In re B.C. C.P.

• Court: District of Columbia Court of Appeals
• Decided: August 19, 2021
• Docket: 19-FS-984
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-FS-984

IN RE B.C.; C.P., APPELLANT.

Appeal from the Superior Court of the District of Columbia (NEG-9-19)

(Hon. Janet Albert, Magistrate Judge) (Hon. Darlene Soltys, Associate Judge)

(Argued June 16, 2021 Decided August 19, 2021)

Allison K. Bauer was on the brief for appellant.

Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, Stacy L. Anderson, Senior Assistant Attorney General, and David Stark, Assistant Attorney General, were on the brief for appellee.

Before THOMPSON and EASTERLY, Associate Judges, and OKUN, Associate Judge, Superior Court of the District of Columbia. *

EASTERLY, Associate Judge: A determination that a parent is unable to

discharge their responsibilities to care for their child due to mental incapacity under

* Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.). 2

D.C. Code § 16-2301(9)(A)(iii) (2012 Repl. & 2021 Supp.) is momentous. It can

have an adverse impact on the parent, both legally and reputationally. For this

reason, even if a parent opts not to challenge other grounds of neglect under D.C.

Code § 16-2301(9)(A), a parent will often still be able to demonstrate that they have

standing to seek review of a mental incapacity determination. Further, a mental

incapacity neglect determination must be supported by sufficient evidence, which

may well necessitate a presentation of expert testimony. This case illustrates these

principles.

I. Facts and Procedural History

In 2018, the District’s Child and Family Services Agency opened an

investigation into then eight-year-old B.C.’s care by his mother, C.P. CFSA

subsequently filed neglect charges pursuant to D.C. Code § 16-2301(9)(A)(ii)

(defining a neglected child to include one “who is without proper parental care or

control, subsistence, education as required by law, or other care or control necessary

for his or her physical, mental, or emotional health, and the deprivation is not due to

the lack of financial means of his or her parent”), and D.C. Code § 16-2301(9)(A)(iii)

(defining a neglected child to include one “whose parent . . . is unable to discharge 3

his or her responsibilities to and for the child because of incarceration,

hospitalization, or other physical or mental incapacity”).

A. The Government’s Theories of Neglect and the Evidence at Trial

At the 2019 neglect trial before a magistrate judge, the government argued

that B.C. was a neglected child under D.C. Code § 16-2301(9)(A)(ii) because “his

basic educational needs [were] not being met.” The government presented evidence

that B.C. had been enrolled and removed from three different schools in the fall of

2018, that he had attended school at most a handful of days during that timeframe,

that C.P. had eventually sought authorization/permission to homeschool him but had

not received the waiver she needed as a non-high school graduate, and that B.C.’s

current academic performance was far below grade level.

Separately, the government argued that B.C. was a neglected child under D.C.

Code § 16-2301(9)(A)(iii) because C.P.’s mental incapacity rendered her unable to

discharge her parental responsibilities. The government’s theory was that C.P. had

previously exhibited paranoid behavior and delusional thinking, she had sought

unnecessary medical treatment for herself, and she was now doing the same for B.C.

To this last point, the government submitted medical records for B.C., documenting

C.P.’s numerous efforts to get B.C. care, often in relation to swelling on the right 4

side of his face. These records showed, however, that medical professionals had

observed the swelling, diagnosed an abscessed tooth, and recommended soft tissue

excision as treatment.

The government did not present any recent psychiatric records or expert

testimony to substantiate its allegation that C.P.’s mental incapacity led her to seek

unnecessary treatment for B.C. Instead, the government presented a variety of

medical records from (1) Jordan House, a psychiatric facility where C.P. received

treatment for three days in 2011 for depression and suicidal ideation before checking

herself out against therapeutic advice; (2) Core Health and Wellness Center, a

“primary care, alternative medicine and holistic wellness services” facility, 2

documenting numerous appointments for a range of reported ailments in 2012–16

which indicated that she may have had ongoing mental health issues, 3 but only a

handful of appointments in 2017 and 2018 for ailments which were verified and

treated; and (3) United Medical Center, spanning 2011–19, documenting

2 About us, Core Health and Wellness Center, https://www.corehealthdc.com/about-us; https://perma.cc/KZZ3-VHVJ (last visited August 10, 2021). 3 A 2014 note stated that C.P. had requested a heart transplant. A 2016 note stated that she had claimed to have untreated cancer. And a 2016 note stated that she “sees psychiatry but has remarked to the other providers [at Core Health and Wellness Center] that she does not take her psychiatric medicines.” 5

appointments in 2017–19 for verified and treated ailments and minor injuries (e.g.,

a recurring sore throat, a urinary tract infection, and a bruised finger).

The government also presented testimony regarding C.P.’s mental health from

three CFSA employees who had interacted with C.P. 4 Narendra Date, the social

worker assigned to B.C.’s case in 2018, testified that he met with C.P. in person five

times over the course of that year and that C.P. was generally resistant to his effort

to investigate her case and would not let him talk to B.C. alone. Mr. Date stated that

“there was an indication that [C.P.] had unaddressed mental health needs.” When

asked to elaborate on the behavior that led him to believe C.P. had unaddressed

mental health needs, he stated that she “mistrust[ed] the people around here” and

had “ideations about herself being seriously ill . . . [and] about the child being

seriously ill without any documentations to back it up.”

4 Other government witnesses testified that they had contact with C.P., but they provided no information related to C.P.’s mental health or capacity: (1) Stephanie Thomas, the homeschool coordinator for the Office of the State Superintendent of Education, testified about her communications with C.P. in the fall of 2018 regarding approval of homeschooling for B.C., and (2) Nikki Barnes, B.C.’s teacher, testified that she had had a phone call and an email exchange with C.P., but she was not asked to detail those conversations. 6

Edward Rodrigues, the social worker assigned to B.C.’s case in January 2019

after B.C. was removed from C.P.’s care, testified that he had talked on the phone

and texted with C.P. weekly but met with her only once to supervise a visit with B.C.

He noted that her texts could sometimes “go[] onto a tangent” and that she had called

the police on him twice. 5 He expressed concern about her “lack of awareness of her

mental health needs” but also stated that “I don’t know if it’s — we have an

understanding of where she is at mentally right now.” When asked to explain why

he thought she had current mental health needs, he testified that it was “[j]ust the

long text messages that are . . . kind of incoherent; the ongoing lack of trust with

anyone, particularly me,” and “[t]he idea that she still sees . . . a medical problem,

or dental problems despite the advice of the doctor.” But he also testified that their

relationship had improved over time, that she had become “more open” to working

with the agency, and that she was working with a peer mentor. When asked to

connect his concerns about C.P.’s mental health to her parenting, he testified that “I

can’t say because I’ve only witnessed one visit.”

Lastly, Shanay Tymus, a registered nurse employed by CFSA, testified about

accompanying Mr. Date on a home visit to C.P.’s house in April 2018. At that visit,

5 He provided no detail about these incidents. 7

she and Mr. Date tried to get more information about B.C.’s health history, but C.P.

refused to provide them any documents or sign a release form. Ms. Tymus testified

that C.P. was “frustrated, really defensive, kind of like paranoid, but she wasn’t

confrontational or anything.”

C.P. testified on her own behalf. Regarding B.C.’s education, she explained

that, with authorization and instructions from OSSE, she had homeschooled him in

2017 (when B.C. would have been in first grade) because “he improves with working

one-on-one.” She testified that she used “many” curriculums from the D.C. Library,

but she was not asked to identify any one of them by name. She testified that, for

reading, she used flash cards to teach B.C. sight words; for math, she worked with

him on addition and subtraction (she noted that he struggled with double digit

numbers); for science, she had him draw pictures of “plants, and things like that.”

Over the summer of 2018, she enrolled him in Beers Elementary School, but she

explained that he never attended because it was 30 minutes away and she wanted to

enroll him at a school closer to home. She then enrolled B.C. at Martin Luther King,

Jr. Elementary School, but when he got a spot at Ingenuity Prep, she decided to enroll

him there because she wanted him to “go to a prep school [instead of a] public

school.” She took him out of Ingenuity Prep after a few weeks because of bullying

concerns, but she explained that she got in contact with OSSE to get permission to 8

homeschool B.C. again. She acknowledged that her “pattern” of enrolling and

removing B.C. from various schools did not reflect “the best choices.” She testified

that she was learning from her mistakes. She vaguely testified that in the fall of 2018

she taught B.C. in “all” subjects, and she documented her instruction, albeit

incompletely, in the required portfolio. She acknowledged that B.C. was behind

academically and that his Individualized Education Plan from kindergarten had

expired, but she testified that she had been trying to update it with Ingenuity Prep.

Regarding her mental health, C.P. admitted that she had received treatment in

2011–12 for postpartum depression but stated that she had no current diagnoses.

Regarding B.C.’s medical care, she testified that his facial swelling was documented

and diagnosed as the reaction to an impacted molar, and she pushed back against the

notion that “[she] was just paranoid.” She explained that B.C. was scheduled to have

a surgical procedure to address his impacted molar in January, but he was removed

from her care before the procedure could be performed.

B. The Neglect Determinations by the Magistrate Judge and the Associate Judge

After the government gave its initial closing argument, the magistrate judge

indicated for the first time that she was contemplating whether B.C. was neglected 9

not only based on the government’s theories that (1) C.P. had failed to ensure B.C.

was getting adequate educational support, and (2) C.P.’s mental incapacity had

caused her to seek out unnecessary medical care for B.C., but also based on a theory

that the government had not argued, namely, (3) C.P.’s alleged mental incapacity

had affected her decisionmaking regarding B.C.’s education. 6

Alluding to the need to prove that a parent’s mental incapacity has a nexus to

a child’s neglect, the magistrate judge asked the government during its rebuttal,

“what’s the nexus for both the school and the medical?” The government responded

only “as it relates to the medical” by explaining that “there’s a nexus between her

mental health, her paranoia and her fixation that something is wrong with B.[C.]”

The magistrate judge subsequently asked again, “what do you say the nexus is on

the mental health on the decision making around schooling?” Obliged to address

the court’s question, the government focused on the fact that B.C. was not getting

the educational support he needed but proffered no link to C.P.’s mental health.

Indeed, highlighting C.P.’s movement of B.C. from school to school, the counsel for

the government acknowledged that he was “not sure of” “[t]he reason” for her

6 The magistrate judge appeared to have adopted this theory from the guardian ad litem, who argued in opening and closing that C.P.’s mental incapacity adversely impacted her decisionmaking regarding B.C.’s medical care and his education. 10

actions. Even so, the government ended the discussion by conclusorily arguing that

B.C. was “unable to get what he needs educationally in [C.P.’s] care because [of]

the mental health and the medical issue.”

In a written order, the magistrate judge determined that the government had

carried its burden to prove educational neglect, D.C. Code § 16-2301(9)(A)(ii), but

not neglect by reason of mental incapacity under D.C. Code § 16-2301(9)(A)(iii)

insofar as that neglect related to C.P.’s efforts to seek out unnecessary medical care

for B.C. As to the latter theory of neglect, the magistrate judge found that “the

mother has some level of paranoia but the record does not establish that the paranoia

rises to the level of being the cause of the number o[f] appointments/providers

consulted” regarding the swelling on the side of B.C.’s face. The magistrate judge

highlighted the lack of “live testimony” regarding B.C.’s medical care, specifically

the failure of the government to “call the providers as witnesses or to present the

entirety of [B.C.’s] medical records to a medical expert . . . and have that expert

testify.” While acknowledging that the number of appointments made by C.P. to

address this issue seemed “excessive,” the magistrate judge observed that “the

medical records are replete with conclusions drawn by the medical/dental

professional about the mother’s understanding, motivation, actions, etc. that cannot

be properly cross[-]examined” and it was “essential under the circumstances to have 11

at least one expert to be able to opine on the mother’s actions being tantamount to

medical neglect.”

Nevertheless, the magistrate judge concluded that B.C. was neglected under

D.C. Code § 16-2301(9)(A)(iii) based on the third theory of neglect that she had

raised, namely the theory that B.C. was neglected because of C.P.’s mental

incapacity as reflected in her poor educational decisionmaking. Reviewing the

evidence of C.P.’s mental incapacity, the magistrate judge no longer expressed any

concern about the absence of expert testimony. Appearing to rely on the medical

records as well as the testimony of lay witnesses, the magistrate judge found that

C.P. “has a diagnosis of post-partum depression and struggles with other mental

health issues related to anxiety, paranoia, and an inability to trust others.” The

magistrate judge also found that C.P.’s mental health issues had a nexus to her

educational decisions for B.C. The magistrate judge connected C.P.’s “lack of trust

in others and inability to have [B.C.] outside her sight” both to the fact that, “when

he attended school, [he] would regularly arrive late or was picked up early,” and to

C.P.’s decision to homeschool B.C. The magistrate judge also noted that C.P.

“admitted to making poor decisions as it relates to” B.C.’s education. Finally, the

court noted C.P.’s “lack of insight” regarding B.C.’s “multiple school placements” 12

and whether and how to homeschool him in light of his needs and her lack of a high

school diploma.

C.P. sought review by an associate judge and raised sufficiency challenges to

both of the magistrate judge’s neglect determinations. The associate judge

determined that the educational neglect determination under D.C. Code § 16-

2301(9)(A)(ii) was amply supported by B.C.’s extended school absences and C.P.’s

inadequate homeschooling. The associate judge likewise determined that the mental

incapacity neglect determination under D.C. Code § 16-2301(9)(A)(iii) was

supported by sufficient evidence. The associate judge rejected C.P.’s argument that

expert testimony addressing her mental health should have been presented, citing

decisions of this court for the proposition that mental incapacity under the neglect

statute “need not be a diagnosable mental illness” and need not be established by

expert testimony. The associate judge concluded that recognizing and understanding

C.P.’s “obsession with imaginary medical conditions which [B.C.] and she do not

have, paranoia, anxiety, and a severe lack of trust” were “within the realm of

common knowledge.” The associate judge further concluded that there was

sufficient evidence that C.P.’s mental incapacity led to B.C.’s deficient education.

The associate judge attributed B.C.’s absence from school to his numerous medical

appointments; opined that C.P.’s “demonstrated paranoia” and “lack-of-trust in 13

leaving [B.C.] in the care of third parties . . . were the reasons that [C.P.] opted to

home-school [B.C.]”; and determined that C.P.’s “mental incapacity (which

precluded her from recognizing her own inadequacies as a home schooling teacher)

interfered with her ability to adequately provide homeschooling instruction to

[B.C.]” This appeal followed.

II. Analysis

A. Standing

Before we consider the merits of C.P.’s sufficiency challenge, we must

address the government’s challenge to her standing to pursue this appeal. See D.C.

Appleseed Ctr. for Law & Justice, Inc. v. District of Columbia Dep’t of Ins., Sec., &

Banking, 54 A.3d 1188, 1199 (D.C. 2012) (“Standing is a threshold jurisdictional

question which must be addressed prior to and independent of the merits of a party’s

claims.” (internal quotation marks omitted)). In her brief to this court, C.P. does not

challenge the educational neglect determination pursuant to D.C. Code § 16-

2301(9)(A)(ii); she only challenges the mental incapacity neglect determination

pursuant to D.C. Code § 16-2301(9)(A)(iii). Because B.C. will still be adjudicated

neglected regardless of the outcome of this appeal, the government argues that C.P.

lacks standing to be heard by this court regarding any errors in the associate judge’s 14

order affirming the magistrate judge’s findings of fact and conclusions of law that

she neglected B.C. We cannot agree.

Generally, to establish standing, a litigant must have “a personal stake in the

outcome of the controversy.” Equal Rights Ctr. v. Props. Int’l, 110 A.3d 599, 603

(D.C. 2015) (internal quotation marks omitted). The litigant must claim “an actual

or imminent, concrete and particularized, invasion of a legally protected interest”

that can be “‘fairly trace[d]’ to [the opposing party’s] challenged actions” and that

can “be redressed by a favorable decision.” Id. (ellipsis omitted) (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)); see also UMC Dev., LLC v.

District of Columbia, 120 A.3d 37, 42 (D.C. 2015) (explaining that this court,

although created under Article I, “generally adhere[s] to the case and controversy

requirement of Article III” of the Constitution). We have no trouble concluding that

C.P. has the requisite personal stake in the outcome of this appeal.

Beyond the injury of having a child removed from their care, a parent whose

child has been deemed neglected is adversely impacted by the neglect determination

itself, which “constitutes a permanent, and significant, stigma.” In re E.R., 649 A.2d

10, 12 (D.C. 1994) (internal quotation marks omitted). The impact on a parent’s

reputational interest alone gives them standing to challenge a determination of 15

neglect. Cf. id. at 13 (holding that the mother’s appeal of a neglect determination

was not moot even though her child had left the country and did not intend to return);

In re G.H., 797 A.2d 679, 683 (D.C. 2002) (in a neglect appeal, holding that the

mother’s boyfriend had “a reputational interest sufficient to provide him with

standing to challenge” the determination that he had physically abused a child, even

though he was “in no position to complain of the disposition of the children in the

absence of an appeal by the mother”).

The government argues that it is “purely speculative” for C.P. to argue that

she will suffer reputational harm from the neglect determination under § 16-

2301(9)(A)(iii) that is separate and distinct from the harm of a neglect determination

under § 16-2301(9)(A)(ii). But the determination that a parent is so mentally

incapacitated—i.e., that they have some sort of mental health condition or cognitive

impairment, see infra II.B.1. (discussing the definition of this term)—that the

incapacity has caused the child to be neglected impinges on a parent’s reputation in

a way that is distinct from a determination that a parent has failed to meet the

government’s educational standards for their child. See Bruce J. Winick, The Side

Effects of Incompetency Labeling and the Implications for Mental Health Law, 1

PSYCHOL. PUB. POL’Y & L. 6, 8 (1995) (explaining that the adverse effects of a

mental incompetence label applied by courts and administrative bodies include not 16

only legal consequences but also “serious social disadvantages, adversely affecting

the way others regard and treat” those who are so labeled); Justin L. Joffe, Student

Note, Don’t Call Me Crazy: A Survey of America’s Mental Health System, 91 CHI.-

KENT L. REV. 1145, 1166–68 (2016) (explaining that “the stigma surrounding mental

illness stubbornly persists,” notwithstanding advances in understanding of the

causes and treatments of mental illness). The distinct impact of a mental incapacity

neglect determination is sufficient to give C.P. standing to challenge this

determination on appeal. Cf. In re A.B., 999 A.2d 36, 44 n.25 (D.C. 2010) (rejecting

the argument that, because it was affirming neglect as to one child, “any additional

injury to [the mother’s] reputation flowing from the neglect findings with respect to

her other children is too negligible to support her standing to contest them”).

In re Z.C., 813 A.2d 199 (D.C. 2002), cited by the government, is factually

inapposite and does not support a different conclusion. In that case, the mother, who

had repeatedly and severely beaten her son, was convicted of assaulting him with a

dangerous weapon and sentenced to a term of imprisonment. She was then deemed

to have neglected him on multiple grounds, including that she was unable to

discharge her responsibilities as a parent “because of incarceration.” Id. at 200 n.3

(quoting D.C. Code § 16-2301(9)(C) (2001)). The mother sought review of only

that incarceration neglect determination, and this court determined that she lacked 17

standing to appeal. Id. at 202. Distinguishing cases like In re E.R. and In re G.H.,

where we had concluded the appellants had standing based on the adverse impact a

neglect determination had on their reputational interests, we concluded in In re Z.C.

that “[t]he mother’s [ADW] conviction . . . is a permanent stigma that would survive

any relief that she could obtain through this appeal.” 813 A.2d at 203. Unlike in In

re Z.C., in this case there is no other independent adjudication of the basis for the

challenged neglect (C.P.’s alleged mental incapacity) that would negate the

possibility of additional, appreciable reputational harm and preclude any meaningful

relief if that neglect determination were reversed.

In any event, the harm from the mental incapacity neglect determination that

C.P. seeks to challenge is not just reputational and not at all speculative. Once a

child has been deemed neglected and removed from the parent’s custody, the court

must regularly conduct permanency planning hearings to determine inter alia

“whether, and if so when, the child will be returned to the parent(s).” In re Ta.L.,

149 A.3d 1060, 1077 (D.C. 2016) (en banc) (citing D.C. Code § 16-2323(c)(2) (2012

Repl.). A “primary focus” of a permanency planning hearing is “on the parents’

efforts to ameliorate the conditions that led to the neglect and the District’s efforts

to assist them in achieving those goals.” Id. at 1078 (emphasis added). Accordingly,

a particular determination of neglect, such as a mental incapacity neglect 18

determination under § 16-2301(9)(A)(iii), is likely to have a direct impact on the

parent’s ability to regain custody of their children. Cf. In re A.B., 999 A.2d at 44

n.25 (concluding that the mother’s challenge to neglect determinations was not moot

even though the children had been returned to her because the neglect determinations

“might indirectly affect [her] status in potential future proceedings” (internal

quotation marks omitted)).

The government dismisses these collateral legal consequences, however. It

asserts that “there is no reason to think that permanency planning for B.C. will be

adversely impacted by” the § 16-2301(9)(A)(iii) neglect determination “because the

Superior Court Family Division does not need an adjudication [thereunder] in order

to remediate neglect under [§ 16-2301(9)(A)(ii)] where the court believes the neglect

under (ii) is predicated on concerns of a parent’s mental health.” To the extent the

government is arguing that trial courts may act on “belief” instead of substantiated

facts, we disagree. Absent a determination that a parent’s mental incapacity led to

their child’s neglect, the government would have to present some evidence at a

permanency planning hearing that mental health or incapacity was impeding

reunification in order to convince the court to order remedial measures. See In re

Z.W., 214 A.3d 1023, 1036–37 (D.C. 2019) (trial court’s permanency goal decisions

“must be based upon and drawn from a firm factual foundation” (internal quotation 19

marks omitted)). In contrast, if a mental incapacity neglect determination pursuant

to § 16-2301(9)(A)(iii) has been made, the court would necessarily incorporate an

assessment of the parent’s mental health or incapacity into its permanency planning

calculus. See § 16-2323(b)(4). Accordingly, the existence of the mental incapacity

determination is a cognizable harm to C.P.

The government separately argues that even if C.P. can show the requisite

injury for standing, there is another reason to conclude that C.P. cannot pursue this

appeal, namely that “this [c]ourt reviews judgments and not merely findings.” As

support for this proposition, the government once again relies on this court’s

decision in In re Z.C. We acknowledge that, after concluding that the mother in that

case did not have standing to pursue an appeal, this court went on to observe in its

final paragraph that the appeal was “subject to dismissal for a slightly different, but

related, reason.” In re Z.C., 813 A.2d at 203. We explained that “the case [was]

reminiscent of Thoubboron v. Ford Motor Co., 624 A.2d 1210 (D.C. 1993),” where

we had observed that “this court reviews judgments, not opinions” and declined the

appellant’s request to “strike . . . dictum” from a trial court’s order. In re Z.C., 813

A.2d at 203 (brackets and internal quotation marks omitted). We then said in In re

Z.C. that “this case does not differ in principle from the issue addressed in the

Thoubboron footnote.” 813 A.2d at 203 (emphasis added). 20

For multiple reasons, we disagree that In re Z.C. categorically bars appellate

review of fewer than all neglect determinations made in a case. First, if this court in

In re Z.C. had meant to impose such a categorical bar, the preceding standing

analysis that serves as the foundation for the court’s primary holding would have

been entirely unnecessary. See 813 A.2d at 203 (discussing the lack of reputational

harm and concluding that “[a]ccordingly, the mother lacks standing to prosecute her

appeal”); see also In re M.L., 28 A.3d 520, 531 n.22 (D.C. 2011) (relying on In re

Z.C. for the principle that an appellant who cannot secure “any remedial benefit from

a decision by this court” lacks standing to bring an appeal (internal quotation marks

omitted)). Second and relatedly, any such categorical bar would have been

irreconcilable with the binding precedent cited in In re Z.C., authorizing neglect

appeals to be litigated even though they would not alter the bottom-line adjudication

of neglect. See In re G.H., 797 A.2d at 683, 686 (allowing mother’s boyfriend to

pursue his appeal, even though it could not affect the neglect adjudication, and

ultimately concluding that the evidence was insufficient to support the finding that

the boyfriend had placed two of the children in danger, but leaving the disposition

order undisturbed). Third, it is simply incorrect that this court only reviews

“judgments.” We regularly review component rulings within judgments, and when

we conclude that any errors were harmless, we do not simply dismiss these appeals.

Fourth and finally, it would make little sense to force appellants to frivolously 21

challenge every neglect determination just to be able to claim standing to challenge

one that can cause real injury under a traditional standing analysis. In the absence

of any subsequent decision relying on this language in the manner the government

advocates, we thus interpret In re Z.C. narrowly as a decision where our discussion

of appealability was driven by our assessment that the mother—who was not

challenging the determination either that she was in prison or that she was unable to

personally care for her children as a result—was, like the litigant in Thoubboron,

seeking review of inconsequential facts. See In re Z.C., 813 A.2d at 200 n.4.

For all of these reasons, we hold that C.P. has standing to challenge on appeal

the determination of neglect pursuant to D.C. § 16-2301(9)(A)(iii).

B. Sufficiency of the Evidence

“In a child neglect proceeding, the [government] has the burden of proving by

a preponderance of the evidence that a child is neglected . . . .” In re E.H., 718 A.2d

162, 168 (D.C. 1998). On appeal, “[w]e will reverse a finding of neglect only if it

is plainly wrong or without evidence to support it, and only after viewing the

evidence in the light most favorable to the court’s ruling.” In re Ta.C., 237 A.3d

114, 120 (D.C. 2020) (internal quotation marks omitted). “But consistent with that

deference, we must ensure that a finding of neglect embodies a correct understanding 22

of the relevant statutory terms. The proper construction of the neglect statute is a

legal question, as to which our review is not deferential, but de novo.” Id. (brackets,

footnote, and internal quotation marks omitted). In addition, as we explained in In

re S.L.G., 110 A.3d 1275 (D.C. 2015), although our review is of “the order of the

associate judge, who reviewed the magistrate judge’s order in this case for errors of

law, abuse of discretion, or clear lack of evidentiary support,” we may still “look to

the findings and conclusions of the fact finder on which that ruling is based.” Id. at

1285 (internal quotation marks omitted).

In order to make out a case of neglect under D.C. Code § 16-2301(9)(A)(iii),

the government must prove both that a parent has a mental incapacity and that the

mental incapacity has caused their “inability to provide proper parental care,” i.e.,

that there is a nexus between the mental incapacity and their lack of care for the

child. In re P.B., 54 A.3d 660, 667 (D.C. 2012) (quoting In re N.P., 882 A.2d 241,

251 (D.C. 2005)). Here, C.P. argues that the government failed to carry its burden

for either element. We examine each in turn. 23

1. Mental incapacity

While acknowledging that “she has a history of mental health issues and

hospitalization in 2010 through 2012” after B.C.’s birth, C.P. argues that the

evidence was insufficient for the Superior Court to find that she suffered from a

mental incapacity at the time of the alleged neglect in 2018–19, particularly in the

absence of any expert testimony. In essence, she argues that the mental health

records from six to eight years earlier presented by the government had little bearing

on her mental state in 2018–19 and that the “observations made by Mr. Date, Ms.

Tymus, and Mr. Rodrigues,” none of whom are licensed mental health professionals,

were too limited to support a determination that she was mentally incapacitated at

the time of the alleged neglect.

Before we assess the sufficiency of the evidence of mental incapacity

presented at the neglect trial in this case, we must address two predicate subjects,

namely, the meaning of “mental incapacity” and the manner in which it may be

proved. The term “mental incapacity” is not defined in the neglect statute, and the

closest this court has come to discerning the definition of the term is to reject efforts

to interpret it too narrowly. See, e.g. In re N.P., 882 A.2d at 251 (concluding that

the government’s expert testimony diagnosing the mother with battered woman 24

syndrome, “severe dependency,” and low-level intellectual functioning was

sufficient evidence of “mental incapacity”); In re P.B., 54 A.3d at 664–65, 667

(concluding that the government’s evidence of the mother’s mental incapacity was

sufficient where (1) the government’s expert testified that the mother suffered from

some sort of mood disorder, (2) the mother’s expert agreed that testimony about the

mother’s behavior, if credited, indicated she “might be suffering from some kind of

psychotic condition,” and (3) “numerous witnesses . . . described [the mother’s]

paranoid beliefs, delusional thinking, and seclusion” (internal quotation marks

omitted)). Thus, we have yet to discern a comprehensive definition for this statutory

term.

“We start, as we must, with the language of the statute.” Tippett v. Daly, 10

A.3d 1123, 1126 (D.C. 2010) (internal quotation marks omitted). In examining this

language, “it is axiomatic that the words . . . should be construed according to their

ordinary sense and with the meaning commonly attributed to them.” Id. (internal

quotation marks omitted); see also id. at 1127 (endorsing “look[ing] to dictionary

definitions to determine the ordinary meaning”). The ordinary meaning of “mental”

is “of or relating to the mind,” Mental, Merriam-Webster’s Collegiate Dictionary

(11th ed. 2003); and the ordinary meaning of “incapacity” is the “quality or state of

being incapable,” Incapacity, Merriam-Webster’s Collegiate Dictionary, with 25

“incapable” meaning “lacking capacity, ability, or qualification for the purpose or

end in view,” Incapable, Merriam-Webster’s Collegiate Dictionary. Reading these

words together makes readily apparent that “mental incapacity” encompasses, but is

not limited to, debilitating mental illness. See In re N.P., 882 A.2d at 251

(incorporating an assessment of mother’s cognitive ability). The cause of mental

incapacity encompasses a range of psychiatric, psychological, or physiological

conditions that may adversely impact a parent’s thought processes. But those

conditions must be related to mental functioning, and they must be “incapacitating,”

i.e., they must pose a serious impediment to the parent’s ability to navigate their

daily life. This conclusion is compelled not just because of the statutory language,

but also because of the underlying constitutional considerations which limit the

government’s power to intrude into the parent-child relationship. 7 The exercise of

poor judgment or irrational decisionmaking cannot be enough. Parents are human

after all; they can and do make mistakes.

7 See In re Ta.L., 149 A.3d at 1072 (acknowledging “the fundamental right of parents to raise their children”); see also id. at 1121–27 (Beckwith & Easterly, JJ., concurring in part and dissenting in part) (same). 26

Relatedly, because mental incapacity often is “related to some science,

profession, or occupation [so] as to be beyond the ken of the average layperson,” 8 it

may well need to be substantiated with expert testimony, as the neglect statute and

our cases reflect. Like other provisions of the D.C. Code, 9 the neglect statute

anticipates the need for expert input and authorizes the court “on its own motion or

the motion of any party, for good cause shown,” to “order the mental . . .

examination of the parent, guardian, or custodian of the child whose ability to care

for the child is at issue.” 10 D.C. Code § 16-2315(e)(1) (2012 Repl.). Likewise, our

8 In re B.L., 824 A.2d 954, 956 (D.C. 2003) (internal quotation marks omitted); cf. In re Wyler, 46 A.3d 396, 401 (D.C. 2012) (recognizing that mental illness is an “unusually complex and technical area” and explaining that proffered expert testimony must be properly vetted). Mental health professionals in the District are required to be professionally licensed (e.g., license to practice medicine, license to practice psychology, license to serve as a social worker). See D.C. Code § 7-1201.01(11) (2018 Repl.). More specifically, for a social worker to opine on a diagnosis and treatment of psychosocial problems, the social worker has to have “at least 3,000 hours of post- master’s or postdoctoral experience participating in the diagnosis and treatment of individuals . . . with psychosocial problems.” D.C. Code § 3-1208.04(a) (2021 Repl.). 9 See, e.g., D.C. Code § 21-2204(a) (2012 Repl.) (providing that before health care decisions for a person with mental illness may be made by a third party, the individual’s mental incapacity must be certified “by 2 professionals who are licensed to practice in the District and qualified to make a determination of mental incapacity”). 10 The magistrate judge twice directed C.P. to get a mental health assessment. The government represents in its brief that C.P. did not “timely present herself” for evaluation. But there is no information in the record about C.P.’s compliance with these orders. In any event, C.P.’s compliance was not essential to the presentation 27

cases reflect regular reliance on the testimony of one or more experts to support a

determination of mental capacity. 11 See, e.g., In re E.H., 718 A.2d at 166–68 (five

medical experts testified); In re P.B., 54 A.3d at 664–65 (two medical experts

testified); In re K.M., 75 A.3d 224, 233–35 (D.C. 2013) (two medical experts

testified, but evidence of nexus to neglect deemed insufficient).

Turning to the evidence in this case, we consider the foundation for the

associate judge’s conclusion that the government had carried its burden to prove

C.P.’s “mental incapacity, specifically obsession with imaginary medical conditions

which [B.C.] and she do not have, paranoia, anxiety, and a severe lack of trust.” 12

of expert testimony, which could have been based on C.P.’s medical records. Cf. In re Amey, 40 A.3d 902, 914–15 (D.C. 2012) (holding trial court did not err by allowing psychiatrist testifying as an expert witness to refer to hospital records and other hearsay statements in explaining the basis of his opinions, in part because hospital records “are unquestionably of the type[] [of statement] customarily relied on by psychiatrists” ). 11 The government highlights our determination in In re B.L. that alcoholism, the subject of the mental incapacity, was “a matter of common knowledge” which did not need to be substantiated with expert testimony. 824 A.2d at 956 (internal quotation marks omitted)). For the reasons discussed above, we disagree with the government that In re B.L. supports an expansive proposition that expert testimony is generally unnecessary to prove a parent’s mental incapacity under D.C. Code § 16-2301(9)(A)(iii); the case simply held that expert testimony was not required in light of the facts of that case. 12 Unlike the magistrate judge, the associate judge does not appear to have relied on C.P.’s historical “diagnosis of post-partum depression.” We agree that this diagnosis did not assist the government in carrying its burden of proof. We see no 28

To support her determination of C.P.’s mental incapacity, the associate judge

relied on nine years of C.P.’s medical records that the government put into evidence.

The associate judge noted that these records documented C.P.’s “several mental

health hospitalizations, including an involuntary commitment” and her receipt of

“Haldol, a psychotropic medication, on multiple occasions” and reflected her

“history of paranoia, depression, and anxiety.” The associate judge also relied on

“[r]ecords from [C.P.’s] primary care physician, Core Health and Wellness,

indicat[ing] that [C.P.] would frequently request unnecessary medical procedures

[and] exaggerate her symptoms.”

While this court has held that “[i]n evaluating the child’s condition, the trial

court’s inquiry must go beyond simply examining the most recent episode [of

neglect] or a single snapshot [in time], and instead must consider the entire mosaic in

making its determination,” In re P.B., 54 A.3d at 666 (brackets, citation, and internal

quotation marks omitted), particularly when assessing a parent’s mental incapacity,

connection on this record between C.P.’s diagnosis of postpartum depression after B.C.’s birth and her mental state years later, particularly in the absence of any expert testimony explaining what postpartum depression is, how long it can last, and whether and how it relates to other mental health issues. Although we held in In re B.L. that expert testimony is not necessarily required to support a finding of mental incapacity under the statute if the source of the incapacity is “a matter of common knowledge,” 824 A.2d at 956, as our questions reveal, we cannot so categorize postpartum depression. 29

the trial court must also take care not to rely too heavily on dated and potentially

stale information. Here, we cannot agree that C.P.’s medical records carry much

weight in establishing C.P.’s mental incapacity at the time of the alleged neglect.

C.P.’s actual mental health records were, like her postpartum depression diagnosis,

see supra note 12, many years old, from 2010–12. See In re L.H., 925 A.2d 579,

582–83 (D.C. 2007) (concluding that there was no foundation for the “perceived . . .

link” between mother’s hospitalization and mental health treatment in 1998 and the

state of her mental health at the time of the alleged neglect in 2004–05). Although

C.P.’s overall medical records spanned a time period up to the time of the alleged

neglect, the records that reflected a potential mental health problem—those

documenting her efforts to obtain medical care for perhaps questionable

complaints—were not contemporaneous with the alleged neglect. Rather, the

medical records from 2018–19 reflected that she had properly sought and received

treatment for verified ailments. Particularly in the absence of expert testimony

explaining what could be gleaned from these records about C.P.’s current mental

health, the associate judge’s inference from these records that C.P. was currently

mentally incapacitated “rests, in our view, on too much speculation.” Id. at 582–83

(“[T]he judge heard no psychiatric or other medical testimony relating the mother’s

past medical condition to her conduct in 2004 and her present capacity to parent.”). 30

As additional and more current evidence of C.P.’s mental incapacity, the

associate judge also relied on the medical records reflecting C.P.’s multiple efforts

to obtain medical care primarily for B.C.’s facial swelling. But the magistrate judge

had deemed these same records insufficient to support a determination that C.P.’s

mental incapacity caused her to seek out unnecessary medical treatment for B.C. We

agree with the magistrate judge that, on their own, these records did not support a

determination that visiting medical professionals was “a symptom of [C.P.’s]

paranoia,” as opposed to “a well-reasoned decision” and “proper diligence” on

C.P.’s part, especially when the evidence established that B.C. in fact had visible

facial swelling. And we further agree that it was “essential . . . to have at least one

expert to be able to opine on the mother’s actions being tantamount to medical

neglect.” Accordingly, while “mindful . . . of a trial judge’s prerogative to draw

reasonable inferences from the record,” In re L.H., 925 A.2d at 582, we cannot

endorse the associate judge’s reliance on the same medical records to support a

determination that C.P. was mentally incapacitated in the context of her educational

decisionmaking for B.C. 13 Here too, expert testimony was needed to evaluate the

medical records and explain their relevance to C.P.’s current mental health.

13 The associate judge’s reliance on these records after the magistrate judge declined to rely on them might be attributable to the associate judge’s misunderstanding that C.P. had imagined B.C.’s facial swelling. 31

This leaves the testimony from three lay witnesses—two CFSA social

workers assigned to C.P.’s case, Mr. Date and Mr. Rodrigues, and one CFSA

registered nurse, Ms. Tymus—who testified for the government about their

observations of C.P. The associate judge, like the magistrate judge before her, relied

on this testimony to support her determination that C.P. was mentally incapacitated.

Examining this testimony, we conclude that, at most, it constituted some evidence

on which an expert diagnosis could have been based or corroborated. But these

witnesses were not themselves qualified to make such a diagnosis, see supra note 8,

and their ultimately equivocal testimony did not provide a foundation for the

associate judge to determine that C.P.’s mental state could be assessed based on

common knowledge.

All three witnesses testified about C.P.’s resistance to working with them, and

Mr. Date and Mr. Rodrigues both cited C.P.’s distrust of them as a basis of their

belief that C.P. might have mental health issues. Although these CFSA employees

considered C.P.’s hostility abnormal, some amount of distrust and resentment is not

surprising under the circumstances where parents know that CFSA is responsible for

the removal of their child from their custody. Furthermore, Mr. Rodrigues, who had

had the most recent contact with C.P., testified that the situation had improved in the

four months he had been working on B.C.’s case. Mr. Date and Mr. Rodrigues also 32

grounded their mental health concerns in C.P.’s efforts to seek medical treatment for

B.C. But as discussed above, this was the allegation the magistrate judge determined

could not be supported in the absence of expert testimony. Ultimately, none of these

witnesses testified with any certainty that C.P. actually had a mental illness. Mr.

Date, who worked on B.C.’s case for the longest time and had the most in-person

interactions with C.P., testified only that “there was an indication that she had

unaddressed mental health needs.” (emphasis added). Mr. Rodrigues testified only

that he was “concern[ed]” about C.P.’s “lack of awareness of her mental health

needs” but also acknowledged that he was unsure that the agency had “an

understanding of where she is at mentally right now.”

This layperson testimony, like the mental health and medical records

presented by the government, was not sufficient to prove C.P.’s mental incapacity at

the time of the alleged neglect. Instead, this evidence in its totality indicates that the

situation was complicated and ambiguous, particularly in the absence of expert

testimony. The associate judge’s own assessment that C.P. was “obsess[ed] with

imaginary medical conditions” and suffered from “paranoia, anxiety, and a severe

lack of trust” was thus not adequately founded, and her conclusion that the

government had carried its burden to establish mental incapacity to support a

determination of neglect pursuant to § 16-2301(9)(A)(iii) was in error. 33

2. Nexus to Educational Neglect

As noted above, in addition to proving a parent’s mental incapacity at the time

of the alleged neglect, the government must demonstrate a causal relationship

between a parent’s mental incapacity and their inability provide parental care. See

In re E.H., 718 A.2d at 169. “Without any evidence of such a nexus, the adjudication

of neglect under [subsection (9)(A)(iii)] cannot be sustained.” In re Am. V., 833

A.2d 493, 499 (D.C. 2003) (insufficient evidence of nexus between mother’s

incapacity and inadequate care for her child); see also In re K.M., 75 A.3d at 231–

33; In re N.P., 882 A.2d at 251. Assuming for the sake of argument that C.P. was

mentally incapacitated at the time of the alleged neglect, there is simply no proof in

this record that her mental health had any bearing on B.C.’s educational neglect.

None of the government’s witnesses provided any such nexus testimony because this

was not the theory of neglect that the government pursued at trial. See supra I.A.

The government’s theory was that C.P.’s mental incapacity had led her to seek

unnecessary medical care for B.C. It was only after the magistrate judge twice

prompted the government to argue this alternate rationale that C.P.’s mental

incapacity led to B.C.’s educational neglect that the government pivoted to this

theory of neglect under § 16-2301(9)(A)(iii). 34

To the extent any relevant evidence was presented, it did not support a nexus

between any mental incapacity and B.C.’s educational neglect; instead it indicated

that C.P. was attentive to and concerned about B.C.’s education, even as she failed

to make good choices for him. Although she enrolled B.C. at three different schools

in a short span of time, C.P. offered not patently unreasonable explanations for her

actions—she withdrew B.C. from the first school because the commute was too long,

from the second because a spot opened up at the third that she thought would be

better for him, and from the third because she had some concern about bullying and

because in her estimation he worked better in “one-on-one sessions.” And she

contacted OSSE thereafter to get permission to homeschool B.C., as she had done

the year prior, and followed the agency’s instructions. None of this evidence

indicates that any mental incapacity had a causal connection to B.C.’s educational

neglect, and the government never argued otherwise. Instead, the government

conceded in rebuttal that it was “not sure of” “[t]he reason” for C.P.’s educational

decisions for B.C.

The associate judge’s conclusion that B.C.’s “numerous excused and

unexcused absences” from school were “presumably at least in part due to some of”

his appointments to address his “imaginary facial swelling” is problematic for

multiple reasons. First, B.C.’s facial swelling was not “imaginary.” Second, as the 35

magistrate judge found, the allegation that C.P. had sought unnecessary treatment

for B.C. was unsubstantiated. And third, the associate judge provided no basis, and

we discern none, for her determination that B.C. missed school to go to the doctor. 14

Likewise, the associate judge’s finding that C.P. opted to homeschool B.C.

because she did not want to leave him in the care of third parties had no foundation.

No witness ever attributed that rationale for homeschooling to C.P., and she never

testified to that effect. Nor can we conclude there was a reasonable basis for the

court to draw this inference either from Mr. Date’s testimony that C.P. was unwilling

to let B.C. be alone with him—a perceived adversary in the neglect process—or from

his testimony about C.P.’s actions at a January court hearing when B.C. was

removed from C.P.’s custody. The government presented no evidence at the neglect

trial that C.P. would not leave B.C. in the care of third parties, “even in the hallway

of the courthouse,” as the associate judge found. Mr. Date simply testified that C.P.

had failed to make arrangements for someone to watch B.C., that the hearing was

delayed “until some professional could watch him,” and that C.P. had to leave the

14 Although the magistrate judge found that C.P. often dropped B.C. off late or picked him up early at school because of her “lack of trust in others and inability to have [B.C.] outside her sight,” we see no evidence in the record supporting this finding either. 36

courtroom several times because B.C. was being disruptive. Mr. Date was unable

to say whether C.P. was willing to leave B.C. with someone else on that day.

Lastly, the associate judge’s conclusion that C.P.’s mental incapacity

“precluded her from recognizing her own inadequacies as a home schooling teacher”

is also unsubstantiated. Other than the fact that C.P. sought to homeschool B.C.,

there is no evidence about what C.P. thought at the time of her own abilities as a

homeschooling teacher. Without more, her decision to homeschool him in 2018

cannot be attributed to mental incapacity, especially when OSSE had authorized her

to homeschool him in 2017. Moreover, C.P. subsequently acknowledged at the

neglect trial that she could see now that she had not made the best choices for B.C.

vis-a-vis his education. 15

15 Citing to C.P.’s “admissions” that “she had made bad decisions” about B.C’s schooling and her inability to describe with precision the content of her homeschooling instruction, the government argues that there is sufficient evidence of nexus between C.P.’s mental incapacity and her educational neglect of B.C. But as explained above, mental incapacity is more than bad judgment, and the government’s nexus argument on appeal appears premised on a theory of cognitive impairment as mental incapacity, which the government never argued or proved at the neglect trial. 37

For all these reasons, we conclude that there was insufficient evidence to

support the associate judge’s affirmance of the magistrate judge’s determination of

mental incapacity neglect pursuant to D.C. Code 16-2301(9)(A)(iii).

III. Conclusion

Based on the above analysis, we reverse and remand for further proceedings

consistent with this opinion.

So ordered.