In re D.B., No. 03-FS-196.

• Decision Date: 01 May 2008
• Docket Number: No. 03-FS-196.
• Citation: 947 A.2d 443
• Parties: In re D.B., M.W., Appellant.
• Court: D.C. Court of Appeals

947 A.2d 443

In re D.B., M.W., Appellant.

No. 03-FS-196.

District of Columbia Court of Appeals.

Argued December 18, 2006.

Decided May 1, 2008.

Laurie McManus, for appellant.

Stacy L. Anderson, Assistant Attorney General, with whom Robert J. Spagnoletti, Attorney General for the District of Columbia at the time, and Edward E. Schwab, Deputy Attorney General at the time, were on the brief, for appellee, the District of Columbia.

Before FISHER and THOMPSON, Associate Judges, and BELSON, Senior Judge.

FISHER, Associate Judge:

This is an appeal from a judgment of the Superior Court prohibiting M.W. from visiting his daughter D.B. We affirm.¹

I. Factual Background

D.B. was born on October 26, 1996, and lived with her mother and four sisters until she was committed to the District of Columbia Child and Family Services Agency after her mother entered into a stipulation of neglect on August 9, 2001. Appellant, her father, had visited D.B. and her older sister C.B.² from time to time when they lived with their mother, and he saw them at weekly visits after they were placed in foster care.

On October 3, 2001, the Superior Court prohibited appellant from visiting D.B. and C.B. pending a criminal investigation into allegations of sexual abuse. Appellant repeatedly sought to reinstate his visitation rights, and in an order filed on November 25, 2002, the court scheduled an evidentiary hearing. That order explicitly notified the parties that hearsay would be admissible. The four-day hearing was held on December 12 and 20, 2002, and January 17 and 31, 2003, but appellant attended only the first day. On January 31, 2003, the court found clear and convincing evidence that appellant had sexually abused C.B. and D.B. Therefore, it continued to prohibit appellant from visiting his daughter D.B.

The court admitted a variety of evidence at the hearing. The girls' foster mother testified that both children told her that appellant touched them inappropriately, and C.B. also said that appellant engaged in various sexual acts with each of them. The foster mother said that D.B. was afraid of appellant. She also testified that both girls exhibited highly eroticized behavior, which she described in detail.

A doctor who examined the girls explained that highly eroticized behavior, like that described by the foster mother, can be a child's response to sexual abuse. The doctor also testified that C.B. had an abnormally "notched" hymen, a condition consistent only with sexual penetration. C.B. tested positive for chlamydia, a sexually transmitted disease.

Other evidence included interviews of D.B. and C.B. taped at the Children's Advocacy Center.³ Appellant's counsel introduced the tape of the first set of interviews (of D.B. and C.B.) without objection from the government. The government introduced a second interview of C.B. without objection from appellant's counsel. Although appellant did not testify, he called a character witness to speak on his behalf. The government also introduced documentation that appellant had been convicted of sodomy in 1986.

II. Legal Analysis

An order denying a parent the right to visit his child may be appealed to this court, In re D.M., 771 A.2d 360, 364-66 (D.C.2001), and we review for abuse of discretion. In re Ko. W., 774 A.2d 296, 303 (D.C.2001). Judicial discretion must be founded on correct legal principles and a firm factual foundation. Id. However, "[t]he concept of `exercise of discretion' is a review-restraining one." (James) Johnson v. United States, 398 A.2d 354, 362 (D.C.1979). "The appellate court role in reviewing the exercise of discretion is supervisory in nature and deferential in attitude." Id. (internal quotation marks and citations omitted).

Appellant asserts that the trial court committed reversible error by admitting hearsay and violated his due process rights by relying on such evidence to make such an important decision. He contends as well that the court erred in considering his previous sodomy conviction. Finally, appellant argues that the record is insufficient to permit meaningful appellate review because the taped interviews of C.B. and D.B. are missing.

A. Hearsay Was Admissible

Appellant contends that the trial court erred when it allowed the foster mother to give hearsay testimony about her conversations with D.B. and C.B. and when it admitted the second taped interview of C.B. Despite the government's arguments to the contrary, we consider this issue to be preserved for appeal.⁴ If error occurred, we review under a harmless error standard. See, e.g., In re Ty. B., 878 A.2d 1255, 1266-67 (D.C.2005). Having reviewed our statutes, rules, and controlling precedent, we conclude that the court did not err by admitting hearsay.

Appellant argues that D.C.Code § 16-2316(b) (2001), which provides that "[e]vidence which is competent, material, and relevant shall be admissible at factfinding hearings," prohibited the use of hearsay at an inquiry of this kind.⁵ This statute does not govern the issue before us, however. To be sure, one purpose of the hearing was to determine the relevant facts, but the proceeding did not fit within the corresponding definition of a "factfinding hearing" — that is, it was not "a hearing to determine whether the allegations of [the neglect] petition are true." Id., § 16-2301(16) (defining "factfinding hearing"). D.B.'s mother had already stipulated that D.B. was a neglected child.⁶

This was a hearing to determine the visitation rights of a non-custodial parent of a neglected child. The District of Columbia's statutes and rules of court do not specify how to conduct this type of inquiry.⁷ However, "[t]he proper disposition of a neglected child, including the question whether a non-custodial parent should be granted visitation rights, is committed to the sound discretion of the trial court[.]" In re Ko. W., 774 A.2d at 303. See also D.C.Code § 16-2320(a) (stating that once a child is found to be neglected, the Family Court has jurisdiction "over any natural person who is a parent . . . of the child," and the court may order any lawful disposition of the child to protect the child's best interest).

As the statutes and rules in effect at the time of this hearing make clear,⁸ the court addresses the issue of visitation in many different proceedings throughout the neglect process, including dispositional hearings, disposition review hearings, and permanency and permanency review hearings. See, e.g., D.C.Code § 16-2320(f) (2001) ("In its dispositional order for a child adjudicated neglected . . .," the court shall address matters set forth in § 16-2319(c), which include visitation); Super. Ct. Neg. R. 21(b)(1)(C) (2002) (findings and order of disposition must address visitation, and "if visitation is prohibited or severely restricted," the order must include "reasons for the prohibition or restriction"); Super. Ct. Neg. R. 21(a) (2002) (at disposition hearings, court shall consider predisposition report, which is to include "a specific plan of visitation," see Super. Ct. Neg. R. 20(a) (2002)). Hearsay is admissible in such hearings. See D.C.Code § 16-2316(b) (2001) ("Evidence which is material and relevant shall be admissible at . . . dispositional hearings."); D.C.Code § 16-2323(d) (2001) (requiring agency, in preparation for a disposition review hearing or permanency hearing, to submit to the court a report that addresses, among other things, "[t]he extent to which visitation has occurred[,]" and that contains information that the agency presumably will derive from third party statements). Appellant has not identified, and we have not found, any statute or rule that prohibited the admission of hearsay in the proceedings under review.

Neither does our decision in Ko. W. support appellant's argument. In that neglect proceeding, there had been accusations of sexual abuse, and "the father [was] denied all visitation with his sons without ever having been given the opportunity to rebut the serious hearsay allegations against him."⁹ 774 A.2d at 305. Indeed, "the father was never given the opportunity to testify. . . ." Id. at 306. Recognizing that denial of visitation seriously interferes with a non-custodial parent's right to raise his child, we held that the court must conduct an evidentiary hearing to ensure that its decision to deny visitation rests on a firm factual foundation. Id. at 305-06. We reversed and remanded, not because the court admitted hearsay evidence of the sons' accusations, but rather because it "prohibit[ed] visitation without conducting a factual inquiry, and without making a finding, as to whether the accusations against the father were true or false." Id. at 306.

Our opinion in Ko. W. apparently contemplates that hearsay evidence will be admitted,¹⁰ but it stresses that there must be adequate safeguards to ensure that the parent has the opportunity to rebut it. Judge Keary ordered the hearing in this case to afford appellant those very safeguards. Indeed, her order scheduling the hearing cites Ko. W., and nothing in that decision suggests that error was committed here.

B. Due Process

Appellant contends that even if hearsay is admissible at some proceedings addressing the issue of visitation, reliance on it in this case offended due process because the court effectively terminated his parental rights by completely prohibiting him from visiting his child. Stated abstractly, this is by no means a frivolous claim. A parent has a fundamental liberty interest in the care and custody of his child, Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and prohibiting visitation certainly disrupts and, if the ban is prolonged, may destroy, the parent-child relationship. The importance of the interest involved is "a commanding factor in the determination of what process is due. . . ." In re Jam. J., 825 A.2d 902, 915 (D.C.2003) (internal quotation marks and citations omitted). "On the other hand, the...