In re DM, No. 98-FS-1546

• Decision Date: 12 April 2001
• Docket Number: No. 98-FS-1547., No. 98-FS-1546
• Parties: In re D.M., Don. M., Appellant.
• Court: D.C. Court of Appeals

771 A.2d 360

In re D.M., Don. M., Appellant.

Nos. 98-FS-1546, 98-FS-1547.

District of Columbia Court of Appeals.

Argued February 27, 2001.

Decided April 12, 2001.

Donald M. Temple, Washington, DC, for appellant.

Sheila Kaplan, Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for the District of Columbia.

Deborah D. Boddie, Washington, DC, filed a memorandum in lieu of brief for D.M.

Before STEADMAN, SCHWELB, and, RUIZ, Associate Judges.

Schwelb, Associate Judge:

Childhood is precious, and the premature loss of innocence can be tragic. This is such a case. The respondent, D.M., now almost sixteen years of age, was abused by her mother and removed from her home a few months after her fifth birthday. Notwithstanding two unsuccessful attempts to reunify the family, D.M. has spent well over half her life in foster care. At the age of twelve, while residing at one of her foster homes, D.M. gave birth to a daughter of her own; the child's alleged father, a boy not much older than D.M., was the nephew of D.M.'s foster mother. D.M. has had no contact with her mother for many years, and her own child lives with relatives of the young father.

Presently before the court are two separate appeals by D.M.'s mother from an order of the trial court entered on September 1, 1998. In that order, the judge refused to modify an earlier ruling in which she had barred any visitation between D.M. and her mother, and she also prohibited any visitation between D.M. and her mother's sister, D.M.'s aunt. In addition, the judge declined to order an investigation, proposed by counsel for the mother, into the circumstances of D.M.'s pregnancy and motherhood, concluding that there was no evidence that D.M. had been sexually abused. In Appeal No. 98-FS-1546, the mother contends that the trial judge abused her discretion by continuing to prohibit visitation. In No. 98-FS-1547, the mother attempts to challenge the judge's refusal to order the requested investigation.

The results of D.M.'s commitment to the Department of Human Services (DHS), and of her placement in foster care, have been less than ideal. The best interests of an abused child cannot be said to have been achieved when she has become pregnant, and then a mother, at the age of twelve, all while living in a foster home to which she was sent to protect her from harm. With respect to the judge's disposition of the specific and very limited issues now before us, however, we discern no abuse of discretion or error of law.

I.

D.M. was born on June 30, 1985. For the first five years of her life, she lived with her mother.¹ On October 17, 1990, she came to school with welt marks on her face and chest and above her right eye. It appears that the mother had beaten D.M. with a belt and had hit and kicked her in the face. The mother admitted that she had physically disciplined her daughter for being "hard-headed."

D.M.'s teacher called the police, and D.M. was taken into protective custody. By order of the Superior Court, she was placed in a foster home pending further proceedings. D.M. was subsequently found to be a neglected child, and she was committed to the custody of DHS. From 1990 until 1996, D.M. was in and out of foster care. Representatives of DHS attempted to work towards reunification of D.M. with her mother and with her younger brother, who was born in 1990. For two separate periods some five years apart, D.M. was placed in her mother's home under the protective supervision of the court. Neither attempt at reunification was successful.²

On July 18, 1996, the judge, having concluded that the prospects for reunification were unfavorable, ordered representatives of the District to initiate the process for terminating the mother's parental rights. Evidently in an attempt to keep all options open, however, the judge also ruled that the mother should be permitted to have supervised visitation with D.M. Subsequently, on November 20, 1996, a hearing was held during which, by consent of the parties, the judge interviewed D.M. in chambers. The following day, on the basis of this interview and the other facts before her, the judge ordered that visitation between D.M. and her mother be denied until further order of the court.

In November 1996, D.M. was eleven and one half years old. Although the record is not quite clear on the point, the mother alleges that, by this time, D.M. had already become sexually active. In any event, D.M. became pregnant during the autumn of 1997. In March 1998, some six months into the pregnancy, D.M.'s condition was brought to the attention of the court, and it appears that DHS representatives proposed a surgical procedure to end the pregnancy. The mother, who fainted in the courtroom after she was made aware of D.M.'s plight, declined to consent, and no abortion was performed.³ The court ordered that D.M. be placed in a therapeutic foster home at which mental health services could be provided.

D.M.'s daughter, A.M., was born in June 1998, shortly before D.M.'s thirteenth birthday. The report of a psychological evaluation of D.M. conducted soon after the birth of her baby confirms that A.M.'s father was a nephew of the foster mother with whom D.M. was living at the time that she became pregnant. A.M. was placed in the custody of D.M.'s foster mother, who was the aunt of the child's father, and who was in charge of the foster home in which D.M. had become pregnant at the age of twelve.

These events precipitated legal action on two fronts. On April 3, 1998, after having secured new counsel, D.M.'s mother, described in her pleading as D.M.'s "next-best friend," filed a complaint against the District in the United States District Court for the District of Columbia. See note 3, supra. In this action, the mother sought several millions of dollars in damages for "deprivation of civil rights, negligent training and supervision, and negligent infliction of emotional distress." On June 17, 1998, the mother's attorneys in the federal suit, who had entered an appearance on her behalf in the Superior Court proceeding, filed a motion in the present case which was styled as follows:

Emergency Motion for Immediate Modification of the Court's Order Regarding Family Reunification and Family's Visitation Rights and to Order an Investigation and Report Regarding Circumstances Surrounding [D.M.'s] Possible Sexual Abuse, Pregnancy and Paternity

On September 1, 1998, the trial judge denied the mother's motion in a thirteen-page written order. These appeals followed.

II. THE VISITATION ISSUE

A. Jurisdiction.

In Appeal No. 98-FS-1546, the mother appeals from that part of the trial judge's order which maintained in effect the judge's previous prohibition against visitation by D.M.'s mother and which denied visitation rights to D.M.'s aunt. Before reaching the merits of the mother's appeal, we must first determine whether we have jurisdiction to entertain it. "[W]here a substantial question exists as to this court's subject matter jurisdiction, it is our obligation to raise it, sua sponte, even though[, as here,] no party has asked us to consider it." Murphy v. McCloud, 650 A.2d 202, 203 n. 4 (D.C.1994) (citations omitted). "Without jurisdiction, the Court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall) 506, 514, 19 L.Ed. 264 (1869)); cf. Childs v. United States, 760 A.2d 614,

617 & n. 4 (D.C.2000).

The mother has not invoked any interlocutory appeal statute, and the question before us is whether the prohibition against visitation is appealable as a final order. "An order is final only if it disposes of the whole case on its merits, so that the court has nothing remaining to do but to execute the judgment or decree already rendered." In re Estate of Chuong, 623 A.2d 1154, 1157 (D.C.1993) (en banc) (internal quotation marks omitted) (quoting McBryde v. Metro. Life Ins. Co., 221 A.2d 718, 720 (D.C.1966)). "To be reviewable, a judgment or decree must not only be final but also complete, that is, final not only as to all parties, but as to the whole subject matter and all the causes of action involved." District of Columbia v. Davis, 386 A.2d 1195, 1198 (D.C.1978) (citations omitted). "[T]he general rule is that the order stating the sanction, quantum of relief, or the like is the one with requisite finality." Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 36 (D.C.1979). As the court explained in Trilon Plaza,

the statute [does not] permit appeals from orders where they are but steps toward final judgment in which they will merge. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results.

Id. at 37 (quotingCohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)) (internal brackets and ellipsis omitted).

The order from which the mother has noted her two appeals states, in pertinent part, as follows:

ORDERED, that permanency planning shall continue to move forward with the goal of adoption without further reunification attempts; and it is further

ORDERED, that the Court's Order of November 21, 1996 shall remain unmodified; and it is further

ORDERED, that visitation with Movant [Don. M.], the Respondent's natural mother, or with [B.T.M.], the Respondent's maternal aunt, is DENIED; and it is further

ORDERED, that further investigation of sexual abuse, pregnancy and paternity is DENIED.

Obviously, the judge's order did not dispose of everything in the case that could be litigated in the future, for "permanency planning" was to...