Appeals from the Superior Court of the District of Columbia (NEG273-09) (Hon. Laura A. Cordero, Trial Judge)
The opinion of the court was delivered by: Belson, Senior Judge:
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and BELSON, Senior Judge.
The subject of these consolidated appeals is K.J., a female adolescent child. K.J.'s incarcerated mother, R.J., and maternal grandmother, B.J., appeal from the order entered following a bench trial in which each was found to have neglected K.J. Both R.J. (the "mother") and B.J. (the "grandmother") argue that there was insufficient evidence to find that they neglected K.J. in violation of D.C. Code § 16-2301 (9)(A)(ii-iv) (2010 Supp.). We agree that there was insufficient evidence to find that the grandmother neglected K.J. and reverse that finding. The mother, in addition to arguing insufficiency, also argues that the trial court committed constitutional error in refusing to allow several of K.J.'s statements to be admitted as non-hearsay admissions by a party opponent. We disagree with both of those arguments, affirm the trial court's decision regarding the mother, and hold that there was sufficient evidence to find that her actions met the standard for neglect set forth in D.C. Code § 16-2301 (9)(A)(iv).
K.J.'s mother was incarcerated on October 1, 2007. At that time K.J., who was born on October 27, 1995, was approaching her twelfth birthday. The mother granted a power of attorney to K.J.'s aunt, L.J., to take care of the child. After a few months, K.J. left her aunt's care and for the next year bounced between her maternal grandmother, her maternal grandfather, M.A., and one of her mother's friends, T.M., until finding relative stability for nearly seven months living in her grandmother's home. While K.J. was living under her grandmother's roof, her mother granted a power of attorney to Ki.J., the grandmother's twenty-three-year-old niece (the "niece") who was also living in the grandmother's home. The grandmother and her niece both cared for K.J. by providing her with food and clothing, taking responsibility for her at her school, and by setting rules for her.
On June 20, 2009, K.J. voluntarily left her grandmother's home because of certain discipline her grandmother was imposing. The preceding day, K.J. had been standing outside her grandmother's home wearing only pajama pants and a small t-shirt while talking to a group of teenage boys who were there to see if another teenager living in the grandmother's house was at home. K.J.'s grandmother told her to come inside, but K.J. refused. Her grandmother punished K.J. by "grounding" her inside for the weekend. K.J. responded by saying that she did not have to listen to her grandmother because she was not her mother. Her grandmother subsequently increased K.J.'s punishment to a full week. The next day, K.J. packed her bags and told her grandmother that she was leaving to stay at her godmother's house. The grandmother told her, "[y]ou go out that door, don't come back in my door." The niece also spoke with K.J. before she left, told her not to go and warned her that she would report K.J. as a runaway child if she left. K.J. left with her bags. The niece then reported K.J. to the police as a runaway, and gave them the address of the godmother.
On that same day, after K.J. arrived at her godmother's house, K.J.'s godmother called the police and asked them to take K.J. into custody. Metropolitan Police Department (MPD) Officers Jeremy Verdon and Kelan Edwards answered the godmother's call, and upon arrival ran a computer program and discovered that K.J. was listed as a missing person. The officers contacted the niece, who stated that she and K.J.'s grandmother shared custody of K.J. The niece then told the officer something to the effect that "we don't want her back here." Officers Verdon and Edwards then transported K.J. to the Child and Family Services Agency (CFSA).
Child Protective Services investigator Kerstin Magnuson received a call later the same day regarding the circumstances and began an investigation. During a thirty-day investigation period, many attempts were made at contacting family members of K.J. to find a suitable caregiver. Ms. Magnuson did succeed in contacting the niece, but determined that K.J. could not be released into her custody as an adequate caregiver because the niece did not have her own housing. Ms. Magnuson attempted to speak by telephone with the grandmother, left her voice mail messages, knocked on her door, and asked the niece to contact the grandmother on her behalf, but the grandmother never responded to Ms. Magnuson. Ms. Magnuson concluded that because there were no other placement options and the grandmother could not be contacted, K.J. should be placed in CFSA custody, and she was placed in a foster home.
CFSA social worker Karen Price had been assigned to K.J.'s case ten weeks before the time of trial. Upon receiving the assignment, Ms. Price gave K.J. a clothing voucher after realizing that all of K.J.'s clothes were too small to be worn in public. After visiting K.J. at her foster home and school, Ms. Price found that K.J. was happy, well-adjusted and wanted to be adopted. Ms. Price had not received any calls from the niece or the grandmother, and she did not meet with any maternal relatives before trial. K.J. stated that she would like to be adopted by her foster mother, and that was also Ms. Price's recommendation.*fn1
The trial court found that the grandmother neglected K.J. by choosing not to let K.J. return to her home, and by failing to respond to inquiries during the CFSA investigation (Supp. App. at 17), and that this met the requirements for a finding of neglect set forth in D.C. Code § 16-2301 (9)(A)(ii). It is there provided that a child is neglected if the child is "without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his or her physical, mental, or emotional health." D.C. Code § 16-2301 (9)(A)(ii). The record supports the trial court's finding that the grandmother was acting in loco parentis, although she was not the legal guardian of K.J. This court has noted that under D.C. Code § 16-2301 (9)(A)(ii), if individuals are acting in loco parentis they can be found to have neglected a child if that child is "without" the requisite care. In re B.C., 582 A.2d 1196, 1198 (D.C. 1990). It does not follow, however, that ending an in loco parentis relationship is, by itself, grounds for a finding of neglect. Fuller v. Fuller, 247 A.2d 767, 770 (D.C. 1968). In Fuller, we discussed the in loco parentis relationship as follows:
The status assumed by one in loco parentis is a "somewhat nebulous legal relationship of a temporary character dependent on the intention of the party assuming the obligations of a parent." The continuance of that relationship is a matter which lies within the will of one standing in loco parentis and may be abrogated by him at any time. It ...