Appeal from the Superior Court of the District of Columbia (DR 612-01) (DR 3552-95) (Hon. Robert E. Morin, Trial Judge).
Before FARRELL and REID, Associate Judges, and WAGNER, Senior Judge.*fn1
Appellant, K.H. (Mr. H.), appeals from an order of the trial court in a domestic relations proceeding denying his complaint for custody of G.H., the child of his former wife, R.H. (Mrs. H.). Preliminarily, we conclude that the trial court exceeded its authority in disposing of this custody dispute between a non-parent and a parent in the context of a domestic relations proceeding. We reverse and remand the case for further proceedings, consistent with this opinion, under the applicable neglect statutes and, if appropriate, the Foster Children's Guardianship Act, D.C. Code §§ 16-2381 et seq. (2007 Supp.) (Permanent Guardianship Act) (providing for creation of permanent guardianships).
I. Procedural and Factual Background
Mr. H. and Mrs. H. were divorced on April 23, 1996. Under the terms of their divorce decree, Mrs. H. was granted custody of their minor children, K.H., Jr. and S.H., and Mr. H. was granted reasonable visitation rights.*fn2 G.H., the child involved in the present proceeding, is R.H.'s child who was born while Mr. H. and Mrs. H. were married to each other, but physically separated for an extended period of time. It is undisputed that Mr. H. is not G.H.'s biological father.*fn3 Although Mr. H. treated G.H. as his own child, he did not seek to adopt him while the parties were married.
A neglect proceeding was instituted against Mrs. H. and the man with whom she resided, H.C., when it was reported that H.C. had kicked S.H. and pulled out some of her hair while dragging her by her braids in an effort to get her to attend tutoring.*fn4 After a hearing, the court found that all three children had been abused by H.C. and that Mrs. H. had done little to protect them and agreed with the corporal punishment that H.C. administered. As a result, the court found that S.H. was neglected under D.C. Code § 16-2301 (9)(A) (a child abused by a parent or other custodian) and (9)(C) (a child whose parent is unable to discharge his or her responsibilities because of mental incapacity) and that K.H., Jr. and G.H. were neglected under D.C. Code § 16-2301 (9)(C) and (9)(E) (a child "who is in imminent danger of being abused and whose sibling has been abused").*fn5 The court entered a disposition order placing all three children in the custody of Mr. H.*fn6
Although Mrs. H. did not appeal, H.C. noted an appeal which was decided by this court in In re G.H., 797 A.2d 679 (D.C. 2002).*fn7 In G.H., this court held that the evidence was sufficient to support the trial court's factual findings that H.C. had abused S.H. by subjecting her to excessive physical discipline, but insufficient to support a finding that his conduct placed G.H. and K.H. in imminent danger of abuse. Id. at 686. However, the court left undisturbed the disposition order placing the children with Mr. H., concluding that Mrs. H. had waived her legal right to have the order altered by failing to note an appeal. Id.
Subsequently, Mr. H. filed in the domestic relations proceeding a complaint for custody of G.H, which the trial court denied.*fn8 Although concluding that there was some uncertainty about the standing of a non-parent to seek custody of a child in the context presented, the court assumed Mr. H.'s standing to bring the action as the actual custodian pursuant to a placement by order of the neglect court. The court stated that it viewed Mr. H. like any non-parent seeking custody of a minor child from a biological parent. In denying the custody complaint, the trial court acknowledged the finality of the neglect findings with respect to Mrs. H., since she did not appeal, but accorded them little, if any, weight in light of the Court of Appeals' "affirmative statement" that there was insufficient evidence to support a finding of neglect of G.H. by his mother. The court found that Mrs. H. was a fit parent and that maintaining G.H.'s continued separation from her was not in his best interest. Having considered the child's need for continuity of care, the physical, mental and emotional health of all persons involved, the quality and interaction and interrelationship of the child to his mother and Mr. H., and other factors impacting on Mrs. H.'s fitness and the child's best interests, the trial court concluded that Mr. H. had not satisfied his burden of overcoming the preference/presumption that the child be in the custody of his natural parent.
Mr. H. argues that the trial court abused its discretion by failing to give preclusive effect to the neglect finding in the prior proceeding and by requiring him to introduce independent evidence that Mrs. H. was an unfit mother. He contends that the doctrine of collateral estoppel precluded the trial court from revisiting the neglect finding, thereby resulting in the loss of the presumption favoring the award of custody to Mrs. H. as the child's natural parent. He argues that these circumstances required him to meet his burden of proof by a preponderance of the evidence, rather than by the "clear and convincing" evidence standard applied by the court. Mrs. H. challenges the applicability of the use of collateral estoppel on this record and supports the trial court's factual findings and conclusions of law. However, she argues that District of Columbia law does not provide a private right of action for a non-parent to seek custody of a child from a parent. We consider first Mrs. H.'s challenge to Mr. H.'s right to bring the domestic relations action for custody.
A. Jurisdiction/Standing Issues
Mrs. H. argues that District of Columbia law does not provide a private right of action for a non-parent to sue a parent for custody of the latter's child outside the context of an adoption or neglect proceeding. She contends that private actions cannot be used to circumvent the existing statutory scheme governing adoption and neglect proceedings. In response, Mr. H. argues that the court's authority to award custody of a child stems from equity, rather than any particular statute. He contends that there is no law limiting the court's equitable authority to entertain such actions and that this court has recognized the ability of third-party caregivers to obtain custody of children in their care.
The arguments that Mr. H. makes were resolved against him in W.D. v. C.S.M., 906 A.2d 317 (D.C. 2006). In W.D.,this court considered "whether the trial court had 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 law." Id. at 321. After considering the statutory scheme, this court concluded that 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 . . . do not support [the] 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. . . . The question is ...