N.D. McN. v. R.J.H., Sr., No. 06-FM-481.

• Decision Date: 03 September 2009
• Docket Number: No. 06-FM-481.
• Citation: 979 A.2d 1195
• Parties: N.D. McN., Appellant, v. R.J.H., SR., Appellee.
• Court: D.C. Court of Appeals

979 A.2d 1195

N.D. McN., Appellant, v. R.J.H., SR., Appellee.

No. 06-FM-481.

District of Columbia Court of Appeals.

Argued November 1, 2007.

Decided September 3, 2009.

Gregory Brown and Ronald M. Jacobs, with whom Daniel E. Toomey, Washington, DC, was on the brief, for appellant.¹

Before RUIZ, KRAMER and FISHER, Associate Judges.

RUIZ, Associate Judge:

N. McN. appeals the award of primary physical custody of her two children during the school year to the children's father appellee, R.J.H., Sr. On appeal, she argues that the trial court erred in basing its decision on an in camera interview with the children outside the presence of appellant or her counsel, and without any recording of the interview available to them or to this court. Appellant also argues that the trial court erred in finding that one of the boys was "at risk" under her care. We agree that in camera interviews, even if permitted, must be recorded. We conclude, however, that the lack of recordation did not prejudice appellant in this case. As we find no error in the trial court's findings, we affirm the child custody order.

I.

This matter came before the trial court on the parties' competing complaints for custody of their two children, V. and B., who were respectively fourteen and ten years old at the time.² After two days of trial, the judge decided to interview the boys in camera, with appellant's consent.³ The trial judge announced that she was not going to place the children under oath and that the interviews were going to be conducted privately, that is, "without attorneys present .... and without the parents present also." The trial judge did not reveal, however, that the session would not be recorded, and there was no discussion on the subject.

On March 20, 2006, approximately a month after trial, the judge issued a Custody Order, which granted joint legal custody to the parents and primary physical custody during the school year to appellee, who lives in North Carolina. The trial court relied primarily on the children's wishes, and on V.'s difficulties adjusting to his home and school while living with appellant. The court found, inter alia, that "[t]he children love both their parents, but they want their father to be their primary custodian," and that their "preference is a strong one." "In the court's interviews with the children, the Court tested their preference by asking challenging questions, and the children responded by expressing an unambivalent desire to live with [their father]."

With regard to V., the oldest child, the trial court found that

[w]hile living with his mother, however, [he] has significant problems with adjustment to his home and school. He loves his mother, but feels strongly that he does not want to live with her any more. He feels entitled to live with his father because she has told him he may do so if he chooses. He and his mother argue a lot. While there is nothing unusual about a 14-year-old arguing with a parent, their frequent arguing is another indication of his negative adjustment. His poor performance at school is particularly worrisome. He was suspended for fighting this school year—a problem that has persisted for years. This past grading period, he failed two subjects.

[V.'s] difficulties with adjustment have existed for several years and have gotten worse despite Ms. [McN.'s] responsible attempts to correct them. When a teacher called with reports of disrespect, [appellant] left her job and met the child in the school bathroom to discipline him; concerned about his school environment and behavior, she volunteers at his school once a week and attends many of his classes; when he fails a course, she enrolls him in tutoring.

Ms. [McN.'s] many attempts to set [V.] on the right course have not prevented a downward slide. At times she has concluded that she is not the parent best able to bring him into adulthood and has called [R.J.H., Sr.] to have him assume custody. On each occasion, however, her desire to be with [V.] has won out, and she has cancelled her offer of custody.

Notwithstanding Ms. [McN.'s] responsible parenting, [V.'s] poor adjustment is likely to continue if he remains with her. His academic performance has declined over the years, producing two failures in the most recent grading period; suspensions in prior years have not kept him from getting into fights or from being suspended again this year. Continued declines will predictably lead, as they have in the past, to friction at home and his desire to live elsewhere. An underachieving and angry teenager may easily be tempted by others to participate in serious wrongdoing.

In addition to the children's wishes and V.'s "difficulties with adjustment," the trial judge considered the wishes of the parents and the sincerity of their competing requests for custody; the children's ages and their interaction and interrelationship with their parents, siblings, and other persons who may emotionally or psychologically affect their best interests; the children's adjustment to their home, school, and community; the mental and physical health of everyone involved; the capacity of the parents to communicate and reach shared decisions affecting the children's welfare; the willingness of the parents to share child custody; the prior involvement of each parent in the children's lives; the potential disruption of the children's social and school life; the geographic proximity of the parental homes as it relates to the children's residential schedule; the demands of the parents' employment, and their ability to financially support a joint custody arrangement. The trial judge also considered an intrafamily offense committed by appellee in 1999 in which he assaulted appellant. See D.C.Code § 16-914 (2001) (setting out factors to be considered in making custody determination).

Appellant challenges the trial court's decision to grant primary physical custody (during the school year) to appellee based on the court's assessment of the children's preference gleaned during the unrecorded informal interviews and its finding that V. would be "at risk" if he continued to live with his mother.

II.

Appellant argues that the lack of a transcript of the judge's in camera interviews with the children renders the record insufficient for this court to conduct meaningful appellate review of the judge's decision in a case where the judge relied heavily on what she learned during the interviews in deciding to grant physical custody of the children during the school year to the father. Further, appellant argues, her due process rights were not adequately protected because she was not given the opportunity to test the accuracy of the facts related by the judge concerning the in camera interviews.

Where there has been no objection at trial to an alleged error, as here, this court will usually apply "plain error" review and reverse only upon a showing that 1) there was error, 2) the error was obvious or plain, and 3) the error "affected substantial rights." See United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If those three conditions are met, the court has discretion to notice the error and reverse if it resulted in a miscarriage of justice or seriously affected the fairness and integrity of the trial. See id. at 736, 113 S.Ct. 1770. It is not at all clear, however, that in the circumstances of this case, where the claimed error is the lack of recordation, it would be fair to require appellant to object when counsel was not present at the in camera interviews and therefore was unaware of the conditions under which the interviews were conducted. We do not need to decide the issue, however, because we conclude that even under plenary review, appellant is not entitled to reversal.

Although we have not heretofore had an opportunity to discuss in what circumstances and under what conditions a trial court may conduct in camera interviews of children who are the subject of child custody proceedings, we have addressed a related issue in the context of neglect proceedings. In In re Jam.J., 825 A.2d 902 (D.C.2003), we held that in neglect cases, trial judges have the power to protect a child from the harmful effects of being forced to testify at trial, usually by imposing reasonable conditions and restrictions on the conduct and scope of a child's examination—and in extreme situations by precluding the questioning altogether. See id. at 916. In re Jam.J set out a balancing test in which trial judges must first determine, based on concrete individualized evidence, whether testifying in court would create a risk of serious harm to the child, and, if so, then consider whether the risk can be alleviated by means short of prohibiting the questioning altogether, such as through the use of closed-circuit cameras so that the child can testify "out of the physical presence" of the parent accused of neglect. Id. at 917. After taking into consideration the risk of harm to the child and the possibility of ameliorative measures, trial judges must evaluate "the probative value of the child's testimony and the parents' concomitant need for it." Id. at 918. In re Jam.J also suggested that trial courts may explore alternatives to taking testimony from the child and, in certain circumstances, "so long as the court acts with due regard for the rights of the parent and the creation of an adequate record, [did] not rule out the possibility of assessing the importance of the child's testimony by means of an informal in camera interview." Id. (emphasis added).

Similarly, in termination of parental rights (TPR) cases, where we have expressed a strong preference, grounded in the statute, for judges "to hear directly from the children involved ... if it is at all feasible to do so," we have said that

[t]he choice between having a conversation with a child in chambers and putting that child on the witness stand is, of course, within the judge's sound...