . . has a loving father and a whole host of loving extended family members. . . . This is a child who is clean, healthy, fed, clothed, attending school. . . . He is receiving proper healthcare for his cerebral palsy.
I think [De.S.] was . . . nicely cared for in many, many ways that many of the kids in our neglect ...