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In re N.D.

October 12, 2006

IN RE N.D. K.D., APPELLANT


Appeal from the Superior Court of the District of Columbia (N-675-98) (Hon. Judith E. Retchin, Trial Judge).

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

Submitted November 4, 2003

Before RUIZ, Associate Judge, and KING and TERRY, Senior Judges.*fn1

Appellant K.D. brings this appeal from the trial court's decision to revoke her protective supervision of her daughter N.D.*fn2 She presents two claims of error. First, appellant contends that there was insufficient evidence to permit the trial court to find that she had violated the order granting protective supervision. Second, she maintains that she was denied due process of law because the Corporation Counsel*fn3 was allowed to make an oral motion to revoke protective supervision instead of being required to file a written motion. We find no error, and accordingly we affirm the trial court's order.

I.

In May 1998 the District of Columbia filed a petition stating that eight-year-old N.D. was a neglected child under D.C. Code § 16-2301 (9)(B) and (E) (1997).

The petition was based on a report that N.D.'s ten-year-old sister had been sexually abused by her mother's live-in boy friend, K.W. On September 2, 1998, the parties stipulated that N.D. and her sisters were neglected children. The two youngest sisters, who were then seven and four years old, were immediately placed under protective supervision with K.D., their mother, on condition that K.W. "will have no contact with any of the respondents while they are in her care," and that "such contact may be grounds for revocation of the order placing the respondents in her care." K.D. agreed to these conditions. N.D., then nine years old, was placed in foster care. About a year later, however, N.D. was removed from foster care and placed under protective supervision with K.D.*fn4

At a status hearing in May 2000, N.D.'s guardian ad litem informed the trial court that K.W. was still living with K.D. At some point during the hearing, the Corporation Counsel made an oral motion requesting that the mother's protective supervision of N.D. be revoked. When the hearing resumed the next day, K.D.'s counsel asked that the government file a written motion and that an evidentiary hearing be held if the court was considering such a revocation. The court responded by saying that counsel for the District "yesterday told me that she wished to revoke protective supervision. No written motion has been filed." Without any further objection to the oral motion or any assertion that more time was needed, K.D.'s counsel agreed to the scheduling of an evidentiary hearing a week later.*fn5

The District's first witness at the evidentiary hearing was Marlene Jackson, a social worker with Family and Child Services. Ms. Jackson testified that during a case conference K.D. said "yes" when her supervisor asked if K.W. was living in her home, and that the other children also stated that K.W. was living in the home. K.D.'s counsel made a hearsay objection, which the court overruled. Ms. Jackson then informed the court that she had not spoken with the children, and that the children's statements had been relayed to her by Lillian Wilkins, a foster mother to one of N.D.'s siblings.

Lillian Wilkins then testified that during the previous week she had spoken with N.D. about whether K.W. was living with her mother. K.D.'s counsel made another hearsay objection, which again was overruled. Ms. Wilkins then went on to state that N.D. told her that K.W. was living in the home.

On the second day of the hearing, K.D.'s counsel renewed her hearsay objections from the previous day. The court responded, "I am able to parse out what can be attributed or what can be used in a motion to revoke."*fn6 The District then called Thomas Fulford, an outreach worker from the Institute for Responsible Fatherhood and Family Revitalization, and E.D., N.D.'s father, to testify. Both Mr. Fulford and E.D. testified that they had encountered K.W. at K.D.'s home during an unannounced visit. Moreover, they both stated that K.W. was in the home while N.D. was there.

On the third day of the hearing, the court conducted an informal interview of N.D. Before the interview began, the following exchange took place between the court and K.D.'s counsel:

THE COURT: And, counsel, I'm inclined not to put [N.D.] under oath but to just sit with her and talk right here in the jury box.

MS. BLUME [K.D.'s counsel]: Well, Your Honor, one thing that I would like to have you discuss with her is if she understands ...


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