DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-FS-0386
IN RE L.M., APPELLANT;
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court of the District of Columbia (2023-NEG-000082)
(Hon. Judith Smith, Trial Judge)
(Argued May 11, 2023 Decided May 11, 2023 *)
Before BECKWITH, EASTERLY, and MCLEESE, Associate Judges.
Melissa Colangelo, with whom Rajan Bal and Katherine Piggott-Tooke were on the brief, for Children’s Law Center, as Guardian ad Litem, for appellant L.M.
Pamela Soncini, Assistant Attorney General, with whom Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Stacy L. Anderson, Senior Assistant Attorney General, were on the brief, for appellee District of Columbia.
MCLEESE, Associate Judge: Appellant L.M., through her guardian ad litem,
sought summary reversal of an order placing her in shelter care. See D.C. Code
§ 16-2301(14) (defining “shelter care” as “temporary care of a child in physically
* On the date of argument, the court issued an order granting L.M.’s motion for summary reversal. This opinion, originally issued as an unpublished memorandum opinion and judgment on September 12, 2023, explains our reasoning. The opinion is being published on December 21, 2023, with minor changes, upon the court’s grant of the guardian ad litem’s motion to publish. 2
unrestricting facilities, designated by the [court], pending a final disposition of a
[neglect] petition”). The District of Columbia filed a cross-motion for summary
affirmance. We reverse.
I. Factual Background
On May 1, 2023, the District of Columbia Child and Family Services Agency
(“CFSA”) took emergency custody of L.M., who was approximately five months
old. CFSA then filed a petition alleging that L.M. was a neglected child under D.C.
Code § 16-2301(9)(A)(ii) (child is “without proper parental care or control,
subsistence, education as required by law, or other care or control necessary for
[child’s] physical, mental, or emotional health”) and (iii) (child’s “parent, guardian,
or custodian is unable to discharge . . . responsibilities to . . . child because of
incarceration, hospitalization, or other physical or mental incapacity”). At a hearing
on May 4, 2023, the trial court heard proffers and took evidence as to whether the
allegation of neglect was supported by probable cause and whether to order shelter
care going forward. D.C. Code § 16-2312(d)-(f).
A. Evidence at Probable-Cause Hearing
The evidence at the probable-cause hearing included the following. On May
1, 2023, L.M.’s mother K.M. was admitted to George Washington University
Hospital (“GWUH”) complaining of fever, stomach pain, vomiting, and an apparent
seizure. CFSA received a call reporting concerns about K.M.’s ability to care for 3
L.M. In response to the call, Emma Kwegyir-Afful, a CFSA social worker and
mental-health clinician, went to GWUH. When Ms. Kwegyir-Afful initially spoke
with K.M., K.M. was “alert” and used “nonverbal cues like shaking [her] head,
nodding, and . . . signing with her hands to communicate.” Ms. Kwegyir-Afful did
not know how to use sign language, and no sign-language interpreter was present,
despite Ms. Kwegyir-Afful’s request that GWUH staff obtain one.
Ms. Kwegyir-Afful left K.M.’s hospital room but later returned and spoke
with K.M. At that point, K.M. said that she went to the hospital because she was not
feeling well and had a fever of 104 degrees. Ms. Kwegyir-Afful asked K.M. whether
there was anyone Ms. Kwegyir-Afful could call to care for L.M. while K.M. was in
the hospital. K.M. replied that there was “nobody and neither can I.” At this point,
Ms. Kwegyir-Afful told K.M. that K.M. was experiencing a mental crisis and that a
caregiver for L.M. had to be found. When Ms. Kwegyir-Afful informed K.M. that
L.M. might have to go into foster care if K.M. could not find someone to care for
her, K.M. stated that she would rather have L.M. go into foster care than have L.M.
stay with K.M.’s family, which included “drug addicts, sex offenders, users, and
other things.”
Stephanie Gannon, a GWUH social worker, told Ms. Kwegyir-Afful that
K.M. was initially communicative but at some point stopped communicating.
Nursing staff told Ms. Kwegyir-Afful that K.M. at one point “suddenly stopped 4
communicating” and was “using sign language.” Ms. Kwegyir-Afful estimated that
K.M. was “nonverbal” for approximately five hours during Ms. Kwegyir-Afful’s
visit.
Nursing staff told Ms. Kwegyir-Afful that they determined that neither K.M.’s
bloodwork nor a CT scan indicated that K.M. was having physical symptoms, and
nursing staff believed that K.M. was experiencing a mental-health crisis. According
to hospital staff, K.M. had been to GWUH previously for the “same concerns.”
Nursing staff also provided Ms. Kwegyir-Afful with information suggesting that
K.M. was a missing person from Oklahoma. Based on this information,
Ms. Kwegyir-Afful conducted an internet search of K.M.’s name and found a video
of K.M.’s mother reporting that K.M. had been missing since 2019 and that K.M.
has schizoaffective disorder, epilepsy, and the mental capacity of a ten-year-old.
Ms. Kwegyir-Afful observed L.M. with a nurse in a room separate from K.M.
and conducted a physical assessment of L.M. Ms. Kwegyir-Afful concluded that
L.M. was free of any marks, scars, or bruises; was dressed appropriately; was able
to maintain eye contact with Ms. Kwegyir-Afful; moved around like a normal baby;
was developmentally and physically on track; and appeared of normal weight for her
height. Ms. Kwegyir-Afful had “[n]o concerns as it relate[d] to [L.M.’s] physical
care or wellbeing at [that] time.” Ms. Kwegyir-Afful observed a diaper bag
containing diapers, and GWUH had provided formula for L.M. CFSA nevertheless 5
took emergency custody of L.M. on the ground that K.M was having a mental-health
crisis, could not care for L.M., and had no one else available to care for L.M.
K.M. was discharged from GWUH on May 2, 2023. The next day, Bianca
McDonald, a CFSA social worker and mental-health clinician, visited K.M.’s
apartment at Sasha Bruce transitional housing to evaluate whether L.M. could safely
return home. K.M.’s two-bedroom, one-bathroom apartment had “minimal
furnishings,” and K.M. explained that the apartment was somewhat dirty because
she had been unable to secure cleaning supplies. There were, however, a crib, a
changing table, and other items that an infant would need.
Ms. McDonald found K.M. to be “very pleasant,” well-spoken, and
transparent about her past experiences. K.M. told Ms. McDonald that K.M. had only
completed formal education through fourth grade and that her written
communication skills were “self-taught.” K.M. later showed Ms. McDonald a
missing-persons poster that was created when she ran away from her home in
Oklahoma in 2019 and contained a photo of K.M. wearing a backpack; K.M.
explained that the picture was taken on one of the last instances she had attended
school before leaving Oklahoma. K.M. explained that there was “abuse and neglect”
in her Oklahoma home environment and that she had experienced human trafficking.
Ms. McDonald found the information K.M. provided about her departure from
Oklahoma to be “contradictory,” citing an example in which K.M. at one point said 6
that she took a bus directly from Oklahoma to Washington, D.C., and at another
point stated that she had traveled to all fifty states involuntarily and had been moved
across the country as a trafficking victim.
K.M. explained to Ms. McDonald that she had also received services from a
number of other social-service organizations and entities in the District, including
the Latin American Youth Center (“LAYC”), a program called SMYAL, Martha’s
Table, Mary’s Center, and a home nurse. K.M. told Ms. McDonald that SMYAL
had previously forced her to schedule an abortion and that K.M. had experienced
several miscarriages and stillbirths before giving birth to L.M. K.M. further said
that she had been diagnosed with complex post-traumatic stress disorder and autism.
K.M. reported that while she lived with her family in Oklahoma, K.M. took 160
medications daily, but she now prefers homeopathic and non-pharmaceutical
treatments. K.M. explained that she had been unable to communicate verbally at
times during her recent emergency-room visit because she was in a postictal period
following a seizure—an occurrence that constitutes a “full reset” of her brain and
often requires some time to return to normal functioning. K.M. also told
Ms. McDonald that she had received medication while at GWUH that K.M. believed
might also have affected her ability to communicate verbally.
When Ms. McDonald asked K.M. to describe how she financially supported
L.M., K.M. explained that a number of friends and community resources supported 7
K.M. and provided her with access to things like baby formula and diapers. K.M.
acknowledged that some of her friends were drug users.
K.M. mentioned that one of her friends—a person named Michelle—could
potentially serve as a caregiver for L.M. if needed. Ms. McDonald sent a text
message to Michelle using the phone number K.M. provided, but Ms. McDonald
had not received a reply by the time of the hearing. Ms. McDonald also spoke to
two on-site Sasha Bruce staff members, and Ms. McDonald was concerned that they
were unfamiliar with K.M.’s potential mental-health concerns. Sasha Bruce staff
members informed Ms. McDonald about a domestic-violence incident that took
place approximately one month before the hearing. They explained that police had
responded to a call regarding a potential robbery in which K.M.’s romantic partner
was the perpetrator and K.M. was the victim.
Based on these conversations, Ms. McDonald was concerned that K.M.
demonstrated “some potential delusional thought content with a significant amount
of grandiosity,” “elaboration,” and “contradict[ion]” in the personal history K.M.
described. Ms. McDonald’s clinical assessment of K.M. was that there was a “very
strong likelihood” that K.M. was experiencing “heightened” mental-health
symptoms. Ms. McDonald’s greatest concern for L.M.’s safety arose from K.M.’s
conduct during her emergency-room visit, which Ms. McDonald described as
“creat[ing] incredibly significant concern that [K.M.] was experiencing a psychotic 8
episode.” Ms. McDonald explained that psychotic episodes generally happen more
than once, and that if K.M. were to experience another psychotic episode, K.M.’s
symptoms—including her apparent inability to communicate verbally—could
prevent her from ensuring L.M.’s safety. Ms. McDonald also expressed concern that
both CFSA and other health-care providers lacked information about K.M.’s
mental-health symptoms and any formal diagnoses she might have. Further,
Ms. McDonald doubted the degree of oversight K.M. had from Sasha Bruce staff
members, who had not reported the potential domestic-violence incident to CFSA.
Michelle Dai Zotti—K.M.’s friend and the person K.M. suggested could
become L.M.’s emergency caregiver if needed—testified that she met K.M. at a
playground in their neighborhood in February 2023. Ms. Dai Zotti lives in a
two-bedroom apartment with her husband and her two-year-old son, works as a
program manager at an international non-profit organization, and holds a master’s
degree in international relations. K.M. stayed with Ms. Dai Zotti for one week in
February 2023 while K.M. waited to be placed in an apartment. Ms. Dai Zotti saw
K.M. again in March and once more shortly before the hearing, when the pair went
for a walk. In addition to those in-person visits, K.M. and Ms. Dai Zotti
communicated daily on the phone. Ms. Dai Zotti described K.M. as a caring and
loving mother. Ms. Dai Zotti had observed K.M. feeding L.M. every two or three
hours, playing with L.M., changing her diaper, and cleaning L.M. Ms. Dai Zotti had 9
never observed K.M. behaving in an inappropriate way toward Ms. Dai Zotti’s son;
in fact, Ms. Dai Zotti had left K.M. alone with her son on one occasion.
Ms. Dai Zotti had not witnessed K.M. display behaviors that led Ms. Dai Zotti to be
concerned about K.M.’s mental health, and Ms. Dai Zotti never felt uncomfortable
with K.M. in her home or spending time with Ms. Dai Zotti’s son. Ms. Dai Zotti
offered to serve as an emergency contact for K.M. and as an emergency caregiver to
L.M. if needed. Ms. Dai Zotti denied having received any text message from
Ms. McDonald.
Benita Sholar, one of the Sasha Bruce staff members with whom
Ms. McDonald met and a mental-health professional, testified that she generally
communicates with K.M. daily Monday through Friday, frequently in person. Sasha
Bruce is an independent-living facility that covers rent, utilities, and cable and
internet service for its residents. Three staff members operate the program from 7
a.m. to 5 p.m. on Monday through Friday, and staff is unavailable on the weekends.
L.M. accompanied K.M. during each of K.M.’s in-person visits with Ms. Sholar, and
Ms. Sholar observed that K.M. “engage[d L.M.] appropriately” by making happy
faces, cooing, and playing with L.M. None of these interactions left Ms. Sholar
concerned about K.M.’s care for L.M. K.M. had recently been approved for
permanent supportive housing and case-management services. 10
Approximately four weeks before the hearing, a couple of residents contacted
Sasha Bruce staff complaining of vomiting, diarrhea, and headaches; K.M.
complained of the same symptoms around this time. Ms. Sholar described K.M. as
appearing sickly, weak, and fatigued. On May 1, 2023, K.M. sent Ms. Sholar an
email reporting that K.M. had a high temperature and was going to seek medical
attention. In a follow-up email, K.M. informed Ms. Sholar that she had sought help
at a fire department while en route to the hospital. Later that day, Ms. Sholar spoke
to a CFSA social worker and explained that K.M. had never had difficulty
communicating with Sasha Bruce staff and that Ms. Sholar considered K.M. to be
an effective communicator.
Ms. Sholar explained that she would be able to provide support for K.M. and
L.M. when the Sasha Bruce office is open, and that although she has previously
cared for children whose parents were hospitalized, she cannot take such children
home. Ms. Sholar testified that she was not aware of a violent incident occurring at
K.M.’s apartment; she explained that she was aware that the police were called, but
she was unsure why.
K.M. testified as follows. She had a high fever on the morning of May 1,
2023. While on her way to urgent care to seek treatment, K.M. felt nauseated and
decided to stop at a fire station for a COVID-19 test. At the fire station, K.M. was 11
informed that she would need to be transported to the emergency room in an
ambulance due to the fever and other symptoms she presented.
K.M. had a seizure approximately three or four hours after arriving at GWUH.
During the seizure, and for approximately one-and-a-half hours thereafter, K.M. was
unable to care for L.M.; GWUH staff cared for L.M. during that time frame. K.M.
had experienced one other seizure in the last year, and approximately five or six
years before the hearing, she experienced another situation in which she was unable
to communicate verbally. K.M. had been diagnosed with complex post-traumatic
stress disorder and high-functioning autism. K.M. does not take medication for these
conditions and prefers homeopathic and non-pharmaceutical methods of managing
her mental health. K.M. is fluent in American Sign Language, which served as her
primary means of communication during the first eight years of her life because she
was non-verbal during that time.
K.M. receives assistance from Sasha Bruce; her friend Michelle, whom K.M.
had seen in person at least fifteen times; Martha’s Table, where she purchased
diapers and other supplies; LAYC, where she purchased the same, in addition to
completing a parenting class; Mary’s Center, where K.M. receives mental-health
services two or three times per week; and a home nurse, who K.M. estimated visits
weekly, and who checks K.M.’s and L.M.’s vitals, monitors L.M.’s development,
and brings resources like formula, diapers, and toys. 12
Finally, K.M. denied having been a victim of a crime on the day the police
responded to her apartment, although K.M. recalled a stranger knocking on the door
of her apartment.
B. Trial Court’s Decision
The trial court concluded that CFSA had established probable cause to believe
the allegations in the neglect petition were true. The trial court also continued L.M.’s
shelter-care placement. The trial court generally credited all of the witnesses except
for K.M., finding that K.M.’s testimony was contradicted by other testimony, was
internally inconsistent, and “didn’t necessarily make logical sense” at times. By way
of example, the trial court found that K.M.’s indication that she saw Ms. Dai Zotti
in person fifteen times or more conflicted with Ms. Dai Zotti’s testimony that, apart
from the week when K.M. stayed in her home, K.M. and Ms. Dai Zotti saw each
other in person one or two times.
It was not entirely clear to the trial court whether a significant medical and
physical issue or a mental-health issue caused K.M. to go to the hospital, and the
trial court acknowledged that the information that GWUH provided to CFSA was
inconsistent with a conclusion that K.M. was experiencing a physical issue. The
trial court determined, however, that whether K.M.’s physical health or mental
health led K.M. to seek medical care, K.M. was unable to care for L.M. for a period
of time. The trial court concluded that K.M.’s testimony reflected a lack of 13
understanding about the need to have a caregiving plan in place for L.M. in case of
a short-term lapse in K.M.’s ability to serve that function. Acknowledging that it
was not in a position to diagnose K.M., the trial court observed that K.M. “seem[ed]
to be a bit detached from reality.”
The trial court noted that K.M. had taken some steps toward building a
satisfactory emergency-care plan for L.M., including reliance on Ms. Dai Zotti, but
expressed concern that K.M. did not appear to “truly accept” her mental-health
diagnosis. Because Sasha Bruce staff are only on site from 7 a.m. to 5 p.m. on
weekdays, the trial court found that K.M. was not adequately connected to
mental-health services in an “ongoing way” and it was unclear what resources K.M.
would be able to access in the evenings and during weekends. The trial court also
found that the District had made “reasonable efforts” to prevent L.M.’s removal,
including contacting K.M.’s relatives.
After the hearing, the trial court issued a written order memorializing its
conclusions that continued shelter care was required (1) “to protect the person of”
L.M., or (2) “because [L.M.] has no parent, guardian, custodian or other person or
agency able to provide supervision and care for [L.M.]” and “no alternative
resources or arrangements are available to the family that would adequately
safeguard [L.M.] without requiring removal.” 14
II. Legal Standards
As previously noted, when CFSA believes that a child is neglected, CFSA
may place the child in shelter care before any proceedings have begun in a neglect
case if certain statutory requirements are satisfied:
A child shall not be placed in shelter care prior to a factfinding hearing or a dispositional hearing unless it appears from available information that shelter care is required – (1) to protect the person of the child, or (2) because the child has no parent, guardian, custodian, or other person or agency able to provide supervision and care for him, and the child appears unable to care for himself and that (3) no alternative resources or arrangements are available to the family that would adequately safeguard the child without requiring removal.
D.C. Code § 16-2310(b)(1)-(3). When the issue arises in court, CFSA bears the
burden of showing that shelter care is required, but the applicable statutes and court
rules do not specify the magnitude of that burden. See id.; id. § 16-2312(d)(1) (at
end of shelter-care hearing judge “shall” order shelter care if the judge “finds that
. . . shelter care is required under the criteria in [D.C. Code] section 16-2310”);
Super. Ct. Neg. R. 13(a) (government has burden to show that shelter care is
required).
Court rules list numerous factors relevant to determining whether shelter care
is necessary. Super. Ct. Neg. R. 13(b)(1)-(5), (c)(1)-(4). Before placing a child in
shelter care, the trial court must determine both that no alternative arrangements are 15
available that would “adequately safeguard the child without requiring removal” and
that no other custodian is available to adequately care for the child. Super. Ct. Neg.
R. 13(d)(1)-(2). The trial court must also “evaluate the harm to the child that may
result from removal.” Super. Ct. Neg. R. 13(e). Finally, in neglect cases, an order
of shelter care must include a determination of whether (1) reasonable efforts were
made to avoid the need for removal, or removal would be necessary regardless of
the services that could be provided; and (2) placing the child in the child’s home
would be contrary to the welfare of the child. D.C. Code § 16-2312(d)(3).
We generally review the trial court’s rulings in neglect cases for abuse of
discretion. In re D.S., 88 A.3d 678, 691 n.21 (D.C. 2014) (“In conducting [a] review
of the trial court’s orders in neglect proceedings, we employ an abuse-of-discretion
standard and evaluate whether the trial court exercised its discretion within the range
of permissible alternatives, based on all relevant factors and no improper factor.”)
(internal quotation marks omitted).
III. Analysis
We first flag an issue that we need not and do not decide. As previously
mentioned, the applicable statutes and court rules do not explicitly specify a standard
by which to measure the District’s burden of proof in connection with a trial court’s
decision whether to order continued shelter care at the end of the shelter-care
hearing. D.C. Code §§ 16-2310(b)(1)-(3), 16-2312; Super. Ct. Neg. R. 13(a). L.M. 16
argues that the District should bear the burden of proof by a preponderance of the
evidence. The District argues that its burden should “at most” be to establish
probable cause. Because we conclude that the District failed to carry its burden even
under a less-demanding probable-cause standard, we assume without deciding that
a probable-cause standard applies.
It is true that there was a period at the hospital where K.M. was not able to
care for L.M. Such a period could arise, however, for any parent facing a health
emergency. As the District appears to acknowledge, whether shelter care was
necessary going forward depends on the extent to which there was a sufficient risk
that similar periods would arise in the future during which neither K.M nor other
resources would be available to care for L.M.
It is also true that the record supports the trial court’s conclusions that K.M.
had mental-health issues that had not been fully addressed. What we conclude is
lacking, however, is adequate support in the record for a conclusion, even at the level
of probable cause, that K.M.’s mental-health issues were sufficiently likely to
endanger L.M.’s welfare as to make shelter care necessary. We reach that
conclusion for several reasons.
First, it is uncontested that L.M. presented at the hospital as an entirely healthy
child. Second, there was ample evidence, from witnesses the trial court generally
credited, that K.M. generally functioned well as a caregiver to L.M. Third, there 17
was ample evidence as to various support systems and resources available to K.M,
including various social-service agencies and K.M’s friend Ms. Dai Zotti. Cf. In re
D.S., 88 A.3d 678, 695 (D.C. 2014) (noting that District is required to “make a
showing that . . . placement in shelter care was the only available option to protect
the children”). Finally, there was no clear evidence, and no clear finding by the trial
court, as to the precise nature of K.M.’s mental-health issues or the likelihood that
those mental-health issues would recur in a way that would endanger L.M. Cf. In re
K.M., 75 A.3d 224, 231 (D.C. 2013) (requiring, in context of neglect finding based
on mental incapacity of parent, that District “demonstrate the existence of a nexus
between a parent’s [ ] mental incapacity and an inability to provide proper parental
care”).
For the foregoing reasons, we granted L.M.’s motion for summary reversal,
remanded the case to the Superior Court, and directed the Superior Court to return
L.M. to the custody of K.M., subject to conditions imposed by the Superior Court.
So ordered.