April 15, 2009
Appeal from the Superior Court of the District of Columbia (DRB 3478-02) (Hon. J. Michael Ryan, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Argued September 24, 2008
Before GLICKMAN, KRAMER and FISHER, Associate Judges.
Appellant, the father of the minor child A.R., challenges the decision of the trial court awarding custody of A.R. to his maternal aunt, C.N., arguing that the court did not have jurisdiction to hear a motion for custody brought by a non-parent, that it failed to apply the presumption in favor of parental custody, and that it made no finding that he was unfit to parent his son. We remand for a rehearing on the question of custody in which the provisions of the subsequently enacted Safe and Stable Homes for Children and Youth Amendment Act, see D.C. Code §§ 16-831.01- .13 (2008 Supp.), shall be applied.
In the original proceeding addressing C.N.'s complaint for custody, the trial court based its jurisdiction on D.C. Code § 11-1101 (4) (2001), providing, in pertinent part, that the Family Court "has exclusive jurisdiction of actions seeking custody of minor children." The basis for the court's decision to award custody to the maternal aunt was set out by the trial court in a carefully written twenty-page order dated March 7, 2005, in which the court took into account a number of factors that must be considered in making a child custody decision in the context of a divorce proceeding, which the court appears to have viewed as analogous. See D.C. Code § 16-914 (a)(3) (2001). We have previously held, however, that D.C. Code §§ 11-1101 (4) and 16-914 (a)(3) "contemplate an award of custody only as between parents who are parties to [a] divorce proceeding." T.S. v. M.C.S., 747 A.2d 159, 163 (D.C. 2000). See also W.D. v. C.S.M., 906 A.2d 317, 318 (D.C. 2006) ("[T]he trial court exceeded its authority in awarding permanent custody of [a] child to unrelated third parties in [a] domestic relations case.")*fn1 Accordingly, when the trial court issued its March 7, 2005, order, there was no statutory provision in effect that gave it jurisdiction to hear C.N.'s complaint for custody.
In response to what the Council of the District of Columbia viewed as the "substantial uncertainty" created by W.D. v. C.S.M. about whether "persons other than parents [could] seek custody of a child when in the child's best interest,"*fn2 the Council enacted the Safe and Stable Homes for Children and Youth Amendment Act of 2007, which became effective on September 20, 2007. See D.C. Code §§ 16-831.01-.13 (2008 Supp.). This Act established a "rebuttable presumption . . . that custody with the parent is in the child's best interests." Id. § 16-831.05 (a). Nonetheless, it also gave standing to file a custody action to a third party "with whom a child has established a strong emotional tie" and "who has assumed parental responsibilities." Council Report at 4.*fn3 It chose the "best interest of the child" standard for determining whether custody to a third party should be awarded. See D.C. Code § 16-831.05, -831.08 (2008 Supp.).
The Act did not, however, include language addressing the question of whether this law should be applied retroactively, and we conclude that we need not address that issue either, particularly since we recognize that there is some tension in our case law regarding retroactive application of statutes by an appellate court.*fn4 At oral argument, both sides agreed that given the lapse of time and the absence of a record informing us of whether the requirements of the D.C. Code § 16-831.02 (a)(1)(2008 Supp.) have been met, we cannot know if A.R. should remain in C.N.'s custody. Accordingly, we must remand this matter for a hearing conducted pursuant to the new statute at which the trial court can determine whether the prerequisites of the statute have been satisfied and whether continued custody with C.N. remains in A.R.'s best interest.
II. CSOSA Document
K.R. also contends that the trial court erred by not admitting a document from the Court Services and Offender Supervision Agency into evidence. The document in question is a Client Status Report from a domestic violence prevention training program in which K.R. participated, detailing his participation, motivation, and overall adjustment as a result of the training. K.R. contends that this document should have been admitted under the public record exception to the hearsay rule. To support this argument, K.R. cites Goldsberry v. United States, 598 A.2d 376 (D.C. 1991), which describes the requirements of the public records exception.
For hearsay evidence to be admitted as a public record, "the party proffering the record must prove that the facts stated in the document are within the personal knowledge and observation of the recording official and that the document is prepared pursuant to a duty imposed by law or implied by the nature of the office." Id. at 378 (citations and internal quotation marks omitted). In Goldsberry, the hearsay evidence in question consisted of Superior Court docket entries, and the testimony to establish personal knowledge of the documents' preparation came from a Superior Court employee who served as a calendar coordinator. Id. at 377. The offering witness must be "able to identify the record as authentic and as made in the ordinary course of business." Id. at 379 (citation and internal quotation marks omitted). The personal knowledge of the Superior Court calendar coordinator was sufficient because he "identified the docket entries as official court records and testified that they appeared to have been made in conformity with normal courtroom procedures." Id. In this case, K.R. himself served as the offering witness. He had no personal knowledge and could not testify about whether the document was authentic or made in the ordinary course of business. Thus, the trial court properly excluded the evidence as hearsay.
The case is remanded for the trial court to determine whether jurisdiction is proper under D.C. Code § 16-831.02 (2008 Supp.) and, if so, to make a custody determination consistent with the standards set forth in D.C. Code § 16-831.01-.13 (2008 Supp.).