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W.D. v. C.S.M.


August 31, 2006


Appeals from the Superior Court of the District of Columbia (DR3169-98) (Hon. Mary Ellen Abrecht, Trial Judge).

The opinion of the court was delivered by: Wagner, Senior Judge

Argued January 14, 2004

Before FARRELL, Associate Judge, and WAGNER,*fn2 and BELSON, Senior Judges.

Appellants, W.D. and B.T., appeal from an order of the trial court granting permanent custody of their minor son, K.T., to unrelated third parties, appellees, C.S.M. and E.T.S., a married couple. Appellees instituted the action by filing a complaint for custody in a domestic relations proceeding asserting as the basis for the court's jurisdiction D.C. Code §§ 11-1101 (4) (2001)*fn3 (providing the Family Division of Superior Court with exclusive jurisdiction of actions seeking custody of minor children) and 16-4503 (specifying grounds for asserting jurisdiction in child custody cases). Guided primarily by statutory factors enumerated in D.C. Code §§ 16-911 (a), -914 and D.C. Code § 16-2353 (b) (termination of parental rights), the trial court granted appellees, who were serving as third party custodians in an ongoing neglect proceeding, permanent custody of the child in this domestic relations case (DR-3169-98c). Preliminarily, we conclude that the trial court exceeded its authority in awarding permanent custody of the child to unrelated third parties in the domestic relations case. Therefore, we vacate its findings and order and remand the case for further proceedings under the applicable neglect statutes and, if appropriate, the subsequently enacted Foster Children's Guardianship Act, D.C. Code §§ 16-2381 et seq. (2006 Supp.) (providing for creation of permanent guardianships). In light of our disposition, we need not address the remaining issues raised on appeal.


K.T. was born to B.T. on December 15, 1997. On December 20, 1997, the Corporation Counsel filed a neglect petition alleging that the mother had attempted to remove the child from the hospital on two occasions against medical advice, that the child had tested positive for cocaine at birth, and that it was believed that B.T. uses cocaine. The petition named as the father, C.T., and stated that he was the primary caregiver for one of B.T.'s other children and was willing and able to care for K.T. The trial court ordered that the child reside with C.T. pendente lite. In March 1998, the guardian ad litem for the child filed a motion to change the child's placement on the grounds that C.T. had failed to provide appropriate care for the child and requested a hearing. A hearing was held on March 9, 1998, and it was determined that C.T. was not the father. W.D. was in court on that date, and he stated that if paternity tests showed that he was K.T.'s father, he wanted custody of the child. The court ordered paternity tests, and it placed the child pendente lite with appellees, C.S.M. and E.T.S. C.S.M. had met B.T. while his law partner represented her in a domestic violence case, and they developed a personal relationship that continued after the firm ceased to represent her. C.S.M. first met the child in January 1998. At the time, C.S.M. and E.T.S. were interested in adopting a baby.

On May 5, 1998, paternity tests confirmed that W.D. was K.T's father. C.S.M. took K.T. to W.D.'s residence so that he could visit with the child on May 11, 1998. On May 22, 1998, the guardian ad litem requested a continuance of the scheduled trial date, which was apparently reset until October 14, 1998. On October 19, 1998, W.D. filed a motion for a home study so that the child could be placed with him, or alternatively for an evaluation of a relative's home. In that motion, he asserted that he had previously requested the study in June 1998. On November 9, 1998, the court entered an order for a home study to determine the propriety of placement of the child with W.D.

On December 4, 1998, the District moved to amend the neglect petition to include an allegation that W.D. had abandoned the child. See D.C. Code § 16-2301 (9)(A). On December 9, 1998, C.S.M. and E.T.S. notified the court in the neglect proceeding that they had filed a verified complaint for permanent custody of K.T. in the Domestic Relations Branch of the Family Division on October 14, 1998 in Case No. 98-DR-33169-C.

Following the neglect trial, the trial court (Judge Diaz) found that K.T. is "a neglected child pursuant to D.C. Code § 16-2301 (9)(C) in that the mother is unable to discharge her parental responsibilities due to her incarceration." The court further found that the government had failed to meet its burden of proving that W.D. had abandoned the child. The court explained in that regard that

[t]he evidence shows that subsequent to being notified of his paternity on May 5, 1998, [W.D.] expressed a willingness to have visitation with [K.T.], and even made effort towards obtaining physical custody of his son. Additionally, [W.D.] has consistently reported to the instant neglect and abuse proceedings, further reinforcing the perception that he harbors a genuine interest in maintaining a parental relationship with respondent.

C.S.M. and E.T.S. requested that the court reconsider its decision finding that the government had failed to prove abandonment, or alternatively, that it vacate that portion of its decision. The court denied the motion for reconsideration. The court entered a formal order granting W.D. supervised visits with the child.

Subsequently, a trial was held on the civil complaint for permanent custody that had been filed by C.S.M. and E.T.S. against the child's parents in October 1998. At the conclusions of the trial, the court (Judge Mary Ellen Abrecht) found that the best interests of the child required granting the complaint for permanent custody. The court specifically found that B.T. is not fit to parent the child, but it declined to address W.D.'s fitness to parent the child. However, the court found that W.D. had not grasped his opportunity interest to parent the child. In deciding the case, the court relied upon the statutory factors set forth in D.C. Code §§ 16-911 (a), -914 (custody incidental to divorce actions) and D.C. Code § 16-2353 (b) (termination of parental rights).*fn4


Although the domestic relations case filed by appellants was consolidated with the neglect proceeding, the trial court's award of permanent custody to appellees was based upon its apparent view of its authority to act under D.C. Code §§ 11-1101 and 16-911, -914.*fn5 We reach this conclusion for the following reasons. First, the order was entered in response to appellees' complaint for custody which they candidly characterize as a "civil, private-party, child custody case that had been filed by appellees in the DR branch pursuant to D.C. Code §§ 11-1101 (4), 16-301 (b)(3), and 16-4503." Second, the trial court's order granting appellees' permanent custody specifies that it made its findings of fact and conclusions of law in light of the relevant facts set forth in "D.C. Code § 16-911 (a)[(5)], -914 dealing with custody. . . ."*fn6 Third, the neglect case was consolidated with the domestic relations case only after completion of the trial on the neglect complaint, and the entry of a disposition order providing for private placement with appellees for an indeterminate period not to exceed two years, specified visitation rights for the father and a date for an intermediate review. Fourth, the purpose of consolidation was not to address the issues in the context of a neglect proceeding, but rather, as appellees concede, to provide for the child's parents the benefit of free legal services from the attorneys who had represented them in the neglect proceeding.*fn7 Therefore, we consider whether the trial court had the authority to grant permanent custody of a minor child, who was under the court's jurisdiction in a neglect case, to third parties in a proceeding filed by them under Chapter 9 ("Divorce, Annulment, Separation, Support, etc.") of the domestic relations laws.

This court has held that the Superior Court's authority under D.C. Code § 11-1101 and §§ 16-911, -914 contemplates an award of custody as between parents. T.S. v. M.C.S., 747 A.2d 159, 163-64 (D.C. 2000). In reaching this conclusion in T.S., this court undertook an extensive analysis of the statutory provisions related to the court's authority under the divorce laws in Chapter 9 of the Code, where §§ 16-911, -914 appear.*fn8 The court observed that the provisions in this chapter focus on parents and concluded that, read in context, "there is no reason to believe that the drafters had in mind a custody arrangement not involving either parent." Id. at 164. Particularly relevant to this case, the court stated that unlike the neglect statutes, "the divorce statutes do not include the procedural safeguards to which a parent is entitled before custody can be taken from the parent and awarded to a non-parent." Id. at 163. Therefore, "the [Superior Court's] authority under the divorce law . . . does not permit [it] to conduct a de facto neglect proceeding without invoking the procedures prescribed by the legislature for cases of this kind." Id. at 164 (internal footnote omitted).

The protections afforded by the child neglect statutes, D.C. Code §§ 16-2301 et seq., are extensive and substantial both before and after an adjudication of neglect. We focus here primarily on the protections afforded after an adjudication of neglect and the entry of a disposition order because of the status of the neglect case.*fn9 In the neglect case involving the child, there had already been an adjudication that the child was neglected by reason of the mother's inability to discharge her responsibility due to her incarceration. See D.C. Code § 16-2301 (9)(C). Although the court determined in that same proceeding that the evidence failed to establish that appellant, W.D., had abandoned the child as alleged under D.C. Code § 16-2301 (9)(A), the court entered a disposition order providing for private placement with appellees pursuant to D.C. Code § 16-2320 (a)(3)(C).*fn10

Following the entry of such a disposition order, substantial protections are afforded under the child neglect statutes for the protection of the child and the rights of the parents. When the court removes the child from a parent's custody, it can do so for only a period not to exceed two years unless that time is extended by further court order. D.C. Code § 16-2322 (a)(2). Prior to entry of an order vesting legal custody in someone other than the child's parents, a report must be submitted to the court setting forth, among other things, a plan for alleviating the harm that intervention was designed to alleviate, including recommended services to address any harms, including, e.g., family counseling and parenting classes. D.C. Code § 16-2319 (c)(1)(B). The plan would also set forth "the estimated time in which the goals of intervention may be achieved or in which it will be known that the goals may not be achieved[,]" and "plans for maintaining contact between the parent and child through visitation rights in order to maximize the parent-child relationship consistent with the well-being of the child." D.C. Code § 16-2319 (c)(1)(C) & (c)(2)(D). The court has authority to order D.C. public agencies to provide services that are needed and within the agency's authority. D.C. Code § 16-2320 (a)(5). The services provided and the progress made would be monitored regularly by the court. Specifically, "periodic reviews are required so that the court may determine whether it remains necessary for the child to be in the custody of a non-parent." T.S., supra, 747 A.2d at 165 (citing D.C. Code § 16-2323). Prior to the review hearing, a report must be filed by the agency or entity responsible for supervision of services to the child, the child's parents or custodian, including, but not limited to, information concerning: (1) services provided to the child and his or her parent, guardian or other custodian; (2) evidence, if any, of amelioration of the conditions that resulted in the neglect adjudication; (3) an evaluation of the cooperation of the parent or custodian with the agency or other entity involved; (4) the extent of visitation and explanations for infrequent or no visitation; (5) "[t]he estimated time in which the child can be returned to the home"; and (6) the agency's intention to initiate through the Corporation Counsel a motion requesting termination of parental rights and the reasons for not doing so. D.C. Code § 16-2323 (d).*fn11 If the court finds that the child's care by the non-parent is no longer required, it may order the child to be returned home and provide for supervision or other services. D.C. Code § 16-2323 (f)(1).*fn12 Reasonable efforts to reunify the family, and if not, to make permanent plans for the child's future are an integral part of the child neglect statutory scheme.*fn13

Appellees' complaint seeking custody in the domestic relations proceeding was filed before the child had been adjudicated neglected.*fn14 The trial court's order in the domestic relations case awarding permanent custody to appellees was entered prior to the first scheduled review under the terms of the neglect disposition order entered under D.C. Code § 16-2320. This procedure effectively bypassed the extensive protections for the parent and child that govern neglect proceedings.

In T.S., supra, this court reversed the trial court's order awarding permanent custody of the parties' two children to their maternal grandmother, their pendente lite custodian, in a suit filed by the father against the mother for divorce and modification of a prior consent order placing custody in the mother. Id. 747 A.2d at 160-61. There was an open neglect case in which it had been determined that the father had abused one of the parties' two children, and custody was placed with the mother. 161.In the domestic relations case, the court found that the mother had failed to protect her daughter's needs after allegations of abuse by a cousin, that her home environment was "unfit," and that the children were thriving under the temporary custody of the grandmother. Therefore, the court modified the original custody order and awarded permanent custody to the grandmother.*fn15 162. This court held that the trial court could not remove the children from the mother's custody without instituting neglect proceedings where she would be accorded the safeguards provided under the neglect statutes. Id.

That principle is applicable to the present case. Here, it was determined in the neglect proceeding that the father had not neglected the child. Although the court provided for the child to remain with appellees in its initial disposition order, under the neglect statutes that does not end the protections afforded to the parent nor eliminate the opportunity for the parent to obtain custody of the child and reintegrate the child into the parent's family.*fn16 The procedure employed here bypassed those protections that include reasonable efforts at reunification of the child with his family. An award of permanent custody in a domestic relations case does not carry with it the safeguards of periodic reviews, family reunification efforts, reports and evaluation of parental cooperation, and careful and comprehensive permanency planning for the child's future.*fn17 See D.C. Code § 16-2323. Even the parent whose conduct or circumstances formed the basis for a finding of neglect is entitled to these safeguards under the neglect statute. Id. Clearly, a parent who was found in the neglect proceeding not to have neglected the child, as appellant W.D. was here, would be entitled to such protections. See T.S., supra, 747 A.2d at 166 (holding that the court lacked authority in the context of a domestic relations proceeding to award custody of a child to a third party based upon alleged abuse where the mother had never been afforded the safeguards of the neglect statutes).

Appellees argue that the Superior Court's authority to award permanent custody in this case does not derive from the neglect statutes, but from an "independent and altogether different judicial authority." They contend that they could have filed for custody of the child in a domestic relations case even if there had never been a neglect proceeding. They argue that just as there is no statutory authority for the court to adjudicate disputes between unmarried biological parents, there need not be specific statutory authority to adjudicate disputes between biological parents and third parties. They contend that the court's authority to adjudicate such disputes derives from its general statutory authority under such provisions as D.C. Code § 11-1101 (4) (setting forth the proceedings over which the Family Division of Superior Court (now Family Court) has exclusive jurisdiction), D.C. Code § 21-101 (b) (addressing the power of the court to appoint a guardian for minor children), and D.C. Code § 16-4503 (defining when Superior Court may exercise its jurisdiction to make child custody determinations in multi-jurisdictional cases).

In Ysla v. Lopez, 684 A.2d 775 (D.C. 1996), cited by appellees in support of their position, this court held that the same statutory factors and procedures that apply to custody of married parents govern the award of custody to unmarried parties, while observing that D.C. Code §§ 16-911, -914 (providing respectively for pendente lite custody orders pending actions for divorce or annulment and permanent orders after decree) are not directly applicable to actions between parties who were never married to each other. Id. at 778. However, in Ysla, this court was guided by the absence of any reason to believe that the legislature intended that the same statute should not apply to custody disputes between parents who had never been married. Id. On the contrary, the court found that there was a clear expression of legislative intent that the same factors should govern in custody disputes between unmarried parents found in D.C. Code §§ 16-911 (a)(5), -914 (a)(2) (providing for the court to make determinations in the best interest of the child, including contact with the children and shared responsibilities, without regard to the parents' marital status). Id. at 778. Further buttressing this conclusion are provisions in the domestic relations chapter making clear that the rights, duties, privileges and obligations for parents is the same whether the children were born in or out of wedlock. See D.C. Code §§ 16-907, -908.*fn18 That such rights and responsibilities would be subject to the court's jurisdiction under the same chapter of the Code as parents who had been married seems patent.

The same cannot be said with respect to a child who is under the court's jurisdiction by reason of the pendency of a neglect proceeding. Put another way, there is no reason to believe that the legislature intended to extend the reach of the court's domestic relations jurisdiction and its standards and procedures into an area where it had provided for extensive procedures specifically designed to protect abused and neglected children. The court's general powers to adjudicate matters involving children under other sections of the Code, cited by appellees, do not support their argument that these provisions were intended to be used, or can be used, as a vehicle to bypass the operation of the neglect statutes. The statutory procedures governing abused and neglected children are comprehensive and extensive. See T.S., supra, 747 A.2d at 164-65. The question is whether the legislature has sought to limit the court's inherent authority. See Ysla, supra, 684 A.2d at 778 (citing Taylor v. Taylor, 508 A.2d 964, 968 (Md. 1986)). In this area, we conclude that the legislature has preempted the power of the court to exercise its inherent authority to override the procedures established for determining the future of abused and neglected children.*fn19

Appellees argue that there is no good reason why neglect cases must be resolved under the neglect statutes by reunification of the family or by termination of parental rights. They contend that the trial court's order awarding them permanent custody provides a middle ground between these alternatives. However, the entry of an order for permanent custody, at the time it was entered, was not sanctioned by law.

Subsequent to the entry of the court's order awarding permanent custody to appellees, the Council of the District of Columbia enacted in final form the Foster Children's Guardianship Act, D.C. Code §§ 16-2381 et seq. (2006 Supp.) (Act) which authorizes the creation of a permanent guardianship. The general purpose of the Act is to:

(1) [e]ncourage stability in the lives of certain children who have been adjudicated to be neglected and have been removed from the custody of their parent by providing judicial procedures for the creation of a permanent guardianship in the circumstances set forth in this subchapter;

(2) [e]nsure that the constitutional rights of all parties are recognized and enforced in all proceedings conducted pursuant to this subchapter while ensuring that the fundamental needs of children are not subjugated to the interests of others; and

(3) [i]ncrease the opportunities for the prompt permanent placement of children, especially with relatives, without ongoing government supervision.

D.C. Code § 16-2381 (2006 Supp.). The court appointed guardian operates under a guardianship order that "enumerates the permanent guardian's rights and responsibilities concerning the care, custody, and control of the child." D.C. Code § 16-2382 (a)(2) (2006 Supp.). A permanent guardianship may be established only if the child has been adjudicated neglected pursuant to D.C. Code § 16-2317 and if the court determines that:

(1) [t]he permanent guardianship is in the child's best interests;

(2) [a]doption, termination of parental rights, or return to parent is not appropriate for the child; and

(3) [t]he proposed permanent guardian is suitable and able to provide a safe and permanent home for the child.

D.C. Code § 16-2383 (c)(1)-(3) (2006 Supp.). The entry of a guardianship order does not terminate the parent-child relationship including:

(1) [t]he right of the child to inherit from his or her parents;

(2) [t]he parents' right to visit or contact the child (except as limited by the court);

(3) [t]he parents right to consent to the child's adoption;

(4) [t]he parents right to determine the child's religious affiliation; and

(5) [t]he parents' responsibility to provide financial, medical and other support for the child.

D.C. Code § 16-2389 (c)(1)-(5) (2006 Supp.). Thus, the Act provides this additional option to the Family Court by which it can achieve permanency for the neglected child while ensuring the fundamental rights of all parties.*fn20 See In re A.G., 900 A.2d 677 (D.C. 2006).

In light of all of the foregoing considerations, we conclude that the proper disposition of this appeal requires that the findings of fact and order of the trial court awarding permanent custody to appellees must be vacated and that the case must be remanded to the trial court for further proceedings under the neglect statutory scheme, including proceedings in conformity with the Act, if appellees choose to pursue that course, consistent with the circumstances as they exist and with this opinion.*fn21

Therefore, we reverse and remand the case to the trial court with instructions to vacate the findings and order granting permanent custody to appellees in the domestic relations case and for further proceedings in the neglect proceedings consistent with this opinion.*fn22

So ordered.*fn23

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