W.H. v. D.W., 11–FM–1334.

78 A.3d 327

W.H., Appellant,

v.D.W., et al., Appellees.

No. 11–FM–1334.

District of Columbia Court of Appeals.

Argued Nov. 15, 2012.

Decided Oct. 24, 2013.

Michael A. Troy, for appellant.

Anna Myles–Primakoff, with whom Melissa Colangelo was on the brief, for appellees.

Before BLACKBURNE–RIGSBY and EASTERLY, Associate Judges, and REID, Senior Judge.

REID, Senior Judge:

This case involves a justiciability question, that is, whether appellees, D.W. and J.W., have standing under a District of Columbia statute that authorizes custody by persons other than a natural or biological parent. The case also raises an issue concerning the presumption that a natural or biological parent, here appellant W.H. III (“W.H.”), has the right to custody of his children.

W.H. appeals from the order of the Family Court granting joint legal and physical custody of his biological children, T.H. and W.H. IV, to their brother, D.W.¹ and their maternal grandmother, J.W.; the order provided for supervised visitation by W.H. The Family Court issued its order after D.W. and J.W. applied for custody of T.H. and W.H. IV under the District of Columbia Safe and Stable Homes for Children and Youth Act of 2007 (“the Act”), D.C.Code §§ 16–831.01, et seq. (2012 Repl.). As we discuss below, among other provisions, the Act creates a legal right on the part of a third party, defined as someone who has lived with a child for a specified period of time and who also has “primarily assumed the duties and obligations for which a parent is legally responsible”; the third party has a legal, statutory right to seek legal and physical custody of the child, that is, legal responsibility for the child, thereby “promot[ing] a safe and stable home for [the] child.” SeeD.C.Code § 16–831.02(B)(i) and (ii); see alsoCouncil of the District of Columbia, Committee on Public Safety and the Judiciary, Report on Bill 17–41, “Safe and Stable Homes for Children and Youth Amendment Act of 2007,” 1 (Comm. Print 2007). The Act also includes a rebuttable parental presumption, specifies the factors for refutation of that presumption by clear and convincing evidence, and calls for custody to be awarded based upon the best interests of a child. D.C.Code §§ 16–831.05, 16–831.07.

W.H. challenges the judgment of the Family Court, arguing that the Family Court “erred in finding that the plaintiffs individually and/or jointly had standing, and erred in awarding custody to them,” because (1) as the biological father of the children, he “has a preferred status under the Act”; (2) third party custody “standing has not yet been found to be a constitutional undertaking by the District of Columbia”; and (3) D.W. and J.W. “lack standing to bring their claim against [W.H.], the children's biological father.” We conclude that (1) the Family Court correctly determined that D.W. has standing to bring a complaint for custody under the Act; (2) although J.W. does not have standing under the Act, the Family Court did not err by awarding custody of T.H. and W.H. IV jointly to D.W. and J.W. based on the best interests of the children; and (3) the Family Court properly found that D.W. and J.W. rebutted the statutory parental presumption by clear and convincing evidence. Consequently, we affirm the judgment of the Family Court.

FACTUAL SUMMARY

The record reveals that T.H. and W.H. IV, born in 1998 and 1999 respectively, are the biological children of W.H. and C.W. W.H. and C.W. resided together for only about one month. The children lived with their mother and D.W., who was born in 1991. Because C.W. experienced serious health problems, her mother, J.W., as well as D.W., provided increasing care for and nurture of T.H. and W.H. IV. C.W. died of an epileptic seizure in August 2010.

A few days after C.W.'s death, D.W. filed a complaint for custody of the children, indicating that he was the caretaker of T.H. and W.H. IV. He sought sole legal and physical custody of the children. He requested child support from W.H. D.W. and J.W. lodged an amended complaint for custody of the children on September 7, 2010. They requested joint legal and physical custody, and child support from W.H. The Honorable John Bayly issued an order, pendente lite, on the same day, requiring the children “to remain in the physical custody of [D.W. and J.W.],” with supervised visitation by W.H. The judge also placed the children in the “shared” legal custody of D.W., J.W., and W.H. In addition, Judge Bayly issued an order, on September 10, 2010, for home studies relating to the children.

On February 7, 2011, W.H. sought to dismiss the amended complaint on the ground that D.W. and J.W. did not have standing under the Act. Specifically, W.H. asserted that in accordance with D.C.Code § 16–831.02(b)(1), “[a] parent may move to dismiss a third party's claim at any time on the grounds that the third party does not meet the statutory requirements for standing under the Act,” including D.C.Code § 16–831.02(a)(1).² In his oppositionto W.H.'s motion to dismiss, D.W. argued that (1) he had standing under the Act as T.H.'s and W.H. IV's “de facto parent,” ³ (2) he also had standing to file for custody of the children as a third-party under D.C.Code § 16–831.02(a)(1)(B)(i) and (ii), and (3) clear and convincing evidence refuted the statutory parental presumption.

Judge Bayly held a hearing on the motion to dismiss, on May 4, 2011.⁴ He determined that D.W. had standing within the meaning of §§ 16–831.02(a)(1)(B)(i) and (ii), and that W.H. had not assumed his parental responsibilities “at all.” Therefore, he decided that D.W. could “proceed as Plaintiff in this case.” He did not reach a definitive conclusion as to J.W.'s standing, but he “proceed[ed] as though [J.W.] [were] here as Plaintiff,” while he continued to think about “the unusual factual situation.” After the hearing, Judge Bayly issued an order on May 4, 2011, declaring that: “Upon consideration of” D.W.'s “Opposition ... and all evidence herein, ... Defendant's Motion to Dismiss for Lack of Standing is DENIED.”

The case was transferred to the Honorable Hiram Puig–Lugo sometime in August 2011. On August 29, 2011, W.H. filed a “Contested Answer to Complaint for Custody and/or Access to Children and Counterclaim for Custody and/or Access to Children.” The trial court conducted an evidentiary hearing on the same day. D.W., J.W. and Ms. Bradford testified on behalf of Plaintiffs D.W. and J.W.; and W.H. and his fiancée testified on his behalf.

D.W.'s testimony revealed the following information. He was twenty years old at the time he testified, he worked about 24–27 hours a week, and he was the primary care giver for T.H. and W.H. IV. He has lived with them since their respective births, which is thirteen years in the case of T.H. Prior to her death, C.W. was “severely ill,” and experienced “really bad seizures.” As a result, “[s]he was normally in the bed for two weeks, three weeks at a time out of the month.” D.W. cooks and cleans, attends school meetings, has conferences with the children's teachers, and accompanies the children to many functions as their guardian. He also assists in paying the rent, does the shopping, buys the children's clothes, and does the laundry. Because both children have asthma, and W.H. IV also suffers from attention deficit and hyperactivity disorder, and because the children still are grieving over the loss of their mother, D.W. ensures that they get to appointments with doctors and therapists, and that they take their required medication. His grandmother helps with the care of the children.

During C.W.'s life, W.H. lived with T.H. for only “three weeks to a month,” never lived with W.H. IV, and visited with his children only “two to three times out of the year.” When W.H. IV and T.H. were around nine and ten years old, respectively, W.H. did not see them for a two-year period. After C.W.'s death, the children stayed with him for about three weeks in the summer of 2010, but W.H. usually did not keep his visitation appointments, and he failed to celebrate their birthdays. During the then current year, 2011, W.H. had sent only three checks in support of the children. The children “fear” the prospect of living with their father; they informed D.W. that they are “afraid that [W.H.] may leave them over at his friend's house most of the time and not pay much attention to them.” D.W. stated that he “would rather [the children] see [W.H.],” and that “they would love to see him more often, but they would rather stay with [D.W.]”

J.W., a full-time government employee, testified about her frequent contact with T.H. and W.H. IV (seven days a week), but indicated that C.W. and D.W. were “primary caregivers” for the children, and after C.W.'s death, D.W. remained their primary caregiver. J.W. lives about seven miles from D.W.'s residence; two adult sons reside with her. She confirmed the major caretaking tasks that D.W. performed (for example, cooking, shopping, doing the laundry), the contact of the children with their father only two to three times a year, and W.H.'s absence for a two-year period before C.W. died. J.W. described D.W.'s relationship with the children as “pretty good.” She has watched their interaction especially on Fridays or Saturdays at their “family night” during which they play games or watch a movie. T.H. and W.H. IV have a “very close” relationship with J.W.'s adult daughter and her three children. However, when W.H. “comes around,” W.H. IV “doesn't say a lot,” and T.H. “always argue[s] with him, asking him where he's been and why it took so long to contact them.” The children would rather stay with D.W. T.H. has stated that when W.H. takes them for a visit, he tends to “drop[ ] them off with somebody, or leav[e] them in the car for a couple of hours at a time.”

Ms. Bradford, discussed her home study investigation and report. She was able to complete the study of the homes of D.W. and J.W., but never received a response from W.H. to...