In re AM, 88-750.

• Decision Date: 25 April 1991
• Docket Number: No. 88-750.,88-750.
• Citation: 589 A.2d 1252
• Parties: In re A.M., an Infant. Appeal of S.M.
• Court: D.C. Court of Appeals

589 A.2d 1252

In re A.M., an Infant.

Appeal of S.M.

No. 88-750.

District of Columbia Court of Appeals.

Argued February 28, 1990.

Decided April 25, 1991.

Ruth Harthoorn, appointed by the court, for appellant.

Robert E. Sylvester, appointed by the court, for appellee A.M.

James C. McKay, Jr., Asst. Corp. Counsel, with whom Herbert O. Reid, Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, were on the brief, for appellee District of Columbia.

Before BELSON, TERRY and SCHWELB, Associate Judges.

TERRY, Associate Judge:

Appellant S.M. appeals from a trial court order revoking protective supervision of her child, A.M., the result of which was to return A.M. to a foster home. S.M. contends that the court lacked authority to revoke its previously entered protective supervision order. We disagree and therefore affirm the order under review.

I

In October 1983 the District of Columbia filed a petition in the Superior Court alleging that A.M., then six years old, was a neglected child.¹ The petition alleged that A.M.'s mother, S.M., had been sentenced in August 1983 to one year in jail for drug possession after her probation was revoked, that A.M. had been late for school fifty-seven times and absent from school fifty-five times during the two preceding school years, and that he had been "frequently sent to school unkempt and hungry." The petition also said that the whereabouts of A.M.'s father were unknown. Stipulations were entered by all parties to these facts and to the further fact that A.M. had sometimes been sent to school without adequate clothing. At the request of his maternal grandmother, A.M. was placed in shelter care on an emergency basis. The shelter care order was later renewed.

On August 28, 1984, A.M. was adjudicated neglected and committed to the custody of the Department of Human Services (DHS). The trial court held a hearing every six months thereafter, as required by D.C.Code § 16-2323(a) (1989), to review A.M.'s status. After one such hearing, on July 27, 1987, the court modified its original disposition by transferring A.M. from the custody of DHS to the custody of his mother, but under protective supervision. The court's July 27 order was conditional, requiring the mother to cooperate with her social worker in "seeking and accepting" medical and psychological treatment for herself and for A.M.,² and also to begin a program of family counseling, with a report to be made to the court at the next review hearing.

In March 1988 the District, citing ongoing neglect and repeated violations of the court's order by the mother, filed a petition under Super.Ct.Negl.R. 19 asking the court to revoke its protective supervision order. The mother, in her motion to dismiss the District's petition, argued that revocation of the order was not authorized by statute and that Rule 19 was "a mere procedural rule" which could not deprive her of her substantive legal rights. The court held a fact-finding hearing on the District's petition, resulting in the order from which this appeal is taken.

Two witnesses testified at the hearing: Thomas Gunnoud, a clinical social worker on the staff of Children's Hospital, whose job it was to diagnose and provide therapy to children and families, and Alberta Oliver, the DHS social worker assigned to A.M.'s case. Mr. Gunnoud stated that he first met A.M. on July 28, 1987, accompanied by his DHS social worker and his mother, S.M. It was agreed at that meeting that A.M. would make weekly visits to Children's Hospital for individual psychotherapy, with the first appointment scheduled for August 4. S.M. canceled that appointment, however, by phone and without apparent reason, and did not appear with A.M. on August 7, when the appointment was rescheduled. Thereafter S.M. failed to bring her son to any scheduled therapy sessions and never again called. Mr. Gunnoud said that on the only occasion when A.M. himself appeared for therapy, on December 18, 1987, he was brought in by a former foster parent, not by his mother.

Alberta Oliver, a DHS social worker for twenty-one years, was assigned to A.M.'s case. She testified that A.M. and his younger brother, V.M., had been removed from their mother's care and placed with foster parents on February 6, 1984, after having been found alone and unsupervised.³ The children remained in DHS's custody until July 1987, when they were returned to their home. "Things went well for a while," Oliver said, but sometime around November of that year the children's situation began to deteriorate.

In February 1988 S.M. finally admitted to Oliver that she had a drug problem, that she had not been paying her rent, and that she was selling her food stamps to support her drug habit. Oliver took steps to enable S.M. to enter a drug-treatment program at Seton House, but S.M. "never followed through on it."⁴ Finally, on May 4, S.M. was admitted to a twenty-one-day inpatient drug program at District of Columbia General Hospital after Oliver herself had taken her there. When Oliver telephoned the hospital on May 9, however, she learned that S.M. had discharged herself and left. S.M. later told Oliver that she had signed herself out because "she didn't like the program." After this happened, Oliver "told her if she walked out of D.C. General, I'm not running around trying to transport her different places because I felt that if she wanted help, she would have stayed there. And she told me she was going to and I wouldn't have to worry about it."

At the close of the District's case, the trial court asked counsel for S.M. if she had any evidence to controvert Oliver's testimony. Counsel replied that she did not. The court then said:

... In the first place, the Court noted yesterday and notes today that, on July 27, 1987, that A.M. was released in a protective supervision status, after having previously been adjudicated neglected, to his mother, and that that disposition order says, "It is hereby ordered that the child be permitted to remain in his home provided that the following conditions are observed". One of those conditions was that the mother cooperate with her supervising officer, the social worker, in seeking and accepting, among other things, psychiatric treatment for the child.

Ms. Oliver, or the Department of Human Services, made it possible for the mother to comply with that condition. Based upon the testimony of the witness who testified yesterday, the psychologist Mr. Gunnoud, it is absolutely clear that the mother has not complied with that condition; that is, she has not taken A.M. to the therapist as she should have.

It is also a condition of the protective supervision that the child be properly cared for. For an eleven-year-old child, or a ten-year-old child, it should be obvious to any parent that the child must be in the physical presence of that parent for—during an appropriate time, during the nighttime, for instance. And, according to Ms. Oliver, there were three occasions when this was not so; that is, the child had been left alone. There is no contesting either one—any of those allegations.

My view is that the Court makes two determinations; one, whether the allegations contained in the affidavit have been shown, and then it must determine whether to revoke protective supervision. It's very much like a juvenile probation proceeding or an adult probation proceeding; which is to say—and I make this point in response to Ms. Harthoorn's suggestion that it would not be enough to revoke protective supervision where ... "just the technical violations are shown," that is, where it is shown—as it was only shown today during the course of this hearing that therapy—that there was not therapy.

It may be relevant in another case, I submit, to show that although the therapy sessions were not kept, that there was also some damage. For instance, in a case where a mother had, for purposes of example, ten conditions—rather onerous conditions—and there was one condition which she did not comply with, I think a reasonable argument could be made that even though there was a violation of a condition of the protective supervision, the Court would view this with discretion and should not revoke it. But that's another case. That's not this case. And I suggest that the Court is able to infer that there was damage. I think that's a reasonable inference as drawn from—that can be drawn from ordering the therapy in the first place. The Court doesn't have to blink at the reality that there is a reason for therapy.

There is damage, if only because whatever symptom, whatever condition A.M. has is not being treated. So there's damage in just maintaining the status quo. The court could make that inference.

The court then ordered that protective supervision be revoked. Addressing the legal arguments advanced by counsel for the mother, the court stated:

I wonder whether the mother has waived whatever ... rights she has to challenge the ... "authority of the Court" to revoke protective supervision at this stage when she has, in fact, accepted the conditions. You know, citizens have the right to waive all kinds of rights....

... The mother agreed to be bound by these conditions and agreed and acknowledged that failure to comply with any of the conditions might very well result in a revocation of the protective supervision.

Some time later the court entered a final order, retroactive to the date of the hearing, revoking protective supervision and committing A.M. to the custody of DHS, which in turn placed him in a foster home.⁵ This appeal followed.

II

Appellant contends that the trial court lacked authority to revoke its protective supervision order regarding the care of A.M. We hold, to the contrary, that such authority was expressly granted by statute, namely, D.C.Code § 16-2301(19) (1989). Moreover, even if that statute did not exist, the best interests of the child—the controlling factor in any neglect proceeding— would...