In re TG, 93-FS-1452

• Decision Date: 14 November 1996
• Docket Number: 93-FS-1453,93-FS-1457,No. 93-FS-1452,93-FS-1458 and 93-FS-1523 to 93-FS-1526.,93-FS-1452
• Citation: 684 A.2d 786
• Parties: In re T.G., C.G., D.G., and D.G., D.F., and E.G., Appellants.
• Court: D.C. Court of Appeals

684 A.2d 786

In re T.G., C.G., D.G., and D.G., D.F., and E.G., Appellants.

Nos. 93-FS-1452, 93-FS-1453, 93-FS-1457, 93-FS-1458 and 93-FS-1523 to 93-FS-1526.

District of Columbia Court of Appeals.

Argued April 26, 1995.

Decided November 14, 1996.

Melissa L. Coretz, Alexandria, VA, appointed by the court, for appellant D.F Diane Gaylord, Buffalo, NY, appointed by the court, for appellant E.G.

Michael H. Noyes, Greenbelt, MD, appointed by the court as guardian ad litem, for T.G., C.G., D.G., and D.G.

Sonia A. Bacchus, Assistant Corporation Counsel, with whom Erias A. Hyman, Acting Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for the District of Columbia.

Before WAGNER, Chief Judge, KING, Associate Judge, and MACK, Senior Judge.

MACK, Senior Judge:

The mother and father of four young children challenge, in separate appeals, the findings of a trial court that the children were "neglected" within the meaning of D.C.Code § 16-2301(9)(B) and (F) (1989 Repl. & 1996 Supp.) as well as the court's order committing the children to the Department of Human Services (DHS) for placement in foster homes. Basically, the parents attack the sufficiency of the evidence to support a finding of neglect. In the circumstances of this case, viewing, as we must, the evidence in the light most favorable to the government, see In re S.G., 581 A.2d 771, 774-75 (D.C.1990)(quoting In re T.M., 577 A.2d 1149, 1151 (D.C.1990)), we agree with the parents that the evidence supporting the finding that the children were "neglected" was insufficient as a matter of law.¹ The government did not meet its burden of proof (under D.C.Code § 16-2301(9)(B)) of showing that any failure of proper care was not due to the parents' lack of financial means. In re D.C., 561 A.2d 477, 479 (D.C.1989). On this record, we are disturbed at the rush to judgment exhibited by DHS, which on September 13, 1992, took the children into protective custody (and the following day sought the finding of neglect) based on a single visit to the home of the children. Finally, on the basis of a transcript of an October 1993, dispositional hearing which was requested, but not made a part of this record until after oral argument in this court, we conclude that DHS has not acted adequately to further the basic aim of society's interest in reunification of the family.

I.

This family came to the attention of city officials for the first time on September 13, 1992. On that morning, the children's maternal grandmother died at her residence. An officer, responding to the report of death, found the two older children, T.G. and D.G., in their grandmother's house. The officer later described the house as being in a deplorable state and the children dirty and in need of clean clothes and baths. Shortly thereafter, the children's mother arrived with the two younger children. The officer drove the mother and the four children to the residence of the mother and father; he found that house likewise to be in a deplorable state. The two younger children were also dirty and in need of baths.² The officer took all four children into protective custody and carried them to DHS. A social worker visited the two houses the same afternoon and thereafter corroborated the officer's description of the children and their living conditions. The next day, September 14, 1992, DHS filed neglect petitions. The court ordered that all four children be placed in the custody of DHS, pending further action, basing its finding on the inadequacy of the children's living arrangements and their then ages (approximately eight, four, two, and one).

The following year, on September 8, 1993, the trial court conducted a factfinding hearing with regard to the neglect petitions, heard and credited the testimony of the officer and social worker who discovered the family on September 13, 1992, and based its finding of neglect (pursuant to D.C.Code § 16-2301(9)(B) and (F))³ on the deplorable living conditions. The court did not adopt the reasoning of DHS that the mother and father were unable to discharge their parental responsibilities because of physical or mental disabilities, specifically stating that it did not find respondents to be neglected children pursuant to D.C.Code § 16-2301(9)(C). The mother and father were present at the hearing, did not testify, but moved through counsel for dismissal on the ground that a finding of neglect could not be based upon a lack of financial means (see § 16-2301(9)(B) & (24), supra note 3), and that, therefore, DHS had failed to meet its burden. The trial court rejected the argument of DHS that the burden of showing that the deplorable living conditions resulted from the lack of financial means shifted to respondents; it nevertheless denied the motion to dismiss, holding that DHS had met its burden of proof. On October 26, 1993, the court held a dispositional hearing, indicated its intent to order a home-study and continued the placement of the children under the custody of DHS (with the boys remaining at St. Ann's Infant Home and the girls in foster care of a paternal aunt).

II.

The term "neglect," warranting the protective intervention of the state, is by its very nature the equivalent of "negligence"— i.e., implying habits or omissions of duty, patterns of neglect, etc. See WEBSTER'S NEW INTERNATIONAL DICTIONARY, SECOND EDITION 1637 (1948) (emphasis supplied). Thus, we have held that a trial court's inquiry in neglect proceedings must go beyond "simply examining the most recent episode." In re A.S., 643 A.2d 345, 347 (D.C.1994) (quoting In re J.J.Z., 630 A.2d 186, 194 (D.C.1993) (quoting In re O.L., 584 A.2d 1230, 1233 (D.C.1990))). "The judge must be apprised of the entire mosaic." O.L., supra, 584 A.2d at 1233 (quoting In re S.K., 564 A.2d 1382, 1389 (D.C.1989)). Quite obviously, the "entire mosaic" includes an examination of any history of, but also the reasons for, neglect— i.e., chronic indifference, carelessness, dereliction, inability to perform, etc.

We have also held that "The purpose of the child neglect statute is to promote the best interests of allegedly neglected children." A.S., supra, 643 A.2d at 348 (quoting In re B.C., 582 A.2d 1196, 1198 (D.C.1990) (per curiam)); see also J.J.Z., supra, 630 A.2d at 191-92; In re J.A., 601 A.2d 69, 76 (D.C.1991) (per curiam). These "interests are presumptively served by being with a parent, provided that the parent is not unfit." S.G., supra, 581 A.2d at 785.

Viewed against this backdrop, the circumstances of the instant case give us cause for concern. All four children were taken into protective custody on the same day (September 13, 1992), that their ailing grandmother died, and that their living quarters were first observed. They were taken into protective custody because they were dirty and their living quarters were dirty. All of the evidence as to parental housekeeping or child care was gathered on that one day in September 1992, and a neglect petition was filed on the following day.⁴ It was not until the following year, on October 12, 1993, that the children, on this evidence, were found to be neglected. Meanwhile, it appears that it was not until 1993 that DHS, in preparing for an October 26 disposition hearing, sought to contact these parents to inquire about reunification. At this time, no assessment of the parents' current living conditions had been made and no case plan had been developed. During this period, the parents had visited the two boys at St. Ann's Infant Home on a regular basis (and, presumably, the two girls who were in the care of a paternal aunt).

We are dealing here with parents who have not been found to be "unfit." While the neglect petition alleged incapacity because of physical or mental disabilities, the trial court did not find neglect on these grounds. Moreover, we have recognized that the "relevant focus" for the court in neglect proceedings is the children's condition, not parental culpability. In re B.C., 582 A.2d 1196, 1198 (D.C.1990) (per curiam); see also In re LeShawn R., 114 Daily Wash. L. Rptr. 1109, 1118 (D.C.Super. Ct. April 11, 1986). State intervention is justified only after it is demonstrated that the need arises from some act or failure to act on the part of the parent "which endangers the welfare of the child." LeShawn R., supra. "The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents." Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982). In the absence of danger to the physical or emotional health of a child, or the significant threat thereto, the state should be cautious before intervening. See Judith Areen, Intervention Between Parent and Child: A Reappraisal of the State's Role in Child Neglect and Abuse Cases, 63 GEO. L.J. 887, 933 (1975).

The problem in this case arises as a result of DHS's immediate focus on the conditions in two residences on a particular day. One could find empathy for the plight of social workers who, charged with the protection of children, must face the stark realities of poverty in an urban dwelling. One could also argue that constant exposure to filthy living conditions creates the risk of physical deterioration.⁵ Not enough focus, however, was centered on the physical or mental condition of the children overall. There was testimony about some skin rash, but also the testimony of a social worker that she had seen many dirty children.⁶ There was testimony that there was no edible food in the residences, and that at the time the children appeared to be hungry. Yet, the children bore no signs of malnourishment or abuse requiring medical attention. In fact, there was testimony that the mother had explained that the father used borrowed funds to bring home food every day. There was testimony that the only family...