In re Ta.C.

237 A.3d 114

IN RE TA.C.; T.C., Appellant,

No. 19-FS-380

District of Columbia Court of Appeals.

Submitted March 26, 2020

Decided September 10, 2020

Kwame Willingham was on the brief for appellant T.C.

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

Before Glickman and McLeese, Associate Judges, and Fisher, Senior Judge.^*

Glickman, Associate Judge:

Appellant T.C. asks us to reverse the adjudication of his son, Ta.C., as a neglected child under D.C. Code § 16-2301(9)(A) (2012 Repl. & 2020 Supp.). Appellant contends the trial court had insufficient evidence to support either of its alternative neglect findings, that Ta.C. was without proper parental care or control, and that Ta.C. was regularly exposed to illegal drug-related activity in the home.¹ We agree with T.C. that the proof was insufficient to support a finding of neglect on the latter ground. However, we uphold the finding that Ta.C. was without proper parental care or control. We therefore affirm the adjudication of neglect.

I.

Ta.C. was born on February 8, 2016, to appellant and S.R. For reasons not material to this appeal, appellant took sole custody of Ta.C. in August 2017. The child remained in appellant's custody and care until he was removed from appellant's home under the following circumstances.²

On the morning of November 7, 2018, Metropolitan Police officers responded to a report of gunshots at an apartment located at 39 Galveston Place, S.W. They were met at the apartment by Kenneth Flood, who had been wounded but was able to tell them what happened. A second man, Eugene Johnson, was lying dead from a gunshot wound to his chest. Stepping over Mr. Johnson's body, the police found Ta.C. The child was asleep on the floor and uninjured, though he was covered with spattered blood on his face, hair, and clothing. Ta.C.'s father, appellant, was not present when the police arrived and did not appear in the next few hours before the child was taken into CFSA custody. Appellant was located later that morning.

Two days later, the District filed a petition to have Ta.C. adjudicated a neglected child within the meaning of D.C. Code §§ 16-2301(9)(A)(ii), (iii), and (x), because (1) he was "without proper parental care or control"; (2) his caretaker was "unable to discharge his or her responsibilities to and for the child because of ... physical or mental incapacity"; and (3) he was "regularly exposed to illegal drug-related activity in the home." At the ensuing two-day fact-finding hearing before Magistrate Judge Fentress, the District called appellant himself in its case-in-chief and several other witnesses in support of these charges. Neither appellant nor any other interested party presented evidence.

Appellant testified that when Ta.C. was in his care, they lived in the one-bedroom apartment at 39 Galveston Place with Johnson and Flood. Johnson, who held the lease on the apartment, slept in the living room with Flood, while appellant and Ta.C. shared the bedroom. Appellant testified that he regularly left Ta.C. in Johnson's sole care when he was at work or otherwise out of the home. Appellant described Johnson as a good person and a co-parent; the two were friends and had been raising Ta.C. "as partners," he stated.

On November 7, 2018, appellant testified, he left the Galveston Place apartment at approximately 3:40 a.m. to bring soap and toiletries to a female friend of his who was staying in a vacant apartment that appellant used with the permission of another friend. Appellant left Ta.C. in the care of Johnson (who was sleeping) while he went on this errand. When asked where he went that morning after making the delivery to his friend, appellant invoked his Fifth Amendment privilege against self-incrimination and declined to answer. He continued to assert his right to remain silent when asked whether there were firearms or ammunition in the Galveston Street apartment; whether he had been in possession of a gun within the last six months; whether he had possessed or sold illegal drugs within the last six months; and about Johnson's source of income. The magistrate judge drew "all permissible negative inferences" from appellant's assertions of the privilege.³

Dr. Bernadette Carroll, a CFSA investigative social worker, testified that she went to the Galveston Place apartment on the morning of November 7 in response to a police report of an unidentified child found at the scene of a homicide there. She entered the apartment at approximately 7:00 a.m., after the police had obtained a search warrant. Dr. Carroll described the apartment as a small unit with a galley kitchen that connected the living and dining area to the single bedroom. In the living and dining area she saw an overturned mattress that was covered in blood. Mr. Johnson's body lay in the kitchen area, impeding access to the bedroom. Dr. Carroll stepped over the body to enter the bedroom. There was no bed in that room; she found Ta.C. asleep on the floor on what she called a "palette of pillows and blankets." (A police officer had been guarding the child, after ascertaining that he had not been hurt, until Dr. Carroll arrived.) There was blood splattered on Ta.C.'s clothing, face, and in his hair. Dr. Carroll confirmed that Ta.C. had not been injured. His diaper was soiled and the soles of his feet were covered with an unidentified black substance, which Dr. Carroll was able to remove with some effort. She took the child into CFSA custody and was able to determine the child's identity from CFSA records.

The police interviewed appellant later that morning. Dr. Carroll was allowed to listen in. She testified that in the interview, appellant admitted to using marijuana, stated that Johnson sold marijuana, and that there might be a rifle in the apartment.

Detective Stephanie Garner testified that in executing the warrant to search the Galveston Place apartment, she discovered a rifle on the floor in an open closet in the bedroom. The rifle was unsecured and accessible to anyone who went into the closet. Detective Garner also found two types of ammunition on the highest shelf of the closet, and one empty ammunition magazine. There was no testimony regarding whether the rifle was operable or was loaded. No drugs or drug paraphernalia, nor other evidence of drug usage or distribution, were found in the apartment.

Officer Calvin Branch testified that he was one of the police officers who responded to the shooting at Galveston Place. When he arrived at the apartment, he knocked on the door, and Mr. Flood answered. Flood had been shot in the head and was scared, but he was able to give a statement. He told police that someone had knocked at the back door and when he and Johnson went to open it, the person kicked in the door and drew a gun. A struggle followed, during which the intruder fired the shots that injured Flood and killed Johnson. Counsel for the District represented that a suspect (not appellant) had been charged with Johnson's murder. No other evidence was presented regarding the suspect or the motive for the intrusion and the killing.

Officer Branch was one of several police officers who testified about their familiarity with appellant and their recent interactions with him in the community before and after the November shooting. Branch knew him well and frequently saw appellant during the nighttime and early morning hours at a 7-11 convenience store and a Shell gas station located on South Capitol Street S.E. When Branch encountered him there, appellant usually appeared to be under the influence of a mind-altering substance, with bloodshot eyes and "hyped, but coherent." On one occasion, which took place in June 2018, Branch found appellant at the gas station in a highly intoxicated state and out of control. When appellant saw the police, he stripped completely naked and started running towards them. Appellant was taken to the hospital following that incident. Another officer testified about a call in October 2018 concerning a person under the influence and rolling around in the street outside 32 Galveston Place. The police found appellant lying in the street and "rapping." They took him to the hospital. Ta.C. was not with his father during any of these interactions with police.

Two other officers testified to their knowledge of appellant's arrests following Ta.C.'s removal. In the month preceding the neglect hearing, appellant was arrested twice—once for selling marijuana to an undercover police officer,⁴ and again when the police officer saw a pistol fall out of appellant's pants after he ran heedlessly into the street to avoid the police and was hit by a car.⁵

Finally, Kameko Johnson-Styles, a social worker assigned to Ta.C. and his siblings, testified that she had supervised four visits between appellant and his children following Ta.C.'s removal.⁶ On one of the visits, appellant was required to dispose of a pocketknife before he was allowed to enter CFSA, and he appeared to be under the influence of marijuana.

Based on the foregoing evidence, Magistrate Judge Fentress concluded that the District had proved by a preponderance of the evidence that Ta.C. was a neglected child within the meaning of D.C. Code §§ 16-2301(9)(A)(ii), (iii), and (x). After a disposition hearing, the magistrate judge concluded that, despite reasonable efforts toward reunification, returning Ta.C. to appellant's custody would be "contrary to the welfare of the child."⁷ Ta.C. was committed to the legal custody of CFSA.

On review, Associate Judge Becker reversed the finding of neglect under § 16-2301(9)(A)(iii), but upheld the findings of neglect under D.C. Code §§ 16-2301(9)(A)(ii) and (x), and affirmed Ta.C.'s commitment to the custody of CFSA.⁸ Judge Becker rejected appellant's argument that the magistrate judge had...