In re D.S., Nos. 10–FS–1556

52 A.3d 887

In re D.S., K.M., B.S., R.S., T.S. & P.S. J.M., Appellant.

Nos. 10–FS–1556, 10–FS–1557, 10–FS–1558, 10–FS–1559, 10–FS–1560, 10–FS–1561.

District of Columbia Court of Appeals.

Argued March 8, 2012.

Decided Sept. 20, 2012.

Leslie J. Susskind, appointed by the court, for appellant.

Mindy Leon, appointed by the court, Guardian ad Litem for appellees D.S., K.M., B.S., R.S., T.S. & P.S., filed a statement in lieu of brief.

Beverli B.V. Wynn–Euell, appointed by the court, for appellee V.S., filed a statement in lieu of brief.

Dana K. Rubin, with whom Irvin Nathan, Attorney General for the district of Columbia, and Todd S. Kim, Solicitor General, were on the brief, for appellee.

Before BLACKBURNE–RIGSBY and BECKWITH, Associate Judges, and FERREN, Senior Judge.

BECKWITH, Associate Judge:

This case involves the ardent yet unsuccessful effort of an unwed biological father of six children to keep these children after their mother's abuse of them led first to their removal from her home, then to her stipulation that they were neglected, and ultimately to their commitment to the District of Columbia Child and Family Services Agency (CFSA) over the father's objections and without any finding that he was an unfit parent. We conclude that the trial court's determination that it was in these children's best interest to be committed to CFSA for up to two years failed sufficiently to take into account a fit parent's right to presumptive custody-a right that applies in temporary custody determinations in neglect proceedings as well as in cases involving the termination of parental rights. In re J.F., 615 A.2d 594, 598 (D.C.1992). This parental presumption stems from well-established principles from our cases, our laws, and the United States Constitution: the principle that a “child's best interest is presumptively served by being with a parent, provided that the parent is not abusive or otherwise unfit,” In re S.G., 581 A.2d 771, 786 (D.C.1990) (Rogers, C.J., and Ferren, J., concurring); the presumption in the neglect statute that “it is generally preferable to leave a child in his or her own home,” D.C.Code § 16–2320(a) (2001); ¹ and the constitutional principle, rooted in the Due Process Clause, that the right to presumptive custody of a fit, unwed, noncustodial father who has grasped the opportunity to be involved in his child's life can be overridden only by a showing by clear and convincing evidence that it is in the best interest of the child to be placed with someone else. Stanley v. Illinois, 405 U.S. 645, 656–58, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re J.F., 615 A.2d at 598. We reverse the trial court's order committing the children to CFSA and remand to the trial court for reconsideration of the appropriate disposition under the correct legal standards.

I. Factual and Procedural History

On June 1, 2010, CFSA received a hotline tip reporting that four-year-old P.S. had sustained an eye injury and had told staff at her school that her mother, V.S., had hit her in the face with a boot when P.S. would not stop crying. That day, a CFSA social worker conducted interviews with P.S. and her five siblings—eleven-year-old K.M.; nine-year-old B.S.; R.S., who was two weeks shy of his eighth birthday; and six-year-old twins D.S. and T.S. The agency determined that immediate removal from the mother's home was necessary and placed the children in three different foster homes after P.S. told the social worker that “mommy hit [her] with a boot,” K.S. reported that her mother “still hits [her]” and had previously punched her in the eye, several of the children stated that their mother hit them with a belt, and a medical examination revealed that P.S. had unexplained marks on her legs and scars on her buttocks that she said were caused by her mother hitting her with a broom. CFSA notified the mother that the children had been removed from her home and that a family team meeting would be held in two days, but the agency failed to locate the children's father, J.M. The mother and several of the children told the social worker that the father was in the hospital, but they did not know which hospital.

From the outset CFSA received information that the children's father did not live with the children at their mother's home but that he had a significant relationship with them. R.S. told the investigator that his father did not live at home, and K.M. added that the siblings stayed with their father every weekend, Friday through Sunday. The children's mother also told the investigator that the father was involved with the children prior to his hospitalization. K.M., R.S., and B.S. each said that they felt safe with their father—R.S. specifically said “my daddy keeps me safe”—while B.S. said he “sometimes” felt safe with his mother and K.M. and R.S. said they did not feel safe with her.

In the two days following the children's removal, CFSA still failed to locate the father to notify him of the June 3, 2010, family team meeting. The father nevertheless found out about the meeting and participated over the telephone in the parties' discussion of the abuse and neglect allegations and the services that were available for the children.

Over the course of the next three months, the children's parents took part in four hearings pertaining to the neglect proceedings: the initial hearing on June 4, 2010, at which the government served the parents with petitions alleging that the children were neglected and the father acknowledged paternity of all six children; the pretrial hearing on July 30, 2010; the August 12, 2012, hearing at which the mother stipulated to the children's neglect and the magistrate judge adjudicated all six children to be neglected; and the disposition hearing on August 27, 2010, at which the court committed the children to the custody of CFSA for at least two years. Throughout these proceedings, which were presided over by Superior Court Magistrate Judge Lori Parker, the father repeatedly requested immediate release of all six of his children into his custody.

At the initial hearing, which the father attended after having been released from the hospital that morning, a dispute immediately arose over the questions whether the father lived with the mother and children and, if he lived somewhere else, whether the eldest child, K.M., lived with him. Notwithstanding the children's unequivocal indications to the contrary during their interviews, the government's petition indicated—and the government maintained at the hearing—that the entire family lived together at the mother's home on Alabama Avenue.² Yet the Guardian ad Litem (GAL) noted that when she had spoken to R.S. and B.S. the night before the hearing, “they definitely spoke of two[ ] different homes.” And with respect to K.M.'s address, although the GAL said that K.M. herself referred to her mother's house as “home,” both parents indicated that she lived with her father and was listed on his lease, and the father's counsel said he was “prepared to prove” that she had been living with her father and asked that K.M. be returned to his care immediately. The magistrate judge did not take any evidence or resolve the dispute over where K.M. lived, but ordered the government to investigate the father's address. The government later amended the neglect petition to reflect the father's correct address.

Also at the initial hearing, the mother waived her right to a probable cause hearing. The father explicitly stated that he was not waiving a probable cause hearing, but did not object to the mother's waiver. The father's attorney argued that the government's efforts to prevent removal of the children were not reasonable because the father “was available to the agency for further investigation” even while hospitalized, “he is here today at the time that the Court is making the decision with respect to removal,” and he “is ready, willing, and able to take care of the children.” The magistrate judge found that, in light of the father's initial unavailability and the nature of P.S.'s injury, the government's efforts to prevent removal—efforts it was required by law to demonstrate—were reasonable.³ Finally, over the father's strong objections, and despite the GAL's statement that “the boys” told her “they love going to dad” and that “several of the children ... express [ed] feeling safe with their father,” the court adopted the government's recommendation that the father be allowed only supervised visitation with his children, stating that CFSA needed time “to determine that unsupervised visits would be in the children's best interest.”

When the parties reconvened on July 30, 2010, for a pretrial hearing, the magistrate judge, who had in the interim already rejected the father's motion for reconsideration of the court's ruling rejecting his request for custody of his children, also rejected the father's renewed request for liberal unsupervised visitation. The court did so in “an abundance of caution” after the government and the GAL expressed concerns about the father's health and the children's extensive tooth decay. The father's counsel objected to the lack of notice and opportunity to respond to new allegations that both parents had neglected the children's dental health,⁴ and complained that the government's requests to restrict the father's parental rights should be based on “more than just the fact that they have concerns” and the government should have to present “facts upon which the Court can rest its ruling.” The government responded that it was important for the judge to have “a total mosaic of what's been going on in this family” and “all information that it deems necessary in order to make a decision as to whether or not these children have been abused or neglected.”

On August 12, 2010, the magistrate judge accepted the mother's stipulation of neglect as to each of the children and adjudicated all six children neglected. The father attended the...