In Re ND

909 A.2d 165, 2006 WL 2882573
CourtDistrict of Columbia Court of Appeals
DecidedOctober 12, 2006
Docket00-FS-1054
StatusPublished

This text of 909 A.2d 165 (In Re ND) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re ND, 909 A.2d 165, 2006 WL 2882573 (D.C. 2006).

Opinion

909 A.2d 165 (2006)

In re N.D.
K.D., Appellant.

No. 00-FS-1054.

District of Columbia Court of Appeals.

Submitted November 4, 2003.
Decided October 12, 2006.

*167 Marion E. Baurley, appointed by the court, was on the brief for appellant.

Robert J. Spagnoletti, Attorney General for the District of Columbia, Edward A. Schwab, Deputy Attorney General, and Sheila Kaplan, Assistant Attorney General, were on the brief for appellee District of Columbia.

Ardelia Davis, guardian ad litem, Alexandria, VA, filed a statement in lieu of brief for appellee N.D.

Thomas C. Devlin, filed a statement in lieu of brief for appellee E.D.

Before RUIZ, Associate Judge, and KING and TERRY, Senior Judges.[*]

TERRY, Senior Judge:

Appellant K.D. brings this appeal from the trial court's decision to revoke her protective supervision of her daughter N.D.[1] She presents two claims of error. First, appellant contends that there was insufficient evidence to permit the trial court to find that she had violated the order granting protective supervision. Second, she maintains that she was denied due process of law because the Corporation Counsel[2] was allowed to make an oral motion to revoke protective supervision instead of being required to file a written motion. We find no error, and accordingly we affirm the trial court's order.

I

In May 1998 the District of Columbia filed a petition stating that eight-year-old N.D. was a neglected child under D.C.Code § 16-2301(9)(B) and (E) (1997). The petition was based on a report that N.D.'s ten-year-old sister had been sexually abused by her mother's live-in boy friend, K.W. On September 2, 1998, the parties stipulated that N.D. and her sisters were neglected children. The two youngest sisters, who were then seven and four years old, were immediately placed under protective supervision with K.D., their mother, on condition that K.W. "will have no contact with any of the respondents while they are in her care," and that "such contact may be grounds for revocation of the order placing the respondents in her *168 care." K.D. agreed to these conditions. N.D., then nine years old, was placed in foster care. About a year later, however, N.D. was removed from foster care and placed under protective supervision with K.D.[3]

At a status hearing in May 2000, N.D.'s guardian ad litem informed the trial court that K.W. was still living with K.D. At some point during the hearing, the Corporation Counsel made an oral motion requesting that the mother's protective supervision of N.D. be revoked. When the hearing resumed the next day, K.D.'s counsel asked that the government file a written motion and that an evidentiary hearing be held if the court was considering such a revocation. The court responded by saying that counsel for the District "yesterday told me that she wished to revoke protective supervision. No written motion has been filed." Without any further objection to the oral motion or any assertion that more time was needed, K.D.'s counsel agreed to the scheduling of an evidentiary hearing a week later.[4]

The District's first witness at the evidentiary hearing was Marlene Jackson, a social worker with Family and Child Services. Ms. Jackson testified that during a case conference K.D. said "yes" when her supervisor asked if K.W. was living in her home, and that the other children also stated that K.W. was living in the home. K.D.'s counsel made a hearsay objection, which the court overruled. Ms. Jackson then informed the court that she had not spoken with the children, and that the children's statements had been relayed to her by Lillian Wilkins, a foster mother to one of N.D.'s siblings.

Lillian Wilkins then testified that during the previous week she had spoken with N.D. about whether K.W. was living with her mother. K.D.'s counsel made another hearsay objection, which again was overruled. Ms. Wilkins then went on to state that N.D. told her that K.W. was living in the home.

On the second day of the hearing, K.D.'s counsel renewed her hearsay objections from the previous day. The court responded, "I am able to parse out what can be attributed or what can be used in a motion to revoke."[5] The District then called Thomas Fulford, an outreach worker from the Institute for Responsible Fatherhood and Family Revitalization, and E.D., N.D.'s father, to testify. Both Mr. Fulford and E.D. testified that they had encountered K.W. at K.D.'s home during an unannounced visit. Moreover, they both stated that K.W. was in the home while N.D. was there.

On the third day of the hearing, the court conducted an informal interview of N.D. Before the interview began, the following exchange took place between the court and K.D.'s counsel:

THE COURT: And, counsel, I'm inclined not to put [N.D.] under oath but to just *169 sit with her and talk right here in the jury box.
MS. BLUME [K.D.'s counsel]: Well, Your Honor, one thing that I would like to have you discuss with her is if she understands the importance of telling the truth.
THE COURT: I intend to do that.
MS. BLUME: Okay.

When N.D. was brought into the courtroom, the judge asked her if she understood the importance of telling the truth, and N.D. replied that she did. The judge then asked N.D. about K.W.'s presence in her mother's home. Despite being confused about the amount of time that she spent in foster care, N.D. repeatedly stated that K.W. was living with her mother when she returned home after being in foster care.

On the fourth day of the hearing, the court heard closing arguments. Before beginning her argument, K.D.'s counsel had the following discussion with the court:

MS. BLUME: Well, very briefly, Your Honor . . . I want to focus my closing argument primarily on the testimony of [N.D.] because I believe you've heard — you've heard a lot of testimony and there's a lot of he said/she said. Who do you believe when you hear —
THE COURT: And just technically, I don't believe it was testimony because she was [not] under oath, but in reviewing her statement, I often slip into calling it testimony also.
MS. BLUME: Her — her questioning by you that was not under oath. And I think there were a lot of points of concern here, and I want to bring them to the Court's attention.

K.D.'s counsel then made her argument, which focused on a comparison of the statements made by N.D. with the testimony given by the other witnesses.

After hearing closing arguments from both sides, the court decided to revoke K.D.'s protective supervision of N.D. because K.D. had allowed K.W. to be in her home while N.D. was there. Finding the mother's testimony "not believable," "jumbled," and "confused," the court explained that it based its decision on the statements from N.D. and the testimony of Mr. Fulford and E.D.:

. . . I really found [N.D.] to be guileless. She didn't appear to be fabricating to me. . . . I accept that she has or she may have a distorted concept about time, but as Ms. Blume points out . . . the concept or her difficulty with time I don't think related to her ability to explain that since her return, [K.W.] has been there regularly.
. . . [E.D.] and Mr.

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Bluebook (online)
909 A.2d 165, 2006 WL 2882573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nd-dc-2006.