A.C. v. N.W.

160 A.3d 509

A.C., Appellant/Cross–Appellee,

v.N.W., Appellee/Cross–Appellant.

Nos. 16–FM–257

16–FM–310

District of Columbia Court of Appeals.

Argued April 6, 2017

Decided June 1, 2017

Leah Quaile, Neighborhood Legal Services Program, with whom Keeshea Turner Roberts, Neighborhood Legal Services Program, was on the brief, for appellant/cross-appellee.

Alan B. Soschin for appellee/cross-appellant.

Before Beckwith and Easterly, Associate Judges, and Steadman, Senior Judge.

Beckwith, Associate Judge:

Appellant A.C., the mother of minor child A.C.W., sought and obtained a temporary order suspending custody and barring all visitation by appellee N.W., the child's father, pending a police investigation into an allegation that N.W. had sexually abused the child. When the investigation ended without prosecution, N.W. filed a motion to vacate the temporary custody order, and after a four-day evidentiary hearing, the trial court granted it, with the important proviso that all visits between N.W. and A.C.W. would be supervised. A.C. now appeals the trial court's vacatur of the temporary custody order, claiming that the trial court erred in placing the burden of proof on her rather than on N.W., arbitrarily disregarded expert testimony presented at the hearing, and failed to make sufficient findings. Although we reject the first two claims, we agree that the trial court's findings of fact were insufficient. Because, however, the evidence presented would have justified the trial court's ultimate conclusion that the temporary order should be vacated, we do not reverse but instead remand the record so that the court can clarify the factual basis for its determination.

I.

Appellant A.C. and appellee N.W. are the mother and father, respectively, of A.C.W., a girl born in February 2010, shortly after A.C. and N.W. divorced. A.C. and N.W. resolved, through a consent order entered in January 2012, that they would share legal and physical custody. Pursuant to the consent order, A.C.W. resided with A.C., and N.W. had visitation every other weekend and at certain other specified times.

A. Temporary Custody Order

In March 2015, A.C. filed a pro se emergency motion stating that N.W. was "under investigation for child abuse" and requesting that N.W.'s "[v]isitation [with A.C.W.] be suspended until the investigation of child abuse is concluded." In an ex parte hearing before Associate Judge Robert Rigsby, A.C. testified that A.C.W. was "suffering sexual abuse by" N.W. and that A.C.W. had "show[n] and verbalized ... what was happening." A.C. testified that there was a "detective in Virginia" investigating N.W. and that the detective had recommended filing an emergency motion to suspend visitation "for [A.C.W.'s] safety until [the police] conclude" the investigation. Judge Rigsby granted A.C.'s motion, reasoning that in light of A.C.'s "allegations of sexual abuse under sworn testimony," it was "in the best interest for temporary sole legal and physical custody to be awarded to mom with no visitation to dad." Judge Rigsby stressed that the order was "temporary" and scheduled a status hearing for the following month.

B. Motion To Vacate

N.W. filed a motion to vacate the temporary custody order in June 2015, after the police investigation closed without prosecution. Judge Rigsby presided over a four-day hearing, in which both parties offered testimony and other evidence.¹

N.W. called a single witness in support of his motion to vacate, Detective Michael Hengemuhle of the Fairfax County Police Department (FCPD). Detective Hengemuhle had supervised the FCPD's investigation into N.W.'s alleged sexual abuse of A.C.W. He testified that after conducting "a medical examination of the minor child and DNA testing, as well as interviews with [A.C.], [A.C.'s] family, [N.W.], and [N.W.'s] family," the FCPD had informed N.W. "that no criminal charges would be filed."

In her case in opposition to N.W.'s motion, A.C. called Jessica Lopez, A.C.W.'s therapist at Safe Shores, the District's Children's Advocacy Center,² to testify as an expert in "clinical mental health."³ A.C. represented that she was not proffering Ms. Lopez as an expert in "child sexual abuse." Ms. Lopez testified about the "typical trauma responses" that she believed A.C.W. had exhibited and explained the "trauma-focused cognitive behavioral therapy" that she had been using to treat A.C.W. She also testified about statements that A.C.W. had allegedly made, including A.C.W.'s early statements that N.W. "kisse[d] [her] on the lips and [that she] d[id]n't like that" and that N.W. is a "dragon with fire" who had "hurt" her, and her later statement (after several months of weekly therapy) that N.W. had "put his snake in [her] pilu-pilu and [that she had] felt dirty."⁴ Ms. Lopez opposed any resumption in visitation between N.W. and A.C.W. because she thought it would be "very detrimental to [A.C.W.'s] therapy and her progress."

A.C. also testified.⁵ She testified that A.C.W. had first indicated that she had been sexually abused on March 2, 2015, a day after A.C.W.'s final visit with N.W. A.C. stated that A.C.W. indicated that N.W. had "kissed her on her private part."⁶ A.C. took A.C.W. to her pediatrician a week later, but it was not until a couple of weeks after that that A.C.W. had a full sexual-abuse examination.⁷ A.C. testified that although she had given A.C.W. baths on the nights after A.C.W.'s final visits with N.W., she had not noticed any bruising, bleeding, or other injuries. A.C. testified that she believed that the therapy with Ms. Lopez had helped A.C.W. but that A.C.W. was "still racked with fear" and was exhibiting "advanced sexual behavior."

N.W. testified in rebuttal. He denied that he had ever abused A.C.W. N.W. testified that he had had only four overnight visits with A.C.W. in her entire life and that because he lived in New York City and did not have a local residence, he would typically spend his weekend visits with A.C.W. at his sisters' home in Virginia or at museums. N.W. also testified that shortly after A.C.W. was born, A.C. told him that she wanted sole custody and that if he "sought joint custody[,] ... she was going to accuse [him] of abuse." N.W. asserted that A.C. had in the past made false allegations that he had abused her and A.C.W. and that they had been determined by the relevant authorities to be unfounded.

C. Judge Rigsby's Order Granting the Motion To Vacate

Several months after the end of the hearing, Judge Rigsby issued an order granting N.W.'s motion to vacate—the order at issue in this appeal. He summarized much of the hearing evidence but did not make any findings as to whether the abuse occurred or whether A.C.W. would be harmed by resumption in visitation. The judge then set forth the relevant legal principles, including, significantly, that in the absence of a finding by a preponderance of the evidence that a parent has committed an intrafamily offense, there is a presumption that joint custody is in the best interest of the child, and that a parent seeking a modification of a custody award is required to prove a substantial and material change in circumstances. See D.C. Code § 16–914 (a)(2), (f)(1) (2012 Repl.).⁸ In light of these principles, Judge Rigsby "f[ound] that [A.C.] ha[d] not met her burden." He therefore vacated the temporary custody order but required that future visitation between N.W. and A.C.W. should be supervised.⁹ Associate Judge Robert Okun, who took over the case when Judge Rigsby rotated out of the Domestic Relations Branch, stayed Judge Rigsby's order vacating the temporary custody order, pending this appeal.

II.

We review the trial court's order vacating the temporary custody order under the same "manifest abuse of discretion" standard under which we review a custody decision.

Khawam v. Wolfe , 84 A.3d 558, 570 (D.C. 2014). To determine whether the trial court abused its discretion, we assess "whether the trial court considered all relevant factors and no improper factor and ... evaluate whether the decision is supported by substantial reasoning drawn from a firm factual foundation in the record." Estopina v. O'Brian , 68 A.3d 790, 793 (D.C. 2013) (quoting In re A.M. , 589 A.2d 1252, 1257–58 (D.C. 1991) ) (alterations and internal quotation marks omitted). We review the trial court's legal determinations de novo and its findings of facts for clear error. Jordan v. Jordan , 14 A.3d 1136, 1146 (D.C. 2011).

A.C. asserts three claims of error. First, A.C. claims that the trial court misallocated the burden of proof and failed to apply the rebuttable presumption that it is against the best interest of the child for a perpetrator of an intrafamily offense to have custody. Second, A.C. claims that the trial court arbitrarily disregarded Ms. Lopez's expert testimony. Third, A.C. claims that the trial court made insufficient findings of fact to support its order vacating the temporary custody order.¹⁰ We address these claims in turn.

A. Burden of Proof

A.C. contends that the trial court erroneously failed to recognize that "[a]s the party seeking to change the existing temporary custody order, it was [N.W.'s] burden to prove by a preponderance of the evidence that there had been a substantial and material change in circumstances and that a change was in the best interests of the child." She further contends that N.W. "incurred an additional burden of proof when [A.C.] presented evidence that [N.W.] had committed an intrafamily offense" and that the trial court erroneously failed to require N.W. to meet this burden. Both contentions are without merit.

D.C. Code § 16–914 (f) provides that a party seeking to modify an "award of custody" must prove by a preponderance of the evidence that "there has been a substantial and material change in circumstances and that the modification ... is in the best interest of the child." A.C.'s assertion that this provision placed the burden of proof on N.W. is incorrect because the temporary custody order was not an ...