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In re C.W. Dist. of Columbia

February 1, 2007

IN RE C.W. DISTRICT OF COLUMBIA, APPELLANT.


Appeal from the Superior Court of the District of Columbia (NEG 1153-00) (Hon. Nan R. Shuker, Trial Judge).

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

Argued November 9, 2006

Before: FARRELL and REID, Associate Judges, and SCHWELB, Senior Judge.

On July 14, 2005, following a child neglect review hearing at which no testimony was taken and no opportunity for cross-examination (or for pre-hearing discovery) was provided, a judge of the Family Court ordered the District of Columbia, through its Child Family Services Agency (CFSA), to pay C.W., a ward of CFSA who was then one day short of her twenty-first birthday, the sum of $9820.56. The award was based on an allegation that certain foster care funds paid by CFSA to C.W.'s foster parents, G.D. and W.D., were not distributed to C.W. or used for her benefit, and that by failing to take adequate measures to prevent Mr. and Mrs. D. from diverting to their own use money intended for C.W., the District had failed to fullfill its legal responsibilities to C.W. The District has appealed from the trial judge's order on several grounds, but we reach only its contention that the claim made on C.W.'s behalf could properly be resolved only in a civil action in which all of the procedures and protections available at such a proceeding would be observed, and that such a claim is not an appropriate subject of a non-evidentiary child neglect review hearing.

We agree with the District. The only possible theory under which the District could be held liable to C.W. for the amount awarded is that the District was negligent in failing to prevent the foster parents from enriching themselves at C.W.'s expense. We conclude that the Family Court, holding a neglect review designed to assure for a child an environment free from abuse or neglect, is not the proper forum to determine whether the District should be held liable for its alleged negligence and, if so, in what amount. Accordingly, we reverse the trial court's decision and vacate the award, without prejudice to any timely civil proceeding which C.W. may seek to initiate.

I. BACKGROUND

A. C.W.'s History

C.W. was born on July 15, 1984. For the first sixteen years of her life, she lived with a succession of relatives. On June 21, 2001, shortly before her seventeenth birthday, C.W. was adjudicated by the Superior Court to be a neglected child pursuant to what is now D.C. Code § 16-2301 (9)(A)(7) (2006). C.W. was committed to the custody of CFSA, and she was placed with W.D., who at that time was not yet a licensed foster parent. By January 2003, Mr. and Mrs. D. had both received their foster care licenses, and C.W., then 18 1/2 years of age, became their foster child.

When C.W. was sixteen years old, she apparently engaged in disruptive behavior which led her custodian to state that she could no longer keep C.W. in her home. Under the care of Mr. and Mrs. D., however, C.W. thrived. She graduated from high school, and in the fall of 2003, she enrolled at the University of Maryland Eastern Shore (UMES), with the intention of becoming a pediatric nurse. C.W. apparently did well during her first year at UMES. She lived on campus, but she continued to reside with Mr. and Mrs. D. during vacations and breaks from school, and she came home on some weekends. Meanwhile, Mr. and Mrs. D. continued to receive foster care payments from CFSA.

The trial judge held regular neglect review hearings with respect to C.W.'s case, although C.W. was excused from attending most of them. At a hearing on September 30, 2004, a CFSA social worker reported that C.W. was an outgoing, well-behaved and motivated young woman. The trial judge, who plainly regarded C.W. as a "success story," was concerned about C.W.'s future after she "aged out" of the neglect system on her twenty-first birthday. The judge inquired regarding what, if any, financial assistance C.W. would be in a position to receive in order to be able to complete her education after her neglect commitment to CFSA ended. In December 2004, responding to the judge's concerns, CFSA filed an "Independent Living Transition Plan" for C.W. In that plan, CFSA listed several prospective sources of financial assistance for C.W., including certain federal grants, the District of Columbia Tuition Assistance Grant Program, and the "Center of Keys for Life Program." The judge was evidently satisfied that the agency had made reasonable efforts to assist C.W. in achieving her goals for independent living, and she anticipated, as did the attorneys and social workers in the case, that C.W. would continue to live with Mr. and Mrs. D. after her twenty-first birthday. Prior to July 2005, no friction between C.W. and her foster parents was reported to the court by anyone.

B. The Final Review Hearing

The final review hearing in C.W.'s child neglect case was scheduled for July 7, 2005, eight days before her twenty-first birthday. On the day preceding the hearing, the CFSA social worker, supplementing a previous report, informed the court that C.W. had abruptly left the home of Mr. and Mrs. D. as a result of conflict with the foster parents over money.

C.W. had related to the social worker that she had received very little financial assistance from Mr. and Mrs. D. while she was living on campus at UMES, and that when she asked them for help, they told her that they were saving for a new home. The social worker reported, and C.W. subsequently confirmed at the July 7 hearing, that C.W. would occasionally have to borrow money from members of her family in order to "get by." C.W. acknowledged to the social worker, however, that when she needed to repay a relative for a loan, Mr. and Mrs. D. would provide her with the money.

Shortly before the July 7, 2005 hearing, and after her dispute with her foster parents came to a head, C.W. moved in with her grandfather at the grandfather's three-bedroom home. C.W. explained to the social worker that she had not told anyone about her financial difficulties because she felt indebted to Mr. and Mrs. D. for taking her into their home. As a result, C.W.'s court-appointed guardian ad litem (GAL) was unaware of the problem prior to its disclosure on the eve of the final neglect review hearing.

At the outset of that hearing, the trial judge, plainly motivated by her responsibilities to C.W. as parens patriae, expressed concern about the reported estrangement between C.W. and the foster parents and its potential consequences for C.W.'s future. The judge asked rhetorically: "How did we get to this place eight days before [C.W.] turns twenty-one?" She requested C.W. to relate what had happened, and C.W. responded as follows:

Well, when I went to college, I never really asked them for anything. I just was happy, like that they would let me stay with them. So, I ain't never pressed them for no money. But like recently, like the first year I went to college, I didn't get anything until April, and I had been in college since September. And they brought that down. And then, July I got $400 to go to Missouri -- Kansas. And then, like every time I'd call home they would be, like: Can you work with us? We're trying to get this house. We'll send you something when we get it. And then, I'll tell them that I borrowed some money from somebody and, then, they'll send it to me because I tell them I got to pay them back. But when I came home, I was asking for money to get to work because I ain't had no money when I came home. They'll give me just enough to get to work and back. And then, they'd be like -- they never ask, do I need something for lunch or anything? Every time they gave me money, that's my last. Dang, that's my last. I don't have it like that.*fn1

The judge's reaction to C.W.'s narrative, and to the situation that the narrative revealed, was that CFSA should have monitored the foster parents' use of the money paid to them by the District, and that if money was diverted from C.W. by the foster parents, then the District had the obligation to compensate C.W. The judge's approach is captured in the following exchange with the GAL:

THE COURT: In other words, it's my feeling that if X amount of money is to go to a kid and she doesn't receive it from the Agency, the Agency who hired the D.s, the Agency owes her the money. They can collect from the D.s and that's their business. But if the D.s were required by the rules to give her X amount of ...


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