J.L. v. K.L.L., Case No. 2007 DRB 002354
| Decision Date | 01 December 2017 |
| Docket Number | Case No. 2007 DRB 002354 |
| Parties | J.L., Plaintiff, v. K.L.L., Defendant. |
| Court | D.C. Superior Court |
This matter is scheduled to come before the Court for a pendente lite custody hearing on December 6, 2017. On October 18, 2017, Plaintiff J.L. issued a subpoena to Maria Copeland, a social worker employed by the D.C. Child and Family Services Agency (hereinafter "CFSA"), to testify at the hearing. On October 25, 2017, the District of Columbia filed a motion to quash the subpoena. J.L. filed an opposition to the motion to quash on November 8, 2017. For the reasons that follow, the Court will deny the government's motion.
This case began on August 15, 2007, when J.L. filed a complaint for divorce and custody against Defendant K.L.L. On February 1, 2008, the parties reached a custody agreement whereby their older daughter would reside primarily with J.L. and the younger daughter would reside primarily with K.L.L. The Court subsequently incorporated that agreement into the parties' divorce judgment. See Findings of Fact, Conclusions of Law and Judgment of Absolute Divorce (Apr. 18, 2008).
On October 4, 2017, J.L. filed an Emergency Motion to Modify Custody of the parties' younger child, K.L. In his motion, J.L. alleged that on Friday, September 29, an employee of CFSA's Child Protective Services (CPS) division had contacted him "regarding my daughter being abused while in the care of" K.L.L. Pl.'s Em. Mot. to Modify Custody at 2 (Oct. 4, 2017). J.L. indicated that he had met with the CPS social worker on October 3 regarding the allegations, which include, but are apparently not limited to, emotional abuse leading the child to engage in self-harm. J.L.'s motion indicated that the child was staying with him temporarily and that he "was advised by the social worker to request custody of my daughter." Id.
The Court held expedited hearings on J.L.'s motion on October 13 and October 18, 2017. At the October 18 hearing, both parties presented "intervention plans" prepared by CFSA. J.L., through counsel, proffered his understanding that CFSA had been unable to "safety plan" with K.L.L. because K.L.L. refused to participate adequately in the process. J.L. also represented that the CFSA investigation had begun based on reports of both physical and mental abuse and that the child was currently in therapy. For her part, K.L.L. testified that she refused to sign the CFSA safety plan because it included a statement that she had harmed her child, a fact she disputes. She further testified that CFSA had conducted a home visit and that she was in contact with a supervisor about the agency's ongoing investigation.
The Court scheduled a pendente lite custody hearing for October 25, 2017, and in the meantime issued an order granting J.L. temporary sole legal and physical custody. In preparation for the pendente lite hearing, J.L. subpoenaed M.C., the CFSA social worker who had been working with the family, to appear and provide testimony. The District of Columbia filed a motion to quash the subpoena, arguing that CFSA's statutory confidentiality provisions precluded its employees from providing testimony in custody cases. See District of Columbia'sMot. to Quash Pl.'s Subpoena for Live Testimony from the Child and Family Services Agency (hereinafter "Mot. to Quash") at 3-4 (Oct. 25, 2017).
The day before the hearing, K.L.L. filed a request for a continuance on the ground that she would be traveling out of town due to a death in the family. The Court continued the hearing to December 6, 2017; maintained the temporary order granting sole custody to J.L.; and ordered the parties to brief the question of whether the Court should enforce the subpoena directed to M.C.
The government asks the Court to quash J.L.'s subpoena because it "requires disclosure of privileged or other protected matter and no exception or waiver applies." Mot. to Quash at 3 . In support of this claim, the government relies on two statutory provisions: D.C. Code § 4-1303.06(a), relating to CFSA's investigatory powers and duties, and D.C. Code § 4-1405, which imposes confidentiality restrictions on "child-placing agencies." The Court finds that neither provision supports quashing the subpoena in this case. The Court further rejects the government's policy-based argument that compelling its social workers to testify will undermine CFSA's ability to perform its job.
This statutory provision provides as follows:
J.L. argues that the subpoena in this case falls within the first, second, and third exceptions to the confidentiality requirement. The Court agrees that the requested disclosure here is for a "purpose relating to the identification of abuse and neglect," and therefore that § 4-1303.06(a) does not prohibit M.C. from testifying in this case. The Court further finds that disclosure by CFSA will enable the Court better to identify service needs and to require treatment or services for the family if appropriate.1
As J.L. points out, he filed this motion to modify custody at the urging of CFSA personnel, who contacted him following reports of suspected abuse by K.L.L. See Opp'n to Mot. to Quash at 6 (Nov. 8, 2017). To rule on J.L.'s motion, the Court must determine whether abuse has in fact taken place; such a finding both would constitute a substantial and material change in circumstances - the prerequisite for a change in custody - and would trigger a presumption against even joint custody or visitation for K.L.L. See D.C. Code § 16-914(a)(2), (f); A.C. v. N.W., 160 A.3d 509, 520 (D.C. 2017) ().
The government nonetheless argues that the "identification of abuse or neglect" exception is irrelevant here because it "only applies when the primary purpose of the disclosure is the identification of abuse or neglect." Reply to Opp'n to Mot. to Quash at 2 (Nov. 15, 2017) (emphasis in original). The government offers no support for this interpretation of the statute.2 Nor does it explain why - even if that were the correct reading - identification of abuse or neglect is not the "primary purpose" in this case. The government makes the somewhat circular argument that "the ultimate issue in this case is not whether the minor child has suffered abuse, but who should have custody of the child," id. - entirely glossing over the central factual question in this custody dispute, which is whether K.L.L. has abused her daughter. As noted above, the custody statute explicitly requires the Court to consider whether a parent has engaged in abuse or neglect. See D.C. Code § 16-914(a)(2). A finding of abuse triggers a presumption against joint custody, and the Court may order visitation with the offending parent only if it"finds that the child and custodial parent can be adequately protected from harm inflicted by the other party . . . [and] that visitation will not endanger the child or significantly impair the child's emotional development." Id. § 16-914(a-1). To argue that the ultimate issue here is simply "custody," without accounting for the specific factual circumstances of the case, ignores the Court's statutory obligation to determine whether the minor child has suffered abuse.
The government's reading of § 4-1303.06(a) also is not consistent with the role CFSA plays in neglect matters, which also concern who should have "custody" of a child. Indeed, once a child has been adjudicated neglected, the ensuing proceedings largely involve whether the parent(s) should regain or retain custody and under what circumstances. See id. § 16-2320. At that point, identification of abuse or neglect is no longer the "primary purpose" of the agency's role in the case. Rather, CFSA remains involved to provide services to all parties involved and to facilitate reunification or, if appropriate, guardianship or adoption by another family. See In re TA.L., 149 A.3d 1060, 1078-79 (D.C. 2016) (). The agency's participation in court goes well beyond "identifying abuse or neglect"; following the adjudication, CFSA's disclosures also address, among other things, the parent's cooperation in the process; whether and under what circumstances visitation has taken place; and whether the parent has made progress in ameliorating the conditions that led to the neglect finding. See D.C. Code § 16-2323(d). The agency's obligations in this regard belie CFSA's contention here that it may disclose information only when the "primary purpose" of the hearing is identifying abuse or neglect.
Finally, the Court also finds that this case falls within the exceptions to confidentiality relating to identifying and securing services and treatment. See id. § 4-1303.06(a)(2), (3). If, in fact, K.L.L. has abused her...
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