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Beraki v. Zerabruke

September 16, 2010

TEDROSE BERAKI, APPELLANT,
v.
YODIT ZERABRUKE, APPELLEE.



Appeals from the Superior Court of the District of Columbia (DRB-1185-03) (Hon. Michael Ryan, Trial Judge).

The opinion of the court was delivered by: Thompson, Associate Judge

Argued November 17, 2009

Before RUIZ and THOMPSON, Associate Judges, and FERREN, Senior Judge.

This appeal relates to an ongoing dispute between appellant Tedrose Beraki and his estranged wife, appellee Yodit Zerabruke, relating to custody of their two minor children (both daughters, one born in 1997 and the other born in 1999). After a hearing, the Family Court issued a Memorandum and Order dated August 18, 2006 (the "August 2006 Order") awarding Beraki sole legal custody of the children and directing that the parties "share joint physical custody with visitation to the Mother." More specifically, the court directed the parties to meet with Dr. David Missar, a psychologist, "to develop a plan for the re-introduction of [Zerabruke] into the lives of the children at a therapeutically appropriate pace... to commence expeditiously" and further requiring that, "within the succeeding six months," the parties and the children meet with Dr. Missar "to facilitate the therapeutic visitation." In a subsequent ruling, the court ordered Zerabruke to pay child support, both going forward and retroactive to December 2006. Thereafter, the court denied Beraki's motion for reconsideration of that ruling.

Beraki appealed from both the physical custody/therapeutic visitation order and from the child support order. As to the first, he argues primarily that the court issued its order without finding that contact with Zerabruke was in the children's current best interests. Regarding the child support order, Beraki argues that the court erred in awarding only three months of "retroactive" child support and also based its ruling on an inappropriate factor.

We conclude that, in the wake of the Superior Court's post-August 2006 rulings in this ongoing matter, particularly the court's April 21, 2010 order ("the April 2010 Order"), Beraki's challenge to the August 2006 order is moot. We therefore decline to address, and we dismiss, the portion of Beraki's appeal that relates to physical custody and therapeutic visitation. As to child support, we affirm the judgment of the Family Court.

I.

Beraki testified at the custody hearing that the children told him in December 2003 that they had been physically and sexually abused by Zerabruke and her co-worker (whom Beraki identifies as Zerabruke's boyfriend).*fn1 The court also heard testimony from the children's therapists (who deemed the children's allegations to be credible) and from Dr. Missar that, irrespective of whether the claimed sexual abuse had actually occurred, the children believed that it had occurred and did not want to have contact with Zerabruke.

Noting that CFSA and the U.S. Attorney's Office had determined not to prosecute the claims of abuse, and crediting the testimony by Zerabruke and her co-worker that there had been no abuse, the court concluded in its August 2006 Order that the allegations of sexual abuse were "unsupported by the evidence." However, because of the testimony that the children strongly believed that their mother had abused them, and because the court found that Beraki was contributing to the children's feelings of hostility toward their mother and "negatively influenc[ing]" the children with regard to her, the court found that "a precipitous return" of the children to Zerabruke's physical custody would be "contrary to their best interests." The court found that it would be detrimental to the children even to have visitation with Zerabruke "outside of a controlled, therapeutic setting," but also found that the children would suffer "[i]n the long run... if they continue[d] to harbor... exclusively negative feelings toward" Zerabruke. The court found it "incumbent... to fashion a custody and visitation order which will allow the children to be reunited to their mother in a therapeutic setting as a precursor to a relationship which will hopefully grow thereafter...."

After Beraki had filed his appeal from the August 2006 Order, the Family Court issued a series of subsequent orders that led appellee Zerabruke to argue that the appeal was moot. In an October 11, 2007 ruling, for example, the court ordered that the schedule for the children's first face-to-face meeting with their mother be suspended in light of "significant evidence [that had] been proffered" that the scheduled meeting "may endanger the... children." And, in a September 2, 2009 order - entered a full three years after entry of the August 2006 order that required expeditious planning for the re-introduction of Zerabruke into the children's lives and a meeting between the parents and children and Dr. Missar "within the succeeding six months" - the Family Court noted that the children still had not seen or been re-introduced to Zerabruke. The court found that it was in the best interests of the children to have a new therapeutic team and ordered that the children "shall begin joint [therapeutic] sessions with Ms. Zerabruke" "[w]hen the Therapeutic Team determines it is appropriate," that "the therapeutic reconciliation protocol outlined [in the September 2009 Order] may be changed or modified as the Therapeutic Team determines is therapeutically necessary"; that the Therapeutic Team "shall move forward with the reconciliation process as... in the best interests of the children"; and that "the best interests of the children shall remain the paramount consideration during each phase of the therapeutic reconciliation process."*fn2 In her Brief of Appellee, Zerabruke urged us to hold that the appeal is moot because, by "suspend[ing] visitation after hearing new evidence from the parties and finding that visits were not yet in the children's best interests" and by having explicitly tied forward movement in the reconciliation process to the best interests of the children, the Family Court through its post-August 2006 orders "ha[d] already done" what Beraki is asking this court to order. Beraki replied that the appeal was not moot because the court was continuing to "work[] to complete its Order of August 2006" and continued to consider its August 2006 Order the "fundamental law of the case."

We need not determine whether the October 2007 order or the September 2009 orders alone rendered the appeal moot because we find that these orders plus an even later order - the April 2010 Order - do moot the custody/therapeutic visitation issues in Beraki's appeal. On December 9, 2009, the court heard testimony from Dr. Ruth Zitner, the head of the therapeutic reconciliation team, about the progress of the reconciliation process. Dr. Zitner testified that the children are "remarkably strong" and able to handle the reconciliation process, but had been dismissive of the reconciliation team's efforts and refused to participate actively in the process. She further reported that the children had had an opportunity to experience Zerabruke "not as the 'monster' as she had been portrayed" and she opined that the therapeutic reconciliation process would not harm the children. But Dr. Zitner also had come to the view that the process would not benefit the children or their relationship with their mother. Specifically crediting Dr. Zitner's testimony and relying on her opinion, the court concluded in its April 2010 Order that "the reconciliation process cannot, at this time, go any further due to the minor children's refusal to participate and [Beraki's] continued [and "vindictive"] undermining of any progress actually made during the reconciliation sessions." The court found that there had been a "substantial and material change in circumstances" since August 2006 and found that it "is currently not in the children's best interest" for Beraki and Zerabruke to share physical custody and not in the children's best interest "to have any of their legal or physical custody vested in their Mother at this time." In addition, although directing an end to the therapeutic visitation process, the court found that "it is in the children's long-term best interest to resume periodic" supervised visitation with Zerabruke. Therefore, the court granted sole physical and legal custody of the children to Beraki, with visitation to Zerabruke for two hours once a month at the court's Supervised Visitation Center, beginning on May 1, 2010. Beraki has filed a separate appeal from the court's April 2010 Order (which is not before us here).

In light of the April 2010 order, we directed the parties to file supplemental briefs on the issue of mootness. Beraki's supplemental brief acknowledges that the April 2010 Order renders moot his appeal of the August 2006 joint physical custody award. He argues, however, that this appeal is not moot because, in the April 2010 custody order, the court generally "incorporate[d] by reference the findings of fact and conclusions of law made in the August 2006 order."*fn3 The short answer to this argument is that, as an appellate court, we review judgments, not findings. See Williams v. United States, 156 F.3d 86, 90 (1st Cir. 1998) ("[I]t is an abecedarian rule that... appellate courts review decisions, judgments, orders, and decrees - not opinions, factual findings, reasoning, or explanations."). To the extent that the August 2006 findings are incorporated by reference as the basis for the April 2010 order, Beraki will have an opportunity to obtain review of those findings via the appeal he has taken from that order.

Beraki additionally argues that the instant appeal is not moot because the "core rationale" for the April 2010 ruling is that the August 2006 "mandate... remain[s] in place," a "mandate" that Beraki describes as "the... conclusion that the children should have regular contact with the person whom they believe sexually abused them." We reject this argument as well, because the focus of the instant appeal has never been the issue of contact vel non with Zerabruke, but Beraki's claim that the court ordered an expeditious therapeutic reconciliation process without a finding that contact with Zerabruke (when it eventually occurred) would be in the children's current best interest.*fn4 This claim, repeated throughout Beraki's briefs, no longer presents a live issue because (1) the court's post-August 2006 orders evince that the court has frequently revisited and reassessed the terms of its order with respect to contact between Zerabruke and the children; and (2) the April 2010 Order rests on the court's acceptance of Dr. Zitner's testimony that the children are strong and able to handle meetings with Zerabruke and that visitation with her will not harm them - which we take as a finding that visitation is consistent with the children's current best interest*fn5 - as well as on the court's finding that visitation is in the children's long-term best interest. Thus, an order from this court awarding the relief that Beraki hoped to obtain - an instruction that the Family Court may not require contact between the children and Zerabruke without a contemporaneous finding that contact is consistent with the children's current best interest - is unnecessary; the Family Court has already made such a finding. See Smith v. ...


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