In re Z.M.

• Court: District of Columbia Court of Appeals
• Decided: April 14, 2022
• Docket: 20-FS-770
• Status: Published

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 20-FS-770

IN RE Z.M.;

DISTRICT OF COLUMBIA, APPELLANT.

Appeal from the Superior Court of the District of Columbia (NEG-322-19)

(Hon. Jennifer Di Toro, Associate Judge) (Hon. Kenia Seoane-Lopez, Magistrate Judge)

(Argued November 2, 2021 Decided April 14, 2022)

Pamela Soncini, Assistant Attorney General, with whom Karl Racine, Attorney General, Loren L. AliKhan, Solicitor General (at the time of argument), Caroline S. Van Zile, Principal Deputy Solicitor General (at the time of argument), and Stacy L. Anderson, Senior Assistant Attorney General, were on the brief, for appellant.

Madhavan K. Nair for appellee.

Katherine Piggott-Tooke, Guardian ad Litem, with whom Melissa Colangelo, Guardian ad Litem, was on the brief.

Before GLICKMAN and DEAHL, Associate Judges, and THOMPSON, ∗ Senior Judge.

∗ Senior Judge Thompson was an Associate Judge of the court at the time of argument. On October 4, 2021, she was appointed as a Senior Judge but she continued to serve as an Associate Judge until February 17, 2022. See D.C. Code § 2

Opinion for the court by Associate Judge GLICKMAN. Dissenting opinion by Associate Judge DEAHL at page 23.

GLICKMAN, Associate Judge: The District appeals an order of the Superior

Court reversing a magistrate judge’s adjudication of Z.M. as a neglected child. The

District filed its neglect petition after Z.M.’s mother, C.M., twice left the eighteen-

month-old child at day care and failed to pick him up at the end of the day, without

contacting the day care, being reachable, or having someone else fill in for her, and

without providing a satisfactory reason or excuse. On review, the associate judge

held that the findings of neglect were plainly wrong or without sufficient support in

the evidence presented to and considered by the magistrate judge. We reverse the

associate judge and reinstate the magistrate judge’s determination that Z.M. was a

neglected child within the meaning of D.C. Code § 16-2301 (9)(A)(iv) (2021 Supp.).

I.

C.M. and Z.M. lived with C.M.’s mother, N.M., in the District. When Z.M.

was around eighteen months old, C.M. enrolled him in a day care facility, the Home

Away From Home Child Development Center. He went there for approximately six

weeks. On October 21, 2019, C.M. failed to pick him up from day care before

11-1502 & 1504(b)(3) (2012 Repl.) On February 18, 2022, she began her service as a Senior Judge. See D.C. Code § 11-1504. 3

closing time. Neither she nor N.M. (the only other person authorized to pick Z.M.

up) answered phone calls from the day care center. At 7:00 p.m., the day care

contacted the Metropolitan Police Department (MPD). The police also tried to

contact C.M. and were unable to do so. Eventually, the police transported Z.M. to

the Child and Family Services Agency (CFSA). Less than two weeks later, on

November 1, 2019, Z.M. again was left at the day care past its closing time and C.M.

was not heard from and could not be reached. A CFSA social worker retrieved Z.M.

from the day care that evening.

After the second incident, the District filed a petition alleging that Z.M. was

a neglected child within the meaning of paragraphs (ii), (iii), and (iv) of D.C. Code

§ 16-2301(9)(A). Paragraph (ii) provides that a child is neglected if the child is

“without proper parental care or control, subsistence, education as required by law,

or other care or control necessary for [the child’s] physical, mental, or emotional

health,” and the deprivation is not due to a parent’s “lack of financial means.”

Paragraph (iii) states that a child is neglected if the “parent, guardian, or custodian

is unable to discharge his or her responsibilities to and for the child because of

incarceration, hospitalization, or other physical or mental incapacity.” 1 Paragraph

1 The magistrate judge concluded that the government did not prove neglect under paragraph (iii) and that ruling is not challenged on appeal. 4

(iv) contains a narrower definition; it states that a child is a neglected child if the

“parent, guardian, or custodian refuses or is unable to assume the responsibility for

the child’s care, control, or subsistence and the person or institution which is

providing for the child states an intention to discontinue such care.” The District

based its neglect petition primarily on the allegation that C.M. was repeatedly

unwilling or unable to assume the responsibility of caring for Z.M. after his day care

center’s closing time at the end of the day. At trial, the Guardian ad Litem (GAL),

counsel from the Children’s Law Center, supported the District’s petition for a

finding of neglect under both paragraphs (ii) and (iv) (but not paragraph (iii)).

A. The Neglect Trial

At the neglect trial held on February 27, 2020, then-Magistrate Judge Seoane-

Lopez heard testimony from six witnesses — the day care director, two CFSA social

workers, Z.M.’s pediatrician, C.M, and N.M. The District’s witnesses were

Veronica Rudd, director of the Home Away from Home Child Development Center,

and Ashley Jamison, CFSA social worker. The GAL called LaTrina Sheppard,

CFSA social worker, and Dr. Rebecca Carlin, Z.M.’s pediatrician. C.M. called N.M.

and testified on her own behalf.

Veronica Rudd, director of the Home Away From Home Child Development

Center, testified that the day care operated Monday through Friday, from 7:15 a.m. 5

until 5:45 p.m. When asked whether failure to pick up a child by closing time was

a “problem,” Ms. Rudd explained that it was, because “staff goes home and the

building closes.” During the six weeks Z.M. attended the day care, Ms. Rudd

testified, C.M. typically dropped him off each morning and picked him up in the

afternoons between 4:00 and 5:00 p.m. Only C.M. and her mother N.M. were on

the list of persons who were preauthorized to pick the child up, and the day care

would not release a child to someone not on the list absent specific parental consent

for that occasion and an identification check. Ms. Rudd said C.M. did not inform

the day care that anyone else would be picking up Z.M. on October 21, 2019, or

November 1, 2019. On October 21, 2019, when C.M. did not arrive to pick up Z.M.

by 5:45 p.m., Ms. Rudd began calling both C.M. and N.M., but could not reach either

of them despite multiple attempts. At 7:00 p.m., after no one had come for the child,

she called MPD, as required by the day care’s policy, and they transported Z.M. to

CFSA. Ten days later, on November 1, 2019, Z.M. again was left at the day care

past closing time. After unsuccessfully attempting to reach C.M., Ms. Rudd released

Z.M. to CFSA social worker Ashley Jamison, who took him to the agency around

6:20 p.m.

Ms. Jamison testified that she was assigned to the case when the police

brought Z.M. to CFSA on October 21. Later that night, C.M. showed up at the

agency to reclaim Z.M. C.M. told Ms. Jamison that she had arranged for a friend to 6

pick up Z.M. that day because she had to go to her workplace to do something. C.M.

identified the friend only as “Da-Da.” When asked, C.M. could not provide Da-Da’s

last name, address, phone number, or the text messages C.M. claimed to have

exchanged with him about his picking up Z.M. for her. C.M. said she did not confirm

with Da-Da that he had picked up Z.M. She assumed he had done so until she arrived

home at 9:00 p.m. and found that Z.M. was not there. Ms. Jamison observed that

C.M. appeared unconcerned and “seemed to be under the influence.” Ms. Jamison

asked her if she was “on something,” and C.M. admitted to having smoked marijuana

earlier that evening. Ms. Jamison then informed C.M. that to avoid Z.M.’s removal,

there needed to be a safety plan in place for him while CFSA’s investigation of the

situation was ongoing. C.M. agreed to having a maternal cousin, R.N., take interim

custody of Z.M. beginning that night, and that she would have supervised visitation

with Z.M.

On November 1, 2019, Ms. Jamison learned that R.N. had not followed the

agreed-upon safety plan for Z.M. and instead had returned him to C.M. Ms. Jamison

then made several calls to both C.M. and N.M. to check on Z.M. Unable to reach

either of them, she next called Z.M.’s day care. The day care was relieved to hear

from her. It was late in the day, the day care was closing soon, Z.M. was still there,

no one had come for him, and it had been unable to reach C.M. After 6:00 p.m., Ms.

Jamison went to the day care and waited approximately fifteen minutes to see if C.M. 7

would show up. When she did not, Ms. Jamison brought Z.M. back to CFSA for the

second time.

Ultimately, Ms. Jamison testified, because C.M. twice in ten days had failed

to pick Z.M. up from day care or make suitable alternate arrangements, had been

unresponsive to the day care and the agency, and had not exhibited concern for her

child, CFSA determined a removal was in Z.M.’s best interest. On November 4,

2019, the District filed a neglect petition and Z.M. was placed in shelter care pending

its adjudication.

LaTrina Sheppard, a CFSA permanency social worker, testified that during

her first home visit after Z.M.’s removal, C.M. inquired about Z.M. and seemed

relieved to know his foster care placement was in the District. However, when

supervising visits with Z.M. and his family, Ms. Sheppard found it difficult to

observe direct interaction between him and his mother due to the presence of N.M.,

and those positive interactions she did see “required[d] prompting.” For example,

she noticed C.M. “relied on her mom” to ensure Z.M. did not run out of the visit

room when “he continued to open and close the door of the visit room,” and there

was a set of stairs nearby. Ms. Sheppard further testified that C.M. was required to

attend parenting classes, undergo drug screenings, and complete an Addiction

Prevention and Recovery Administration (APRA) assessment, and that while C.M. 8

verbally reported participating in the classes and screenings, Ms. Sheppard did not

receive the corresponding confirmatory documentation. She reported that in this

case, “it has been difficult to get details” from C.M. and that “communication ha[d]

definitely been a barrier.”

Dr. Rebecca Carlin, Z.M.’s pediatrician, testified that Z.M. was small when

he was born and had a serious medical condition that required medication such that

her team was “trying to track his weight very carefully” and was “quite concerned

about medication compliance.” Though Z.M. received the medication during his

early infancy, C.M. stopped giving it to Z.M. when he got older (which the

pediatrician had not instructed her to do). Despite missing scheduled visits, Z.M.

was up-to-date on his vaccinations.

At the time of trial, C.M. was seventeen years old. She testified that she had

arranged for Da-Da to pick up Z.M. from day care on October 21, and for Kyerra,

“this girl” “from school,” to do so on November 1. C.M. explained that she had

missed calls from the day care on October 21 because her phone was off, that she

did not always receive calls unless she was at home, and that she learned that Z.M.

was at CFSA only when she got home on that day. Puzzlingly, C.M. maintained that

Da-Da in fact had picked up Z.M. from the day care on October 21. As for the second

occasion on which she did not come for Z.M., C.M. acknowledged that CFSA had 9

picked him up on November 1. She explained, “The second time, the girl did not

pick him up, she was involved in a lot of thing[s], didn’t even pick her own son up.”

She said she learned that Kyerra had not gotten Z.M. only when she arrived home

that evening, despite the repeated calls from the day care.

N.M. testified that she had met Da-Da. She did not know his last name, but

she said that Da-Da had picked up Z.M. from day care in the past, and that C.M. had

asked him to pick up Z.M. from day care on October 21, 2019. N.M. said she herself

could not receive calls or texts that day because her phone was “in and out” and

“dying” and eventually she had to purchase another one. As for November 1, 2019,

N.M. said that C.M. “had someone pick [Z.M.] up and they didn’t.”

While crediting the other witnesses, the magistrate judge found C.M. not to

be credible and N.M. to be biased in favor of C.M. and only partially credible. The

judge found that, twice within a period of ten days, C.M. had been unwilling or

unable to pick up Z.M. herself or to arrange for someone else to do so, leaving him

on both occasions without an appropriate caregiver after the day care closed. The

judge stated, “Even if the mother did ask a friend to pick up the respondent, she

failed to comply with the requirements of the daycare to communicate the alternative

caregiver and add him or her to the pickup list, and the result was the respondent

being left at the daycare twice in a ten day period, resulting in the need to call MPD 10

and CFSA.” C.M.’s seeming indifference, lack of comprehension, and

unsatisfactory explanations were highly concerning, even baffling. 2 The judge

concluded that the District had proved by a preponderance of the evidence that Z.M.

was a neglected child within the meaning of subsections (9)(A)(ii) and (9)(A) (iv) of

D.C. Code § 16-2301, but not within the meaning of subsection(9)(A)(iii).

B. Motion for Review

Following the magistrate judge’s decision, C.M. filed a motion for review by

an associate judge of the Superior Court. 3 C.M. argued that the evidence was

insufficient to support the findings of neglect under either subsection (9)(A)(ii) or

(9)(A)(iv), because her two failures to pick Z.M. up from day care did not show a

lack of care or concern for the child or an unwillingness or inability to assume

parental responsibility.

2 The magistrate judge stated, “I find the mother’s testimony troubling in terms of sitting here today, not understanding that there were two incidents where her child went into CFSA’s custody because she failed to properly plan for someone to pick up . . . I’m not sure that you make plans for someone who you don’t know their last name to pick up this child on two different occasions . . . [it] happening again shortly thereafter, leaves me to believe that she doesn’t really understand the circumstances that she finds herself in . . . .” 3 See D.C. Code § 11-1732(k); Sup. Ct. Gen. Fam. R. (D)(e)(1)(A). 11

When reviewing a magistrate judge’s judgment after a bench trial, an associate

judge acts in an appellate capacity, applying the same standards this court applies in

reviewing trial court decisions. 4 The reviewing judge may not set aside the judgment

“except for errors of law unless it appears that the judgment is plainly wrong or

without evidence to support it.” 5 The burden is on the District in a child neglect

proceeding to prove by a preponderance of the evidence that a child is neglected

within the meaning of D.C. Code § 16-2301. 6 In considering the sufficiency of the

evidence supporting a magistrate judge’s finding of neglect, the reviewing judge,

like this court, “must view the evidence in the light most favorable to the District

and draw every reasonable inference in the District’s favor.” 7

4 In re Baby Boy C., 630 A.2d 670 (D.C. 1993); Weiner v. Weiner, 605 A.2d 18, 20 (D.C. 1992). 5 D.C. Code §17-305(a) (2012 Repl.); see, e.g., In re A.B., 999 A.2d 36, 44 (D.C. 2010). Accordingly, while questions of law are subject to de novo consideration on review, the magistrate judge’s credibility assessments and factual findings must be accepted unless they are clearly erroneous. 6 In re N.P., 882 A.2d 241, 247 (D.C. 2005). 7 In re E.H., 718 A.2d 162, 168-69 (D.C. 1998) (internal quotation marks omitted). 12

In this case, the reviewing judge held the magistrate judge was “plainly

wrong” in adjudicating Z.M. a neglected child under either subsection (9)(A)(ii) or

subsection (9)(A)(iv) for three reasons:

First, the reviewing judge reasoned, “[t]o evaluate the child’s condition for a

neglect finding under subsection (ii), the trial court’s inquiry must go beyond simply

examining the most recent episode, or a single snapshot, and instead must consider

the entire mosaic in making its determination.” 8 But here, the reviewing judge

found, “[t]he trial court did not consider, and nowhere was it presented with, the

‘entire mosaic’ of the child’s care.” Rather, the magistrate judge found Z.M.

neglected based on only “[t]wo incidents in ten days,” which the reviewing judge

characterized as “the very definition of a ‘snapshot’ rather than a mosaic.” The

government failed, the judge held, to shoulder its “burden to show a broader picture

of neglect.”

Second, the reviewing judge stated, “[e]ven assuming these two instances

were serious enough to constitute neglect under D.C. Code § 16-2301, the record

lacks any detail of the child’s condition as a result,” i.e., “the actual effect these

8 Quoting In re P.B., 54 A.3d 660, 666 (D.C. 2012) (internal quotation marks and brackets omitted). 13

incidents had on Z.M.” A “neglect finding under D.C. Code § 16-2301(9)(A)(ii),”

the judge reasoned, “is to remedy the effect on the child, not to punish the mother.”

Third, the reviewing judge concluded that the magistrate judge erred by

finding that Z.M. was a neglected child within the meaning of subsection (9)(A)(iv)

without having evidence and making a finding that C.M. herself (as opposed to the

day care center) had stated an intention to discontinue caring for Z.M. Dismissing

the magistrate judge’s finding that “the mother, by failing to pick her child up,

‘demonstrated an unwillingness or inability to provide care,’” the reviewing judge

said “[t]hat may be a logical inference from her actions, but it is not a stated

intention.”

Accordingly, the reviewing judge granted C.M.’s motion for review and

vacated the magistrate judge’s order. Pursuant to D.C. Code § 16-2317(b)(2), the

court dismissed the neglect petition and ordered Z.M. released to live with C.M.

However, the District filed a timely appeal.

II.

As a threshold matter, the GAL argues that this case is now moot because

Z.M. has been returned home, the Superior Court has closed the neglect case, and

(the GAL asserts) it is in Z.M.’s best interests “for there to be no disruption to Z.M. 14

at this time.” 9 We think the case is not moot, however. “A case is moot if the parties

have presented no justiciable controversy to the appellate court,” and “an event that

renders relief impossible or unnecessary also renders that appeal moot.” 10 That is

not the situation here, though, for in its role as parens patriae the District has a

legally cognizable interest in the proper resolution of its neglect petitions, 11 as

neglect adjudications have not only direct but also collateral consequences that serve

to protect the child. 12 We therefore proceed to address the merits of the appeal.

Although the District argues that it proved Z.M. was a neglected child within

the meaning of both subsection (9)(A)(ii) and subsection (9)(A)(iv), we find it

necessary to consider only the latter provision. 13 The material facts are not in

9 Brief of Appellee Guardian Ad Litem at 15 n.9. 10 Thorn v. Walker, 912 A.2d 1192, 1195 (D.C. 2006). 11 See, e.g., In re J.J.Z., 630 A.2d 186, 194 (D.C. 1993) (“In neglect proceedings, both the court and the Corporation Counsel have a parens patriae role which requires each to act to assure the best interest of the minor child at every stage of the proceeding.”). 12 See In re E.R., 649 A.2d 10, 11 (D.C. 1994) (“[W]e hold that, because the adjudication of neglect has significant potential collateral consequences for the mother, her appeal is not moot.”). 13 See, e.g., In re K.J., 11 A.3d 273, 278-79 (D.C. 2011) (“As we have determined the mother neglected K.J. under the standard as set forth in D.C. Code § 16-2301 (9)(A)(iv) we need not reach a discussion relating to D.C. Code § 16-2301 (9)(A)(ii).”). 15

dispute, and the question turns first and foremost on the proper construction of

subsection (9)(A)(iv). This is a legal question, as to which our review is de novo. 14

In general, our guiding principle is that “[w]e will give effect to the plain meaning

of a statute when the language is unambiguous and does not produce an absurd

result.” 15 “We also consider statutory context and structure, evident legislative

purpose, and the potential consequences of adopting a given interpretation to ensure

that our interpretation is consistent with legislative intent.” 16 Because “[c]ivil

neglect statutes are designed to enable the state to identify and protect children who

are in need of assistance[,] they are remedial and should be liberally construed.” 17

Subsection (9)(A)(iv) provides that a child is a neglected child if (1) the

“parent, guardian, or custodian refuses or is unable to assume the responsibility for

the child’s care, control, or subsistence,” and (2) “the person or institution which is

providing for the child states an intention to discontinue such care.” Thus, the statute

14 In re Ta.C., 237 A.3d 114, 120 (D.C. 2020). 15 Facebook, Inc. v. Wint, 199 A.3d 625, 628 (D.C. 2019) (internal quotation marks and citation omitted). 16 Williams v. Kennedy, 211 A.3d 1108, 1110 (D.C. 2019) (quoting Facebook, 199 A.3d at 628). 17 In re O.L., 584 A.2d 1230, 1233 (D.C. 1990); see also, e.g., In re S.G., 581 A.2d 771, 778 (D.C. 1990) (“Neglect statutes authorizing state intervention on a child’s behalf are remedial, and they should be liberally construed to enable the court to carry out its obligations as parens patriae.”). 16

“merely requires that the parent [refuse or] be unable to care for the child . . . and

that the caretaker declare the intent to so discontinue.” 18 The specificity of

subsection (9)(A)(iv)’s definition of a neglected child contrasts with the more

general and much broader definition in subsection (9)(A)(ii). Similarly, subsection

(9)(A)(iv) does not require proof of abandonment, which is the basis for a neglect

finding under subsection (9)(A)(i). 19

We do not find the two-part test of this statute to be ambiguous, and we have

no reason to accord it a grudging interpretation. The reviewing judge apparently

misread the second part of the statutory test as requiring a finding that the parent be

found to have stated an intention to discontinue caring for the child. Plainly,

subsection (9)(A)(iv) applies when a person or institution that is caring for the child

in lieu of the parent expresses such an intention, and the parent then refuses or is

unable to assume the responsibility.20 And to the extent the reviewing judge also

18 In re W.T.L., 825 A.2d 892, 894 (D.C. 2002). 19 In pertinent part, D.C. Code § 16-2301(9)(A)(i) defines a “neglected child” as a child “who has been abandoned . . . by his or her parent, guardian, or custodian.” 20 See In re K.J., 11 A.3d 273, 278 (D.C. 2011) (holding incarcerated mother neglected child under § 16-2301(9)(A)(iv) when she did not make any arrangements for child after grandmother’s words and conduct indicated intention to discontinue care); In re W.T.L., 825 A.2d at 894 (holding mother neglected child where she was unable to care for him due to homelessness and drug addiction, and caretaker stated her intention to discontinue caring for the child). 17

understood subsection (9)(A)(iv) to require a showing of an adverse impact on the

child, that too was a misreading of a statute meant to protect children from harm.

There is no such requirement in subsection (9)(A)(iv). It is not inapplicable merely

because CFSA and the MPD provide a safety net for a child who otherwise would

have been in harm’s way.

Relatedly, a concern that the magistrate judge rested the finding of neglect on

discrete conduct constituting a mere “snapshot” is misplaced; subsection (9)(A)(iv)

makes discrete conduct the very basis for such a finding. Our statements that the

court in a neglect case generally should consider “the ‘entire mosaic’ of the child’s

history and experience relevant to the allegations of neglect” 21 take into account

which statutory definition of a neglected child is invoked. As we discuss below, the

magistrate judge fulfilled this obligation in determining that Z.M. was a neglected

child within the meaning of subsection (9)(A)(iv). 22

21 In re Ta.C., 237 A.3d 114, 120 (D.C. 2020) (emphasis added). 22 A broader inquiry into the neglected child’s history and experience may well be necessary at the dispositional stage of a neglect proceeding. See D.C. Code § 16-2320 (2021 Supp.) (providing for a range of dispositional alternatives to be considered in light of the child’s best interest and stating that “[i]t shall be presumed that it is generally preferable to leave a child in his or her own home”). No issue is before us in this appeal regarding the magistrate judge’s dispositional placement of Z.M. in foster care after he was found to be a neglected child. 18

We do not construe subsection (9)(A)(iv) to require a finding of neglect

whenever the evidence shows that a parent was unable to assume immediate

responsibility for a child whose substitute caregiver stated the intention to

discontinue care, no matter the reason or surrounding circumstances. For example,

it is not enough for the government merely to prove that on a few occasions, a parent

was momentarily unavailable to assume responsibility for a child whose substitute

caregiver was ceasing care. Paragraph (iv) requires more. To establish a prima facie

case of neglect under paragraph (iv), the government must present evidence that a

parent was unable or refused to assume the responsibility of parenting the child —

not simply that the parent was unavailable due to mere tardiness, mistake, or

circumstances beyond the parent’s control (such as getting in an accident or stuck in

traffic on the way to pick up a child). Thus, as both a common sense reading of

paragraph (iv) dictates and the legislative history of the provision confirms, the court

must consider the surrounding circumstances and reasons for the parent’s

unavailability, as well as its duration, persistence, and recurrence. For example,

where the evidence shows there was a reasonable explanation or satisfactory excuse

for an isolated instance of unavailability, such as unforeseen circumstances beyond

an attentive and concerned parent’s control or a good faith mistake by the parent, the

government presumably will be unable to, and will not seek to, establish a prima

facie case of neglect under subsection (9)(A)(iv). A trial court’s consideration of the 19

reasons for a parent’s unwillingness or inability to assume responsibility of a child

when the surrogate caretaker declines to continue shouldering that responsibility

generally fulfills its obligation to consider the “mosaic” relevant to the alleged

neglect.

The Council clearly intended to require such consideration when it amended

the statutory definition of a neglected child in D.C. Law 2-22, the Prevention of

Child Abuse and Neglect Act of 1977, to add what is now subsection (9)(A)(iv).

The same legislation also enacted a companion provision, D.C. Code § 4–

1301.05(e), prescribing police procedures for responding to reports of children “left

alone or without adequate supervision.” 23 The latter statute authorizes the police in

such circumstances to transport the child to CFSA, with the proviso that doing so

“shall not be considered a taking into custody as described in § 16-2309.” 24 As the

Committee report on the legislation explained, “[t]his section allows the Police to

step in and take the child away if necessary for his safety, but not be required to

follow the formal neglect petition procedure” each time they transport an

23 D.C. Code § 4–1301.05(e). 24 Id. 20

unsupervised child to CFSA. 25 The Committee report emphasized that, while

neglect petitions should be filed “where parents refuse to cooperate or where it is

essential to protect the welfare of the child,” 26 immediate return of the child to the

family without instituting neglect proceedings was justified in many cases.

Illustratively, “[t]he parent may have been in an accident, or the baby-sitter failed to

arrive as scheduled.” 27

By its plain terms, subsection (9)(A)(iv) applied to the facts found by the

magistrate judge in this case. The day care center was providing for Z.M.’s “care”

within the meaning of the statute. It had stated and informed C.M. of its “intention

to discontinue such care” at the end of each day at closing time. (The day care also

so informed the police and CFSA.) C.M. failed to “assume the responsibility for

[Z.M.’s] care” when she twice failed to pick him up herself from his day care center

before it closed or to make suitable arrangements for another responsible person to

do so. In her unexplained absence following the day care’s discontinuance of care

for the night, the police and CFSA had to step in to take care of Z.M. And as to

25 Council of the District of Columbia, Report of Committee on Human Resources and Aging on Bill 2-46, at 4 (Mar. 30, 1977) (emphasis added). 26 Id. 27 Id. 21

whether C.M.’s failures evinced her inability or refusal to fulfill her parental

responsibility, the government presented (and the magistrate judge appropriately

considered) the relevant surrounding circumstances and reasons C.M. offered for her

failure to pick up Z.M.

As the government’s evidence revealed, this was not a benign case in which

the parent had a reasonable and credible excuse for briefly leaving her child alone

and the problem was unlikely to recur. Rather, trial testimony established that on

October 21, the first day C.M. failed to pick up Z.M., she did not answer numerous

calls from the day care center regarding her child and remained unreachable for

hours. The only backup care provider preauthorized to pick up Z.M. from day care,

C.M.’s mother N.M., was likewise unreachable and did not undertake to pick up

Z.M. in C.M.’s stead. (C.M. never claimed she had relied on N.M. to do so.) When

C.M. finally arrived at CFSA after 9:00 p.m. on October 21 to get Z.M., she admitted

she had been smoking marijuana that evening. She did not proffer a reasonable

explanation for her non-appearance and unavailability. C.M. also could not provide

the name or contact information of the friend she said she had asked to pick up her

eighteen-month-old child, and could not substantiate her claim they made such an

arrangement by text messages. Da-Da was not on the day care center’s list of

persons to whom Z.M. could be released, C.M. had not advised the day care that Da-

Da would be coming for Z.M. in her place, and she made no effort to confirm he had 22

successfully collected her child and gotten him safely home. If C.M. really was

relying on Da-Da, which the magistrate judge doubted, the arrangement in itself

bespoke irresponsibility and raised red flags.

Much the same thing happened again just ten days later. After having agreed

with CFSA to implement a safety plan for Z.M. (a plan with which C.M. apparently

did not comply), C.M. again left her child at day care past closing time, again was

unresponsive, again did not make a reasonable alternative arrangement for Z.M. to

be picked up, and again had no satisfactory excuse.

C.M.’s testimony at trial did nothing to alleviate the concerns her behavior

raised. The magistrate judge understandably found it “troubling” that C.M.

professed to believe Da-Da actually had gotten Z.M. from the day care on October

21, did not seem to realize she had failed not once but twice to make proper

arrangements for her child to be picked up, and did not “really understand the

circumstances that she finds herself in.” Significantly, too, the District and GAL

witnesses informed the magistrate judge that cooperation and communication with

C.M. had been difficult and concerns remained about Z.M.’s care.

We hold that the District presented sufficient evidence to support the

magistrate judge’s finding that Z.M. was a neglected child within the meaning of

D.C. Code § 16-2301(9)(A)(iv), and that the magistrate judge did not err or abuse 23

her discretion by failing to consider the relevant context of C.M.’s failure to “assume

the responsibility” for Z.M.’s care when his day care center “state[d] an intention to

discontinue such care.” 28

III.

For the foregoing reasons, we reverse the judgment of the Superior Court and

reinstate the magistrate judge’s finding of neglect.

So ordered.

DEAHL, Associate Judge, dissenting: I respectfully dissent and would affirm

the Superior Court’s judgment that the evidence does not support a finding of

neglect. In reaching its contrary conclusion, the majority adopts a far broader

reading of D.C. Code § 16-2301(9)(A)(iv) than this court has ever endorsed. It is an

interpretation that is both at odds with the statutory text and that introduces profound

uncertainty into this court’s neglect jurisprudence.

A parent does not “refuse[] . . . to assume responsibility for the[ir] child’s

care” by failing to live up to that responsibility on one or two occasions. Rather, to

28 We express no view on the magistrate judge’s determination that Z.M. also was a neglected child within the meaning of D.C. Code § 16-2301(9)(A)(ii). 24

say somebody refuses to assume a responsibility is to say that they have indicated a

lack of intention to even attempt to perform it going forward. That is no doubt why,

in the forty-five years since its enactment, we have never previously confronted the

question of whether a parent refuses to assume parental responsibility under

(9)(A)(iv). It is invariably an obvious and uncontested point; the parent who refuses

to assume responsibility has no cause to contend otherwise. The statutory phrase

refers to somebody who indicates an intention to desert their child, not an “isolated

instance of unavailability,” as the majority now treats as a presumptive case of

neglect under this provision. Ante at 18.

To avoid the absurd results of that standalone test, the majority next layers a

totality of circumstances test onto (9)(A)(iv), requiring a court to “consider the

surrounding circumstances and reasons for the parent’s unavailability, as well as its

duration, persistence, and recurrence.” Ante at 18. The majority needs this gloss—

which it derives not from the statutory text but from the legislative history of a

different provision in an entirely different Title—only because it first conflates a

moment’s unavailability with a refusal. But the court’s two-step inquiry is contrary

to the plain text of (9)(A)(iv), which the majority in one breath acknowledges

“makes discrete conduct the very basis” for a neglect finding, only to import a

totality of circumstances test in its next breath. Ante at 17. The majority also shifts

the burden to the momentarily absent parent to justify themselves and provide a 25

“reasonable explanation or satisfactory excuse for an isolated instance of

unavailability,” ante at 18, in contravention of our longstanding precedents that it is

the government’s burden to demonstrate neglect.

That brings me to my jurisprudential concern. The totality of circumstances

test that the majority now reads into (9)(A)(iv) already inheres in our robust body of

precedents informing what constitutes a lack of “proper parental care” under

(9)(A)(ii). I see the majority as building an off-ramp from those precedents, and it

leads to an uncharted wilderness. Where the government does not or cannot meet

the standards we have refined over many decades under (9)(A)(ii), it now has a

workaround and can test the bounds of this new and uncertain path, so long as it can

show a moment’s unavailability (as is routinely the case in (9)(A)(ii) cases). I cannot

predict where this new road leads because its bounds are not marked by any

principles or statutory text. I see no justification for starting down it.

A.

Begin with the text. Subsection (9)(A)(iv) includes, within the definition of a

neglected child, one whose “parent, guardian, or custodian refuses or is unable to

assume the responsibility for the child’s care” after another “providing care for the

child states an intention to discontinue such care” (emphases added). The majority 26

has misinterpreted each of the highlighted terms. At the outset, like the magistrate

judge and the government before it, the majority never tells us whether, in its view,

C.M. refused to assume responsibility for Z.M., or instead was unable to do so. By

process of elimination, I can only assume the former. There is no question that C.M.

was able to provide care for Z.M. Nobody contends she suffered from some mental,

physical, or other incapacity that left her unable to perform the task. Our only

precedents interpreting (9)(A)(iv) in the decades since its enactment concerned

whether a parent was “unable” to provide care, and in both cases the parents were

incarcerated when another surrogate caregiver discontinued care. See In re K.J., 11

A.3d 273, 278 (D.C. 2011) (mother was unable to care for child while incarcerated

and did not arrange care for child within thirty days of grandmother discontinuing

care); In re W.T.L., 825 A.2d 892, 893-94 & n.3 (D.C. 2002) (mother was

“repeatedly incarcerated,” and otherwise “homeless,” and “failed even to contact the

caretaker” who had discontinued care). They do not resemble this case.

That leaves “refuses . . . to assume the responsibility for the child’s care,” a

phrase we have never previously interpreted because it is so rarely a bone of

contention. One would ordinarily say as a matter of plain language that a parent who

sincerely expresses a willingness to assume care for their child and is able to do so

has not refused to assume responsibility. They have perforce assumed responsibility

for the care of their child, and whether they adequately carry out their responsibilities 27

is another matter entirely (concerning a different provision of the neglect statute,

(9)(A)(ii), see infra Part II). 1 C.M.’s parenting failures, while no doubt serious and

worthy of investigation, did not amount to a refusal to assume care for Z.M in any

ordinary sense of the phrase.

Yet, I take the majority to hold that C.M. refused to assume responsibility for

Z.M.’s care when she failed to pick Z.M. up by the close of the daycare’s pickup

window on each of two discrete instances. Unlike the statute—which treats a refusal

to assume parental responsibility as neglect, full stop—the majority treats C.M.’s

tardiness only as presumptively neglectful, triggering a burden-shift whereby C.M.

must provide an adequate explanation for her momentary unavailability to avoid a

finding of neglect. Ante at 17-18. In a nutshell, the majority first strips the statutory

phrase of its plain meaning. Then, to save itself from the resulting absurdities of that

initial misstep, it supplants the statutory term with its own atextual totality of

circumstances test for assessing whether the reasons for the parent’s momentary

1 I agree with the majority that “(9)(A)(iv) does not require proof of abandonment, which is the basis for a neglect finding under subsection (9)(A)(i).” Ante at 16. Unlike (9)(A)(i), 9(A)(iv) is anticipatory. It permits a finding of neglect before abandonment occurs, where one caretaker states an intention to discontinue care (i.e., to abandon) and an alternate potential caretaker cannot or indicates they will not take on the parenting role. When (9)(A)(iv) is not being invoked in such an anticipatory way, then (9)(A)(i) provides the more relevant framework into actual abandonment. 28

absence are adequate. And while the majority describes those two steps as going to

a mere “prima facie” case of neglect under (9)(A)(iv), it never tells us what more is

needed. Its apparent answer is that nothing more at all is needed, so that what it

guises as a “prima facie” case is in fact a conclusive one.

I see it differently. In order to refuse to assume a responsibility, a person

must—either expressly or through their conduct 2—indicate a lack of intention to

undertake the task going forward. See refuse, Webster’s Third New Int’l Dictionary

1910 (2020) (“to show or express a positive unwillingness to do or comply with (as

something asked, demanded, expected)” (emphasis added)). It is not a synonym for

a moment’s unavailability, even if that unavailability is unexplained. Nor does it

mean immaturity or even irresponsibility. Consider an example: if I am tasked with

taking out the trash every night, and remember to do so nine out of every ten nights,

have I refused to assume responsibility for taking out the trash? I don’t think so; not

in any ordinary sense of the phrase, even if I have no good reason for my occasional

2 I agree with the majority in the limited regard that one can refuse to assume a responsibility without expressly saying so. A refusal to assume care for a child may be inferred, in the absence of an express refusal, where there is a persistent and enduring course of conduct demonstrating that the parent has no intention of even attempting to carry out their responsibilities. One or two failures to pick up a child from daycare on time does not come particularly close to showing that. It is sufficient cause to investigate whether Z.M. lacks proper parental care under (9)(A)(ii), but it does not amount to a refusal to assume responsibility under (9)(A)(iv). 29

oversights. Perhaps somebody aggrieved by my lapses might hyperbolically

describe me as refusing to assume my responsibility for effect. But if I have accepted

the responsibility without objection and attempt to carry it out, then dropping the

ball now and then is not a refusal to assume it. People are imperfect in carrying out

their responsibilities all of the time. Only when their lapses are so persistent that

they rise to the level of recalcitrance may they fairly be described as refusing to

assume those responsibilities. A lapse (or two) is not recalcitrance. 3 To the extent

there is any ambiguity in what it means to refuse to assume responsibility to care for

a child, the rest of the provision supports my understanding of that phrase.

In order to fit circumstances like these into (9)(A)(iv), the majority also

misconstrues the word “discontinue.” The question of refusal comes into play only

after “the person or institution which is providing for the child states an intention to

discontinue such care.” D.C. Code § 16-2301(9)(A)(iv) (emphasis added). A

3 The majority asserts that the neglect statute is remedial in nature, and should therefore be construed broadly. Ante at 16 (citing In re S.G., 581 A.2d 771, 778 (D.C. 1990)). That does not help the majority’s cause because even the broadest reading of subsection (iv) would not apply to these facts. Moreover, the entire rationale for reading the neglect statute broadly is to promote “the best interest of the child,” id., a goal the majority does not advance. In this case, the guardian ad litem, who is tasked with advocating for the best interest of the child, defends the Superior Court’s judgment that there was no neglect in this case. While we are of course not bound by the guardian ad litem’s position, I am unaware of any prior case in which we have reversed a Superior Court’s judgment that a child was not neglected despite the child’s representative defending that judgment on appeal. 30

daycare’s daily closure is not a discontinuation of care. To “discontinue” care means

to “end the operations or existence” of that care, such that a student’s expulsion

would mark a discontinuation of care, but the end of the school day does not.

Webster’s Third New Int’l Dictionary 646 (2020). In illustrating the meaning of the

word “discontinue,” Webster’s Dictionary gives examples of a “discontinued bus

service between two points,” a “school [that] was discontinued after a sharp drop in

enrollments,” and a student who “found it necessary to [discontinue] her course in

Spanish.” Id. In each case, the word “discontinue” refers to the indefinite cessation

of the activity, not a scheduled recess. A bus line is not discontinued during its off-

hours; a school is not discontinued at the end of each day; and a student does not

discontinue her course in Spanish at the end of each period of study.

Watering-down the word discontinue in this way erases the essential bounds

of (9)(A)(iv). Before today, we have applied (9)(A)(iv) only in situations where a

child’s primary caretaker truly discontinued care, meaning they indicated they were

done providing care altogether. See In re K.J., 11 A.3d at 277 (grandmother told

child “she could not come back to her home”); In re W.T.L., 825 A.2d at 894

(surrogate caretaker was “unable to” care for child “because of the demands of

rearing her own children”). In those situations, we have correctly considered the

parent’s persistent and enduring (not momentary) inability to step in and provide

care, over the course of many weeks and months, as satisfying (9)(A)(iv)’s standard 31

for neglect. See, e.g., In re K.J., 11 A.3d at 278 (upholding neglect finding under

(9)(A)(iv) where mother “did not make any arrangements for K.J. during the thirty-

day CFSA investigation” which followed the discontinuation of grandmother’s

care). We have never applied (9)(A)(iv) to anything resembling a daycare’s nightly

closures because a nightly closure is not a discontinuation of care. It is only by

misreading the word discontinue to mean a moment’s break in care that the majority

lays the groundwork for holding that a moment’s unavailability amounts to a refusal

to assume care. It misreads the statutory text in both respects, each building on the

other.

The majority’s reading of the word discontinue also renders the statute

incompatible with any plausible view of what the legislature intended. Why would

it matter to any legislator whether or not a refusal to assume care was preceded by

another’s indication that they would discontinue care (as the majority reads those

terms)? That seems a perverse scheme. Consider two scenarios: the parent who

simply walks out of the house and leaves their young child unattended for an hour,

and the parent who employs a babysitter and arrives home an hour after the

babysitter’s stated departure time. One might naturally think the parent in the second

scenario is the less blameworthy of the two, given that the babysitter might

begrudgingly stay beyond their stated departure time (whereas the first child is 32

definitely unattended for that hour). 4 But not under the majority’s approach, under

which only the second has been neglectful under (9)(A)(iv), while the parent who

simply walked out for an hour would not be. I can conceive of no good explanation

for that incongruous result or why we would think the legislature intended it.

Today’s holding is also at odds with other provisions in the neglect statute.

For instance, subsection (9)(A)(vii) instructs that a neglected child is one “who has

resided in a hospital located in the District of Columbia for at least 10 calendar

days . . . despite a medical determination that the child is ready for discharge from

the hospital,” but only if the parent “has not taken any action or made any effort to

maintain a parental, guardian, or custodial relationship or contact with the child”

(emphasis added). The majority’s interpretation of (9)(A)(iv) swallows (9)(A)(vii)

whole. See Corley v. United States, 556 U.S. 303, 314 (2009) (citations omitted) (It

is “one of the most basic interpretive canons” that a statute “should be construed so

that effect is given to all its provisions, so that no part will be inoperative or

superfluous, void or insignificant.”). Contrary to the plain text of (9)(A)(vii), it

makes no difference if the child has been in the hospital fewer than ten days or if the

parent has made substantial but unsuccessful efforts to retrieve their child. So long

4 Note that the majority’s test would seem to endorse a neglect finding even when the babysitter does in fact stay beyond their stated departure time. 33

as the hospital determines that the child is ready for discharge and thereby indicates

an intent to discontinue care, the majority reasons that the parent’s momentary

unavailability on minute one of day one after that indication makes out a case of

neglect under (9)(A)(iv), rendering (9)(A)(vii) irrelevant. Perhaps more importantly,

(9)(A)(vii) provides insight into what degree of parental absenteeism the legislature

believes amounts to per se neglect. Ten days without “any action or . . . effort to

maintain a parental” relationship is the answer provided by (9)(A)(vii), making the

majority’s answer of several minutes or hours as to (9)(A)(iv) incompatible with the

statutory text.

B.

I agree with the majority that “discrete conduct” is “the very basis” of a

neglect finding under (9)(A)(iv). Ante at 15. A finding of neglect is not only

justified but required any time a parent “refuses . . . to assume the responsibility for

the child’s care” after another caretaker “states an intention to discontinue such

care.” The fact that such a refusal amounts to neglect, per se, is further evidence still

that the legislature meant “refusal” to connote something quite serious, along the

lines I have explained above, and not in the more trivial sense the majority adopts.

See generally In re A.H., 842 A.2d 674, 684 n.16 (D.C. 2004) (government’s burden

in neglect proceedings “is commensurate with the gravity of the petition for 34

intervention in the lives of parent and child”). The majority’s contrary view leaves

it in a conundrum. It would be untenable to say that a parent neglects a child simply

by being late to pick them up from school, daycare, or the babysitter; what parent

has not been guilty of that? Thus, the majority retreats from its promise to focus on

discrete conduct and invents a new totality of circumstances “step two” of the

inquiry, and assures that the government will be unable to and “presumably . . . will

not seek to, establish” neglect in any case where there is “a reasonable explanation

or satisfactory excuse for an isolated instance of unavailability.” Ante at 18. The

majority’s presumption is unwarranted, and its totality of circumstances test just

layers another atextuality into its framework.

The majority instructs that when a parent is momentarily unavailable a

government official or court “must consider the surrounding circumstances and

reasons for the parent’s unavailability, as well as its duration, persistence, and

recurrence” in order to ascertain whether the parent can offer a “reasonable

explanation or satisfactory excuse.” Ante at 18. The court gleans that test from (1)

“common sense,” which more directly counsels against the majority’s reading of the

statutory terms in the first place, and (2) the legislative history of D.C. Code

§ 4-1301.05, which contains not so much as a cross-reference to (9)(A)(iv), and is 35

entirely unilluminating on the question before us except as support for the view that

some minutes or hours of parental unavailability does not equate to neglect. 5

Finally, the majority’s two-step approach to (9)(A)(iv), unlike any other

provision of § 16-2301(9)(A), shifts the burden to the parent to demonstrate the

absence of neglect. Once the government has shown a moment’s unavailability, the

majority places the onus on the parent to rebut that presumptive showing of neglect

by offering “a reasonable explanation or satisfactory excuse . . . such as unforeseen

circumstances beyond an attentive and concerned parent’s control or a good faith

mistake by the parent.” Ante at 18. That burden-shifting regime contravenes the

countless precedents in which we have held that it is the government’s burden to

demonstrate neglect. See, e.g., In re B.C., 257 A.3d 451, 461 (D.C. 2021); ante at

11 & n.6 (citing In re N.P., 882 A.2d 241, 247 (D.C. 2005)).

5 The majority reads the statutory history of § 4-1301.05, concerning how police respond to reports of suspected neglect, as support for the proposition that a child who is “left alone or without adequate supervision” is not necessarily neglected. Ante at 19-20 & n.23 (citing Council of the District of Columbia, Report of Committee on Human Resources and Aging on Bill 2-46, at 4 (Mar. 30, 1977)). I agree with that much. But that is reason to reject the majority’s statutory reading from the outset, not a reason favoring its two-step approach of diluting the statutory test, treating it as a presumptive case of neglect, and then supplementing it with a totality of circumstances test. It is only by assuming that the Council shares its view that a moment’s unavailability is a presumptive case of neglect that the majority discerns some support for its view in the legislative history; once stripped of that assumption, even this tangential legislative history undercuts the majority’s view. 36

That brings me to my jurisprudential concern. We have a well-developed

body of precedents analyzing when a child is “without proper parental care or

control” under the more regularly invoked provision of the neglect statute, D.C.

Code § 16-2301(9)(A)(ii). Unlike (9)(A)(iv), which targets discrete conduct,

(9)(A)(ii) is geared toward a totality of circumstances by its very terms; it asks

whether the child is “without proper parental care.” In interpreting that broad

statutory phrase, we have explained that “‘the trial court’s inquiry must go beyond

simply examining the most recent episode,’ or a single snapshot [in time], and

instead ‘must consider the entire mosaic in making its determination.’” In re P.B.,

54 A.3d 660, 666 (D.C. 2012) (first quoting In re T.G., 684 A.2d 786, 788 (D.C.

1996), then quoting In re N.P., 882 A.2d at 250) (emphasis added). Because we

already have a well-worn inquiry for determining whether a child is without proper

parental care under (9)(A)(ii), the majority’s creation of an alternative totality of

circumstances test under (9)(A)(iv) demands some justification that it never

provides.

For starters, the majority does not tell us what its new test is indexed to beyond

any particular judge’s sensibility of what ought to be deemed neglect. Put another

way, it does not tell us what bottom-line question the totality of circumstances speaks 37

to under (9)(A)(iv). I see two possibilities. Perhaps it is entirely duplicative of the

(9)(A)(ii) inquiry, and the new totality of circumstances test under (9)(A)(iv) is also

geared toward discerning whether the child is without proper parental care. If that

is the case, then why hoe this new row? The only purpose of that would be to

circumvent our (9)(A)(ii) precedents in those cases where the government cannot or

has not made the showing required, as occurred here, where the government offered

little more than a snapshot of the care provided for Z.M. See, e.g., In re T.G., 684

A.2d 786, 789 (D.C. 1996) (reversing a neglect finding based on “deplorable” living

conditions observed on a single day, noting that “[n]ot enough focus . . . was centered

on the physical or mental condition of the children overall”); In re K.M., 75 A.3d

224, 233-34 (D.C. 2013) (finding evidence of neglect “insufficient” where evidence

of parent’s delusional disorder was unaccompanied by evidence of “how likely it

actually was that [potential] harms would befall” the child).

The more likely explanation is that the majority is doing something else

entirely and jettisoning a hallmark of our neglect jurisprudence that “the relevant

focus for the court . . . is the child’s condition, not the [parent’s] culpability.” 6 In re

6 As further support that this is the majority’s chosen path, it says that “to the extent the reviewing judge also understood subsection (9)(A)(iv) to require a showing of an adverse impact on the child, that too was a misreading of a statute meant to protect children from harm. There is no such requirement in subsection (9)(A)(iv).” Ante at 16. 38

E.H., 718 A.2d 162, 169 (D.C. 1998) (quoting In re B.C., 582 A.2d 1196, 1198 (D.C.

1990) (per curiam)). If that is the case, the majority has opened up a brand-new

avenue for the government to intervene in a parent-child relationship without first

showing that the child is actually at any risk. See In re A.H., 842 A.2d at 684 n.14

(“State intrusion in the parent-child relationships is, presumptively, a last resort.”).

As we have often stated, the purpose of the neglect statute is to protect at-risk

children, not to punish blameworthy behavior by parents. See, e.g., In re T.T.C., 855

A.2d at 1119 (“[T]he relevant focus for the court . . . is the children’s condition, not

the [parent’s] culpability . . . because the purpose of the neglect statute is to protect

the child from harm.”). 7 That is why our precedents interpreting (9)(A)(iv)’s

neighboring provisions focus on the condition of the child, consistently requiring a

holistic showing that the child’s welfare is actually at risk. In re A.H., 842 A.2d at

685 & n.16 (it is the government’s “responsibility in the first instance to take the

trouble to investigate the overall family situation and present an adequate evidentiary

picture”).

7 In In re T.T.C., we read D.C. Code § 16-2301(9)(A)(iii) to require actual risk to the child, even though that requirement appears nowhere on the face of the provision. See 855 A.2d at 1121. In that case, we said that an incarcerated father’s failure to provide the appropriate legal protections for the person he chose as his children’s caretaker only became neglect when the children’s drug-addicted mother appeared on the scene to reclaim custody. The decisive factor was not the father’s culpability, but the effect of his omission on the purportedly neglected children. 39

It is not clear to me which of these two ill-advised paths the majority has

started down. I see both of them as substantial departures from our precedents and

as contravening the text of (9)(A)(iv). I therefore dissent.