Wilkins v. Ferguson, 05-FM-1555.

• Decision Date: 19 July 2007
• Docket Number: No. 05-FM-1556.,No. 05-FM-1555.,05-FM-1555.,05-FM-1556.
• Citation: 928 A.2d 655
• Parties: Cassaundra WILKINS, Appellant, v. Eugene FERGUSON, Appellee.
• Court: D.C. Court of Appeals

928 A.2d 655

CASSAUNDRA WILKINS, APPELLANT

v. EUGENE FERGUSON, APPELLEE.

Nos. 05-FM-1555 and 05-FM-1556

DISTRICT OF COLUMBIA COURT OF APPEALS

June 6, 2007, Argued

July 19, 2007, Decided

COUNSEL: Matthew Eisenstein, with whom James J. Sandman, Richard Kornylak, Dominique Castro, and Joan S. Meier (Domestic Violence Legal Empowerment and Appeals Project), were on the brief, for appellant.

H. A. Cramer, with whom Brian G. Gilmore, were on the brief, for appellee.

Julie Kunce Field, pro hac vice, for amici curiae Justice for Children, Leadership Council on Child Abuse & Interpersonal Violence, Break the Cycle, Ayuda, The District of Columbia Coalition Against Domestic Violence, and Women Empowered Against Violence.

JUDGES: Before REID and KRAMER, Associate Judges, and NEBEKER, Senior Judge.

OPINION BY: REID

OPINION

REID, Associate Judge: This case involves the challenge of appellant, Cassaundra Wilkins, to the trial court's order allowing her former husband and father of their biological daughter to have unsupervised visits with the child, despite the court's prior findings that he had committed an intrafamily offense against his former wife and his child, and even though no health professional recommended unsupervised visits. We are constrained to reverse the order of the trial court because it does not reflect a consideration of relevant statutory provisions and case law, and because the record evidence does not support it.

FACTUAL SUMMARY

The record reveals that Mr. Ferguson filed for divorce in March 2001, and the trial court awarded him an Absolute Divorce from Ms. Wilkins on February 20, 2002. The court determined that joint legal custody of their sole biological child, A.F., who was born in Summer 1999, was in the best interest of the child, but that Ms. Wilkins should have primary physical custody of the child, with reasonable rights of visitation by Mr. Ferguson. The court also declared: "There is compelling evidence that [Mr. Ferguson] has committed, and [Ms. Wilkins] has suffered substantial physical, verbal and psychological abuse. This pattern of abuse existed throughout the marriage and had a profound impact on [Ms. Wilkins]."

Subsequently, in response to a motion filed by Ms. Wilkins, the trial court issued a temporary protection order on August 2, 2002, suspending all visitation between Mr. Ferguson and A.F., after A.F. had complained to her mother and others that Mr. Ferguson touched her inappropriately during one of her visits with him. 1 Visitation was to be suspended until A.F.'s therapist submitted a report concerning whether visitation would be appropriate. The trial court issued a twelve-month civil protection order on October 7, 2002, after hearings and after finding that Mr. Ferguson touched A.F. inappropriately; the order continued suspension of supervised visitation.

The court ordered "a home study" or investigation in October 2002. In response to the trial court's order, Jeryl McTootle, a Domestic Relations Officer in the Child Guidance and Family Counseling Clinic of the trial court's Social Services Division, reported the results of the investigation of Ms. Wilkins, Mr. Ferguson, and A.F. on January 13, 2003. The report advised that (1) the Domestic Relations Officer was "uncomfortable proffering any recommendation regarding an unsupervised visitation arrangement" in light of the concern about possible inappropriate touching; (2) "Ms. Wilkins, seemingly a suitable custodian, appears to be providing appropriate care and a suitable home environment for [A.F.]"; (3) due to the restrictions on visitation, the officer "was unable to assess the quality of Mr. Ferguson's relationship with [his daughter]"; and (4) "the opinion of [A.F.'s] attending therapist should be a primary consideration given the allegations cited."

On June 16, 2003, Dr. Nicole M. Alford, a Clinical Forensic Psychologist and a supervisor in the trial court's Social Services Division, provided her views concerning visitation. Her conclusions were based upon her review of pertinent records as well as her observation of one visit between A.F. and Mr. Ferguson. She stated: "I would not recommend an unsupervised visitation arrangement at present. She also advised: "To protect both child and father, it would be best to consider these visits when [A.F.] is of an age and developmental level where she can verbalize any possible untoward behavior, and where she can verbalize about the specifics of her visit with her father."

The trial court entered an order on August 5, 2003, which resolved Ms. Wilkins' request for modification of the trial court's visitation order based on a report from A.F.'s therapist, Miranda S. Grant, a licensed clinical social worker and the Clinical Director of Grant-Grayton Urban Supports, Inc. Ms. Grant stated: "At this time (November 6, 2002) there is reasonable evidence that contact with father should be limited and monitored until treatment can progress further." She cautioned against unsupervised visits: "There is significant evidence to support elimination of unsupervised visits with father." 2 Ms. Wilkins asked for supervised visitation, and Mr. Ferguson advocated unsupervised visits or, in the alternative, visits supervised by his mother or another family member. The trial court recognized that its August 2003 decision was to be guided by D.C. Code § 16-1005 (c-1) which specifies that a person who has committed an intrafamily offense has the burden to show that "visitation will not endanger the child or significantly impair the child's emotional development," and that "the child and the custodial parent can be adequately protected from harm inflicted" by a person previously found to have committed an intrafamily offense. The court decided that Mr. Ferguson's visits with his daughter should resume but should be supervised by his mother, and that at first they should only be day visits but, "absent further objection by either party, the visitation shall progress to overnight visitation after 4 months of day visits."

Later, in November 2003, the trial court determined that "supervision will be necessary up until the 12/20/03 visit only"; and from January 2004 through April 9, 2004, Mr. Ferguson had unsupervised overnight visits with his daughter. Beginning around October 2003, A.F. was under the care of an associate psychotherapist, Sylvia Rosario of the Afro-American Counseling and Psychotherapy Institute. Ms. Rosario's education included an undergraduate degree in psychology, a masters degree in education, courses in counseling and psychotherapy, and at the time of her involvement with A.F., she had around thirty years of experience in counseling. Ms. Rosario provided an affidavit for the court, dated December 6, 2004, and later testified during hearings held in 2005.

Ms. Rosario's therapy notes reveal that she scheduled a session with A.F. following the child's November 2003 visit with her father. At that session, Ms. Rosario noted that A.F. "was irritable, unresponsive, and generally in an unhappy mood." A.F.'s mood "was in stark contrast to her mood during sessions that occurred before she resumed visitation with Mr. Ferguson." Thereafter, in sessions with Ms. Rosario, A.F. "voluntarily made statements [] regarding the sexual abuse that she had suffered, stating, for example, that 'my Daddy put a stick in my poo-poo.'" 3 Ms. Rosario believed that A.F. "mistakenly held her mother, [Ms.] Wilkins, responsible for forcing her to attend visitation against her will." A.F. made another accusation against Mr. Ferguson during an April 2004 session with Ms. Rosario. She said that her father "had 'put a stick in her poo-poo.'" Ms. Rosario asked A.F. to draw a picture of what happened, and also to demonstrate by using a doll. A.F. drew the picture and pointed to the doll's buttocks. Ms. Rosario "concluded that A.F. ha[d] been traumatized by sexual abuse during visitation in 2002 and between November 2003 and April 2004." The therapist "strongly urged Ms. Wilkins to take legal action to suspend Mr. Ferguson's visitation with A.F. to protect A.F. from further sexual abuse and the emotional trauma associated with visiting Mr. Ferguson under any circumstances, supervised or unsupervised, until such time when A.F.'s physical and emotional safety while visiting Mr. Ferguson can be assured." A.F. was examined at the Children's National Medical Center on April 15, 2004, and "vaginal redness" was detected. The doctor who examined A.F. noted on the "assessment/diagnosis line of the medical record: "Child disclosed that she saw Dad touching [illegible - either his or her] 'private' parts"; and "possible trauma to vaginal area."

Ms. Wilkins obtained a temporary protection order on April 22, 2004, which temporarily suspended Mr. Ferguson's visits with A.F. The court also scheduled a hearing on Ms. Wilkins' request for a civil protection order, and in May 2004, directed that a mental health evaluation of A.F. be completed "for the purpose of evaluating [A.F.'s] relationship and visitation with [her] father." In addition, the court ordered mental health evaluations of Ms. Wilkins and Mr. Ferguson "for the purpose of determining the appropriateness of [the] current visitation arrangement." 4 Mr. Ferguson filed a motion seeking to hold Ms. Wilkins in contempt of court for violation of the visitation order, and claiming that the allegations in Ms. Wilkins' petition for a civil protection order "are totally false and malicious."

Dr. Michael Gilliard, a licensed clinical psychologist employed by the Youth Forensic Services Division of the District of Columbia's Department of Mental Health, conducted a psychological evaluation of A.F. in July 2004; at that time, A.F. had reached age 4. During her session with Dr. Gilliard, A.F. described her father as "a bad daddy," stating that Mr. Ferguson "pushed me, when I was not bad." Nevertheless, "the results of the Psychological Evaluation indicated that overall, [A.F.] is...