In re Columbia

257 A.3d 451

IN RE B.C.; C.P., Appellant.

No. 19-FS-984

District of Columbia Court of Appeals.

Argued June 16, 2021

Decided August 19, 2021

Allison K. Bauer was on the brief for appellant.

Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, Stacy L. Anderson, Senior Assistant Attorney General, and David Stark, Assistant Attorney General, were on the brief for appellee.

Before Thompson and Easterly, Associate Judges, and Okun, Associate Judge, Superior Court of the District of Columbia.^*

Easterly, Associate Judge:

A determination that a parent is unable to discharge their responsibilities to care for their child due to mental incapacity under D.C. Code § 16-2301(9)(A)(iii) (2012 Repl. & 2021 Supp.) is momentous. It can have an adverse impact on the parent, both legally and reputationally. For this reason, even if a parent opts not to challenge other grounds of neglect under D.C. Code § 16-2301(9)(A), a parent will often still be able to demonstrate that they have standing to seek review of a mental incapacity determination. Further, a mental incapacity neglect determination must be supported by sufficient evidence, which may well necessitate a presentation of expert testimony. This case illustrates these principles.

I. Facts and Procedural History

In 2018, the District's Child and Family Services Agency opened an investigation into then eight-year-old B.C.’s care by his mother, C.P. CFSA subsequently filed neglect charges pursuant to D.C. Code § 16-2301(9)(A)(ii) (defining a neglected child to include one "who 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, and the deprivation is not due to the lack of financial means of his or her parent"), and D.C. Code § 16-2301(9)(A)(iii) (defining a neglected child to include one "whose parent ... is unable to discharge his or her responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental incapacity").

A. The Government's Theories of Neglect and the Evidence at Trial

At the 2019 neglect trial before a magistrate judge, the government argued that B.C. was a neglected child under D.C. Code § 16-2301(9)(A)(ii) because "his basic educational needs [were] not being met." The government presented evidence that B.C. had been enrolled and removed from three different schools in the fall of 2018, that he had attended school at most a handful of days during that timeframe, that C.P. had eventually sought authorization/permission to homeschool him but had not received the waiver she needed as a non-high school graduate, and that B.C.’s current academic performance was far below grade level.

Separately, the government argued that B.C. was a neglected child under D.C. Code § 16-2301(9)(A)(iii) because C.P.’s mental incapacity rendered her unable to discharge her parental responsibilities. The government's theory was that C.P. had previously exhibited paranoid behavior and delusional thinking, she had sought unnecessary medical treatment for herself, and she was now doing the same for B.C. To this last point, the government submitted medical records for B.C., documenting C.P.’s numerous efforts to get B.C. care, often in relation to swelling on the right side of his face. These records showed, however, that medical professionals had observed the swelling, diagnosed an abscessed tooth, and recommended soft tissue excision as treatment.

The government did not present any recent psychiatric records or expert testimony to substantiate its allegation that C.P.’s mental incapacity led her to seek unnecessary treatment for B.C. Instead, the government presented a variety of medical records from (1) Jordan House, a psychiatric facility where C.P. received treatment for three days in 2011 for depression and suicidal ideation before checking herself out against therapeutic advice; (2) Core Health and Wellness Center, a "primary care, alternative medicine and holistic wellness services" facility,² documenting numerous appointments for a range of reported ailments in 2012–16 which indicated that she may have had ongoing mental health issues,³ but only a handful of appointments in 2017 and 2018 for ailments which were verified and treated; and (3) United Medical Center, spanning 2011–19, documenting appointments in 2017–19 for verified and treated ailments and minor injuries (e.g., a recurring sore throat, a urinary tract infection, and a bruised finger ).

The government also presented testimony regarding C.P.’s mental health from three CFSA employees who had interacted with C.P.⁴ Narendra Date, the social worker assigned to B.C.’s case in 2018, testified that he met with C.P. in person five times over the course of that year and that C.P. was generally resistant to his effort to investigate her case and would not let him talk to B.C. alone. Mr. Date stated that "there was an indication that [C.P.] had unaddressed mental health needs." When asked to elaborate on the behavior that led him to believe C.P. had unaddressed mental health needs, he stated that she "mistrust[ed] the people around here" and had "ideations about herself being seriously ill ... [and] about the child being seriously ill without any documentations to back it up."

Edward Rodrigues, the social worker assigned to B.C.’s case in January 2019 after B.C. was removed from C.P.’s care, testified that he had talked on the phone and texted with C.P. weekly but met with her only once to supervise a visit with B.C. He noted that her texts could sometimes "go[ ] onto a tangent" and that she had called the police on him twice.⁵ He expressed concern about her "lack of awareness of her mental health needs" but also stated that "I don't know if it's — we have an understanding of where she is at mentally right now." When asked to explain why he thought she had current mental health needs, he testified that it was "[j]ust the long text messages that are ... kind of incoherent; the ongoing lack of trust with anyone, particularly me," and "[t]he idea that she still sees ... a medical problem, or dental problems despite the advice of the doctor." But he also testified that their relationship had improved over time, that she had become "more open" to working with the agency, and that she was working with a peer mentor. When asked to connect his concerns about C.P.’s mental health to her parenting, he testified that "I can't say because I've only witnessed one visit."

Lastly, Shanay Tymus, a registered nurse employed by CFSA, testified about accompanying Mr. Date on a home visit to C.P.’s house in April 2018. At that visit, she and Mr. Date tried to get more information about B.C.’s health history, but C.P. refused to provide them any documents or sign a release form. Ms. Tymus testified that C.P. was "frustrated, really defensive, kind of like paranoid, but she wasn't confrontational or anything."

C.P. testified on her own behalf. Regarding B.C.’s education, she explained that, with authorization and instructions from OSSE, she had homeschooled him in 2017 (when B.C. would have been in first grade) because "he improves with working one-on-one." She testified that she used "many" curriculums from the D.C. Library, but she was not asked to identify any one of them by name. She testified that, for reading, she used flash cards to teach B.C. sight words; for math, she worked with him on addition and subtraction (she noted that he struggled with double digit numbers); for science, she had him draw pictures of "plants, and things like that." Over the summer of 2018, she enrolled him in Beers Elementary School, but she explained that he never attended because it was 30 minutes away and she wanted to enroll him at a school closer to home. She then enrolled B.C. at Martin Luther King, Jr. Elementary School, but when he got a spot at Ingenuity Prep, she decided to enroll him there because she wanted him to "go to a prep school [instead of a] public school." She took him out of Ingenuity Prep after a few weeks because of bullying concerns, but she explained that she got in contact with OSSE to get permission to homeschool B.C. again. She acknowledged that her "pattern" of enrolling and removing B.C. from various schools did not reflect "the best choices." She testified that she was learning from her mistakes. She vaguely testified that in the fall of 2018 she taught B.C. in "all" subjects, and she documented her instruction, albeit incompletely, in the required portfolio. She acknowledged that B.C. was behind academically and that his Individualized Education Plan from kindergarten had expired, but she testified that she had been trying to update it with Ingenuity Prep.

Regarding her mental health, C.P. admitted that she had received treatment in 2011–12 for postpartum depression but stated that she had no current diagnoses. Regarding B.C.’s medical care, she testified that his facial swelling was documented and diagnosed as the reaction to an impacted molar, and she pushed back against the notion that "[she] was just paranoid." She explained that B.C. was scheduled to have a surgical procedure to address his impacted molar in January, but he was removed from her care before the procedure could be performed.

B. The Neglect Determinations by the Magistrate Judge and the Associate Judge

After the government gave its initial closing argument, the magistrate judge indicated for the first time that she was contemplating whether B.C. was neglected not only based on the government's theories that (1) C.P. had failed to ensure B.C. was getting adequate educational support, and (2) C.P.’s mental incapacity had caused her to seek out unnecessary medical care for B.C., but also based on a theory that the government had not argued, namely, (3) C.P.’s alleged mental incapacity had affected her...