In re AH

• Decision Date: 26 February 2004
• Docket Number: No. 01-FS-764, 01-FS-765, 01-FS-766, 01-FS-767, 01-FS-768.,01-FS-764, 01-FS-765, 01-FS-766, 01-FS-767, 01-FS-768.
• Citation: 842 A.2d 674
• Court: D.C. Court of Appeals
• Parties: In Re A.H., De.H., K.H., Shl.H. and S.H., Respondents. D.H., Appellant.

842 A.2d 674

In Re A.H., De.H., K.H., Shl.H. and S.H., Respondents.

D.H., Appellant.

No. 01-FS-764, 01-FS-765, 01-FS-766, 01-FS-767, 01-FS-768.

District of Columbia Court of Appeals.

Argued November 20, 2003.

Decided February 26, 2004.

Rhonda R. Brown appointed by the court for appellant.

Sheila Kaplan, Assistant Corporation Counsel, with whom Arabella W. Teal, Interim Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel at the time the brief was filed, were on the brief, for appellee District of Columbia.

Christopher May, Washington, DC, and Charles J. Szlenker filed statements in lieu of a brief on behalf of respondents.

Before STEADMAN, SCHWELB and GLICKMAN, Associate Judges.

GLICKMAN, Associate Judge:

D.H. asks us to reverse the judgment of the trial court that she neglected her five small children by allowing them to live in an unsafe and unsanitary home environment. D.H. contends that the evidence of deplorable conditions was insufficient to support the judge's findings of neglect, especially his finding that those conditions were not due to her lack of financial means. We are satisfied, however, that the requirements of our neglect statute were met, and there was no failure of proof. We affirm the judgment on appeal.

I.

The five respondents in this case were between seven months and seven years of age when the Child and Family Services Agency (CFSA) removed them from the care of their mother, appellant D.H., and petitioned the Superior Court Family Division to find them neglected. The children had been residing with D.H. and their maternal grandmother J.H. in a two-story townhouse apartment in East Capitol Dwelling, a public housing project operated by the District of Columbia Housing Authority. Citing D.H.'s tolerance of conditions in the apartment that rendered it "uninhabitable for humans" and threatened the health of its occupants, including accumulations of human feces and rotting food on the floors and "and enormous cockroach infestation" throughout the premises, the CFSA charged that the children were without proper parental care and control necessary for their physical, mental, and emotional health, and that the deprivation was not due to their parent's lack of financial resources. See former D.C.Code § 16-2301(9)(B) (2001).¹ The social worker who initiated the neglect petition, Kimberly Kellerhouse, suspected that D.H. and J.H. suffered from a "deep seated depression or mental illness" that explained why they "would allow themselves and the children to live in such a subhuman environment."²

At the fact-finding hearing, the trial court received testimony from four witnesses in the following order: Vivian Norris, the East Capitol Dwelling property manager who referred the H. family to CFSA in June of 2000;³ Ms. Kellerhouse, the petitioning social worker; Metropolitan Police Officer McKoy Perry, who assisted in the emergency removal of the children from the home; and D.H. The respondents' grandmother J.H. was present during the proceeding but was not called as a witness.⁴

Vivian Norris testified that she first came in contact with the H. family when she participated in a required property inspection in January 2000. Ms. Norris stated that when she entered the H. home, she smelled a "foul odor" from feces and waste and saw "trash all over the floor."⁵ The children were running about, naked or minimally clothed, and visibly dirty (though they did not appear to be ill or disabled). In the kitchen, Ms. Norris noticed that the gas oven was on, the oven door was open, and the burners on the stove were lit. Because the children were playing in the kitchen, Ms. Norris turned the oven and burners off and told D.H. "that wasn't safe with them running around and having the door all the way down and the oven on." D.H. responded that she needed the oven to provide heat because her furnace had stopped working. D.H. had never complained about the lack of heat or reported that the furnace was broken.

Ms. Norris stated that the kitchen was in "deplorable" condition. "[T]here was some meat out on the table that looked as if it was just sitting there to be cooked `cause it was raw meat. But it had roaches crawling on it. She had other types of open food on the counter and dirty dishes and stuff like that with roaches crawling all around, the table and counter top areas." The rooms upstairs were in no better shape. "The bedrooms had clothes and trash all on the floors, I mean to the point where you would have to kick through it to get into that space. And that's in every room." The bathroom was "filthy," and Ms. Norris found feces in the "baby pot" and the bathtub. D.H. told her that the family had been using the bathtub as a toilet because the toilet was "stopped up." As in the case of the furnace, D.H. had never reported this problem.

Following this inspection, Ms. Norris arranged for repairs and maintenance to be performed in the townhouse, including a roach extermination ("they would have to bomb. It wouldn't just be a spray extermination"). Ms. Norris reinspected the apartment the following week and again in May 2000. On each occasion, Ms. Norris testified, the unit was still fetid and filthy as before, even after repairs supposedly had been made,⁶ a roach extermination had been done, and D.H. had been urged to clean up the premises and been served, in February, with a "cure or vacate" notice citing the obligation under the lease to keep the premises in a safe and sanitary condition, free of trash and debris.

During her last visit, in May, Ms. Norris told D.H. and J.H. that she would notify the CFSA because the children never had clothes on and were not in a clean environment, and D.H. and J.H. were doing nothing about it. According to Ms. Norris, D.H. was "nonchalant," saying that she had cleaned the house and acting as if "she didn't see anything wrong with that situation."

Kimberly Kellerhouse became involved with the H. family after the CFSA was notified. Ms. Kellerhouse testified that she worked with Families Together, a crisis intervention program run jointly by the CFSA and a private social services agency to help families with abused or neglected children remain intact and avoid removal of the children to foster care. Ms. Kellerhouse and an assistant met the H. family for the first time on June 19, 2000, when they visited the home to begin a week-long suitability assessment.

When she entered the apartment on June 19, Ms. Kellerhouse testified, she was hit with "the stench of stale urine." Wherever she looked, "the walls, the floors, the ceiling were smeared in clumps with dust and dirt." The floor between the living room and the kitchen was "rotted." Ms. Kellerhouse learned that the hot water heater and the heating system in the apartment were broken and there had been no heat all winter. The refrigerator had also been broken for some time. Throughout the apartment, cockroaches were rampant:

They were on the walls, the floors, the furniture. There was a dresser in the home in the living room and clothes were stacked in, on, around it. There were cockroaches crawling in, on, around it.

* * * * * *

[In the kitchen, Ms. Kellerhouse saw] [g]rease all over the counters, all over the stove, and there were . . . open pots of grease, with, it could have been decaying food .... Cockroaches crawling in and out of those pots, cockroaches crawling in and out of the stove, all over the sink. There were canned goods on the table, insects crawling on that.

At one point one of the children came into the apartment with a hot dog and the grandmother reached behind the roachinfested dresser in the living room and produced an open bottle of ketchup for the girl to use.

Ms. Kellerhouse interviewed D.H. as part of her initial assessment. D.H. told her that she could not get up early enough in the morning to hold a job, though she had worked in a summer job when she was in high school. D.H. was not able to provide definite information about the condition and maintenance of the apartment. For example, Ms. Kellerhouse "asked about the heat and didn't ever really get an answer as to why the heat had never been fixed." Ms. Kellerhouse "asked how long the hot water had been broken and if it affected the plumbing and was told, `Well, sometimes."' Ms. Kellerhouse "asked questions about ... the responsiveness of D.C. Housing . . . and was told it was not what the tenants would have hoped." Ms. Kellerhouse told D.H. that the apartment was not a fit place to live and that she would investigate alternatives. In response, and throughout the interview, D.H. was notably passive⁷ and seemingly acquiescent in the deleterious conditions in which she and her children were living. Ms. Kellerhouse "didn't get a sense of urgency.... [She] got, really, a sense of apathy." Ms. Kellerhouse ascertained that D.H. had never been assessed for clinical depression or other mental health issues.

Ms. Kellerhouse returned to the H. residence four days later, on June 23, 2000. Conditions in the home were, if anything, worse. Upon her arrival, Ms. Kellerhouse testified, "[t]he smell of feces was so pungent that it caused [her] to gag." There were, she observed, four piles of feces on the floor in the living room. D.H. said that one of her sons had defecated there that morning. She had done nothing about it. Ms. Kellerhouse had to prod D.H. to clean up the feces and then had to instruct her to use a wet mop after D.H. unsuccessfully tried to make do with a dustpan and broom. Ms. Kellerhouse visited the H. family again on June 27, 2000. The apartment was still filthy and roach-infested. During this period, Ms. Kellerhouse took steps to help the H. family with its housing situation. She hand-delivered a letter to the D.C. Housing Authority in which she catalogued what needed to be done in the East Capitol Dwelling apartment.⁸ In addition, she or her aide investigated alternative housing options and helped D.H. to...