In re Z.M.
| Decision Date | 14 April 2022 |
| Docket Number | 20-FS-770 |
| Citation | 272 A.3d 1183 |
| Parties | IN RE Z.M.; District of Columbia, Appellant. |
| Court | D.C. Court of Appeals |
Pamela Soncini, Assistant Attorney General, with whom Karl Racine, Attorney General, Loren L. AliKhan, Solicitor General (at the time of argument), Caroline S. Van Zile, Principal Deputy Solicitor General (at the time of argument), and Stacy L. Anderson, Senior Assistant Attorney General, were on the brief, for appellant.
Madhavan K. Nair for appellee.
Katherine Piggott-Tooke, Guardian ad Litem, with whom Melissa Colangelo, Guardian ad Litem, was on the brief.
Before Glickman and Deahl, Associate Judges, and Thompson,* Senior Judge.
The District appeals an order of the Superior Court reversing a magistrate judge's adjudication of Z.M. as a neglected child. The District filed its neglect petition after Z.M.’s mother, C.M., twice left the eighteen-month-old child at day care and failed to pick him up at the end of the day, without contacting the day care, being reachable, or having someone else fill in for her, and without providing a satisfactory reason or excuse. On review, the associate judge held that the findings of neglect were plainly wrong or without sufficient support in the evidence presented to and considered by the magistrate judge. We reverse the associate judge and reinstate the magistrate judge's determination that Z.M. was a neglected child within the meaning of D.C. Code § 16-2301 (9)(A)(iv) (2021 Supp.).
C.M. and Z.M. lived with C.M.’s mother, N.M., in the District. When Z.M. was around eighteen months old, C.M. enrolled him in a day care facility, the Home Away From Home Child Development Center. He went there for approximately six weeks. On October 21, 2019, C.M. failed to pick him up from day care before closing time. Neither she nor N.M. (the only other person authorized to pick Z.M. up) answered phone calls from the day care center. At 7:00 p.m., the day care contacted the Metropolitan Police Department (MPD). The police also tried to contact C.M. and were unable to do so. Eventually, the police transported Z.M. to the Child and Family Services Agency (CFSA). Less than two weeks later, on November 1, 2019, Z.M. again was left at the day care past its closing time and C.M. was not heard from and could not be reached. A CFSA social worker retrieved Z.M. from the day care that evening.
After the second incident, the District filed a petition alleging that Z.M. was a neglected child within the meaning of paragraphs (ii), (iii), and (iv) of D.C. Code § 16-2301(9)(A). Paragraph (ii) provides that a child is neglected if the child is "without proper parental care or control, subsistence, education as required by law, or other care or control necessary for [the child's] physical, mental, or emotional health," and the deprivation is not due to a parent's "lack of financial means." Paragraph (iii) states that a child is neglected if the "parent, guardian, or custodian is unable to discharge his or her responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental incapacity."1 Paragraph (iv) contains a narrower definition; it states that a child is a neglected child if the "parent, guardian, or custodian refuses or is unable to assume the responsibility for the child's care, control, or subsistence and the person or institution which is providing for the child states an intention to discontinue such care." The District based its neglect petition primarily on the allegation that C.M. was repeatedly unwilling or unable to assume the responsibility of caring for Z.M. after his day care center's closing time at the end of the day. At trial, the Guardian ad Litem (GAL), counsel from the Children's Law Center, supported the District's petition for a finding of neglect under both paragraphs (ii) and (iv) (but not paragraph (iii)).
At the neglect trial held on February 27, 2020, then-Magistrate Judge Seoane-Lopez heard testimony from six witnesses — the day care director, two CFSA social workers, Z.M.’s pediatrician, C.M, and N.M. The District's witnesses were Veronica Rudd, director of the Home Away from Home Child Development Center, and Ashley Jamison, CFSA social worker. The GAL called LaTrina Sheppard, CFSA social worker, and Dr. Rebecca Carlin, Z.M.’s pediatrician. C.M. called N.M. and testified on her own behalf.
Veronica Rudd, director of the Home Away From Home Child Development Center, testified that the day care operated Monday through Friday, from 7:15 a.m. until 5:45 p.m. When asked whether failure to pick up a child by closing time was a "problem," Ms. Rudd explained that it was, because "staff goes home and the building closes." During the six weeks Z.M. attended the day care, Ms. Rudd testified, C.M. typically dropped him off each morning and picked him up in the afternoons between 4:00 and 5:00 p.m. Only C.M. and her mother N.M. were on the list of persons who were preauthorized to pick the child up, and the day care would not release a child to someone not on the list absent specific parental consent for that occasion and an identification check. Ms. Rudd said C.M. did not inform the day care that anyone else would be picking up Z.M. on October 21, 2019, or November 1, 2019. On October 21, 2019, when C.M. did not arrive to pick up Z.M. by 5:45 p.m., Ms. Rudd began calling both C.M. and N.M., but could not reach either of them despite multiple attempts. At 7:00 p.m., after no one had come for the child, she called MPD, as required by the day care's policy, and they transported Z.M. to CFSA. Ten days later, on November 1, 2019, Z.M. again was left at the day care past closing time. After unsuccessfully attempting to reach C.M., Ms. Rudd released Z.M. to CFSA social worker Ashley Jamison, who took him to the agency around 6:20 p.m.
Ms. Jamison testified that she was assigned to the case when the police brought Z.M. to CFSA on October 21. Later that night, C.M. showed up at the agency to reclaim Z.M. C.M. told Ms. Jamison that she had arranged for a friend to pick up Z.M. that day because she had to go to her workplace to do something. C.M. identified the friend only as "Da-Da." When asked, C.M. could not provide Da-Da's last name, address, phone number, or the text messages C.M. claimed to have exchanged with him about his picking up Z.M. for her. C.M. said she did not confirm with Da-Da that he had picked up Z.M. She assumed he had done so until she arrived home at 9:00 p.m. and found that Z.M. was not there. Ms. Jamison observed that C.M. appeared unconcerned and "seemed to be under the influence." Ms. Jamison asked her if she was "on something," and C.M. admitted to having smoked marijuana earlier that evening. Ms. Jamison then informed C.M. that to avoid Z.M.’s removal, there needed to be a safety plan in place for him while CFSA's investigation of the situation was ongoing. C.M. agreed to having a maternal cousin, R.N., take interim custody of Z.M. beginning that night, and that she would have supervised visitation with Z.M.
On November 1, 2019, Ms. Jamison learned that R.N. had not followed the agreed-upon safety plan for Z.M. and instead had returned him to C.M. Ms. Jamison then made several calls to both C.M. and N.M. to check on Z.M. Unable to reach either of them, she next called Z.M.’s day care. The day care was relieved to hear from her. It was late in the day, the day care was closing soon, Z.M. was still there, no one had come for him, and it had been unable to reach C.M. After 6:00 p.m., Ms. Jamison went to the day care and waited approximately fifteen minutes to see if C.M. would show up. When she did not, Ms. Jamison brought Z.M. back to CFSA for the second time.
Ultimately, Ms. Jamison testified, because C.M. twice in ten days had failed to pick Z.M. up from day care or make suitable alternate arrangements, had been unresponsive to the day care and the agency, and had not exhibited concern for her child, CFSA determined a removal was in Z.M.’s best interest. On November 4, 2019, the District filed a neglect petition and Z.M. was placed in shelter care pending its adjudication.
LaTrina Sheppard, a CFSA permanency social worker, testified that during her first home visit after Z.M.’s removal, C.M. inquired about Z.M. and seemed relieved to know his foster care placement was in the District. However, when supervising visits with Z.M. and his family, Ms. Sheppard found it difficult to observe direct interaction between him and his mother due to the presence of N.M., and those positive interactions she did see "required[d] prompting." For example, she noticed C.M. "relied on her mom" to ensure Z.M. did not run out of the visit room when "he continued to open and close the door of the visit room," and there was a set of stairs nearby. Ms. Sheppard further testified that C.M. was required to attend parenting classes, undergo drug screenings, and complete an Addiction Prevention and Recovery Administration (APRA) assessment, and that while C.M. verbally reported participating in the classes and screenings, Ms. Sheppard did not receive the corresponding confirmatory documentation. She reported that in this case, "it has been difficult to get details" from C.M. and that "communication ha[d] definitely been a barrier."
Dr. Rebecca Carlin, Z.M.’s pediatrician, testified that Z.M. was small when he was born and had a serious medical condition that required medication such that her team was "trying to track his weight very carefully" and was "quite concerned about medication compliance." Though Z.M. received the medication during his early infancy, C.M. stopped giving it to Z.M. when he got older (which the pediatrician had not instructed her to do). Despite missing scheduled visits, Z.M. was up-to-date on his vaccinations.
At the time of trial, C.M. was seventeen years old. She testified...
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