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In Re Na.H.;

May 2, 2013


Appeal from the Superior Court of the District of Columbia (NEG-547-10) (Hon. S. Pamela Gray, Trial Judge) (Hon. Zinora Mitchell-Rankin, Reviewing Judge)

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

(Argued January 29, 2013


: Appellant N.H. asks us to review a ruling that her daughter, Na.H., was a neglected child. However, N.H. did not seek review of the magistrate judge‟s order by a Superior Court judge until the time for doing so had passed. We therefore affirm the Superior Court‟s order dismissing the motion for review as untimely, and conclude that the merits of the neglect ruling are not properly before us.

I. Background

On January 4 and February 1, 2011, Magistrate Judge S. Pamela Gray held a hearing to determine whether appellant‟s daughter, Na.H., was neglected due to physical abuse, as defined in D.C. Code § 16-2301 (A)(i) (2001). On February 1, Magistrate Judge Gray found that the government had proved by a preponderance of the evidence that N.H. inflicted physical injury upon Na.H. beyond what was permitted for parental discipline "reasonable in manner and moderate in degree." D.C. Code § 16-2301 (23)(B)(i) (2001). Accordingly, Judge Gray adjudicated Na.H. neglected due to physical abuse.

The court then turned to the question of disposition.At the close of the February 1 hearing, the court issued a disposition order that consisted of handwritten findings on a pre-printed form, and orally explained the findings of fact and conclusions of law that were the basis for its order. The order, which was entered on the docket that same day, committed Na.H. to the custody of the Child and Family Services Agency (CFSA) for a period not to exceed two years. Magistrate Judge Gray issued additional written findings of fact and conclusions of law on April 28, 2011.

N.H. filed a motion for review in the Superior Court on May 12, 2011, more than three months after the disposition order was entered, but within ten business days after Magistrate Judge Gray issued her written findings of fact and conclusions of law.*fn1 Superior Court Judge Zinora Mitchell-Rankin dismissed appellant‟s motion as untimely because it had not been filed within ten days of the magistrate judge‟s February 1 disposition order.Nevertheless, "for purposes of a complete review," Judge Mitchell-Rankin issued an alternative ruling on the merits, affirming the finding of neglect.Appellant then filed a timely notice of appeal to this court.

II. Analysis

A. The time for seeking Superior Court review ran from the entry of the February 1 disposition hearing order.

While magistrate judges may enter "final orders or judgments" of the Superior Court, D.C. Code § 11-1732A (d)(2) (2001), "[s]uch orders or judgments are not final for purpose of review in this court," Bratcher v. United States, 604 A.2d 858, 859 (D.C. 1992). Instead, "[a]n appeal to the District of Columbia Court of Appeals may be made only after a judge of the Superior Court has reviewed the order or judgment." D.C. Code § 11-1732 (k) (2011); see also Arlt v. United States, 562 A.2d 633, 635 (D.C. 1989) (reiterating that "an order or judgment of a hearing commissioner [now called a magistrate judge] is not directly appealable to this court").

In cases of this kind, Family Court General Rule D (e) requires that a motion for review of a magistrate judge‟s order be filed within ten days, although it permits a twenty-day extension of that period upon a showing of excusable neglect.*fn2 The relevant date for determining the timeliness of appellant‟s motion for review by the Superior Court is February 1, when the disposition hearing order was entered on the docket. In re Ak.V., 747 A.2d 570, 573 (D.C. 2000) (entry of written disposition order, not oral finding of neglect, started time for noting appeal); In re A.B., 486 A.2d 1167, 1168 (D.C. 1984) (time for appeal began to run upon filing of dispositional order in child neglect case).

In both In re Ak.V. and In re A.B., a Superior Court judge, not a magistrate judge, conducted the neglect proceedings. Nevertheless, both cases squarely addressed the question of when the order was final for purposes of seeking review, and we clearly held that the disposition order was the final order. Those holdings govern in this context, where we must determine when the time for seeking Superior Court review started to run. The facts of those cases are also instructive.

In A.B.,the trial court found that A.B. was a neglected child on March 15, 1982, and filed its dispositional order on April 2, 1982. Questioning the timeliness of the appeal, the District of Columbia (the appellee) "assert[ed] that it is unclear whether, in a neglect case, the appeal time begins to run upon the oral finding of neglect made after the neglect hearing or from the disposition order." 486 A.2d at 1168. Addressing two prior decisions cited by the appellee,*fn3 we explained that "[b]oth make it clear that the appeal time begins running when the final order issues." Id. In neglect cases, the disposition is the final order. Any lack of clarity in our precedents arose from the fact that sometimes the final order is issued at the close of the neglect trial. In other ...

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