DC COURT OF APPEALS REVERSES CONVICTION DUE TO UNCORROBORATED CONFESSION:

The Court of Appeals recently in IN RE KA (No. 10-FS-1614, Feb. 2013) reversed K.A.’s weapons possession charges focusing on the governing legal principles of convictions based on confessions alone and the necessary corroboration in support thereof.

The Court reiterated the long established Supreme Court legal principle, which requires confession to be corroborated in order to “forestall convictions based on extrajudicial confessions the reliability of which is a matter of suspicion.”

Essentially in cases were conviction is based solely on a confession, self made statement, the government is required to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement, such as forensic evidence or other independent testimony.   The rule was established also to prevent false confession “induced by some inner compulsion” and to preserve the reliability and the integrity of the criminal system.

In this case the police officers entered an apartment occupied by K.A., his brother, and their grandfather on an anonymous tip that an individual with a certain description possessed weapons in the apartment.  There were four other individuals in the apartment at the time.  The grandfather allowed search of the apartment and underneath his mattress two weapons were discovered.  The grandfather was handcuffed and due to an independent medical emergency an ambulance was called to assist the grandfather who was diabetic.  While the grandfather was handcuffed in fragile health, the officers encouraged KA to confess to the ownership of the weapons to spare his grandfather.  Eventually KA reluctantly admitted ownership by making a conclusory  statement “man, they my guns. Take those things off him.”  The confession was later repeated at the police station.  However the Court did not find the confession to be reliable or corroborated independently.  The Court reasoned that circumstances surrounding the confession were not sufficiently corroborative or reliable.   The confession was made after repeated questioning of the officers while they had the medically fragile grandfather in handcuffs.  The statement alone was conclusory.  KA only described basis description color and shape of the weapons not make and model or the location there were to be found.  The police officer had let another individual –who fit the description of the owner of the weapons based on the anonymous tip — leave the apartment and had not detained him.  This was an important fact as the description provided by the tipster did not match KA.  The government did not provide any other corroborating evidence such as prints, or other supporting forensic evidence.

The Court concluded in stating: while the corroboration rule does not require that the government prove all of the elements of the crime through independent evidence, it does require that the independent evidence be sufficient to make the confession worthy of an inference of truth.  Here the confession was made in an inherently unreliable circumstances, produced by a significant amount of police pressure and what we reasonably conclude was K.A.’s desire to spare his visibly ill grandfather a criminal charge and a trip to jail.

The Law Offices of David Stein specializes in complex criminal litigation in which at times subtle legal nuances can be the difference between an acquittal or a conviction.

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THE DC COMPREHENSIVE IMPAIRED DRIVING ACT: DC DWI/DUI LAWYER

This blog highlights some of the drastic changes to the drinking and driving law in the District.  The DC Comprehensive Impaired Driving Act of 2012 increased significantly (doubled) the penalties for drinking and driving and also increased the mandatory minimum sentences as such.

Accordingly the first offense conviction on DUI/DWI now carries the same penalties as most criminal misdemeanors, a maximum of: 180 days/$1000 fines.

The minimum statutory imposed incarceration even for the first time offenders was also doubles based on the blood alcohol level/content commonly referred to as BAC.  That is a BAC of 0.08 or more is considered per se intoxication and will results in a DWI or/and a DUI charge.  If the BAC level on the first offense is between 0.20-.25 there is a mandatory 10 days incarceration.  Between 0.25-.30 you will be facing 15 days mandatory time and more than .30 — 20 days on a first offense.

If there is a prior drinking and driving conviction in this or any other jurisdictions, then the penalties would increase to a one year incarceration and fines between $2500-$5000 and 10 days mandatory minimum.  If the BAC between 0.20-.25, 15 days mandatory time, 20 days if BAC is between 0.25-.30 and 25 days of time if BAC is .30 or more.

Two prior convictions then the penalties even increase significantly higher: fines between $2500-$10,000, one year incarceration and 15 days of mandatory sentence with increase of 20 additional days of mandatory time if the BAC is between 0.20-.25, and 25 days for BAC between .25-.30, and an additional 30 days of mandatory time if BAC more than 0.30.

Additional 30 days of mandatory to the penalties enumerated in the paragraph above if there are three prior convictions.

The penalties for Operating while impaired (OWI), the lesser included offense to DUI, did also double.  First offense: $500 fine and maximum of 90 days.  Second offense: fines no less than $1000, and no more than $2500 with the maximum incarceration increased to one year and mandatory five days of jail time.  With two or more OWI convictions penalties increase to fines no less than $1000 and no more than $5000 and incarceration no more than one year, with the mandatory jail time increased to 10 days.

OWI is defines as “person’s ability to operate or be in physical control of a vehicle is impaired by consumption of alcohol….”

If the BAC at the time of arrest is less than 0.50 then there is a rebuttable presumption that the person operating the vehicle was not under the influence of alcohol.  If the BAC is between 0.50-0.80 there is a prima facie proof and presumption that the person was under the influence (DUI).  Thus BAC at 0.50 or more would result is an OWI or DUI charge and more than 0.80 (per se intoxication) a DWI charge.  If there are no chemical test results and a refusal, then the officer upon observation and the field sobriety test results may charge both DWI and DUI or DUI and OWI.

The chemical test to determine alcohol level may be by blood, urine or breath.  An official copy of the results by the technician is admissible as substantive evidence without the collaboration or testimony of the technician or the police officer.  Provided that there is a certification attached thereto with the breathalyzer attesting that within the past three months the machine was tested and found to be accurate, and moreover, the test was conducted in accordance with the manufacturer’s standards.  With blood and urine tests, certification by the chief toxicologist that the test is accurate.  The testimony of the technician or the police officer certifying test results can be compelled as long as it is requested in writing within 15 days prior to the scheduled trial date, and it is articulated why the test results is inaccurate.

The new law makes the District one of the toughest jurisdictions when it comes to drinking and driving.  The statute also ties the hands of judges as the minimum sentences are articulated clearly to be mandatory and not discretionary.

Thus the chemical test results and validity thereof becomes a major factor.  Due to the general unreliability of the breathalyzer tests, and the challenge-ability of the results, more police officer are conducting blood and urine tests, which are traditionally more accurate and reliable.

There is no replacement however for impeccable trial skills in cases as such.  Before the amendment to the statute, a guilty verdict would have resulted in probation whereas the same case now most likely will result in a mandatory jail time.

The Law Offices of David Stein is the premier Washington DC based boutique litigation firm.  Litigation comes to us naturally and solutions abound.  Contact our offices today for a case evaluation.

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THIRD PARTY CUSTODY: LEGAL STANDARD – RECENT DC COURT OF APPEALS CASE

There is rebuttable presumption that custody with a parent is in the best interests of the child unless proven otherwise by clear and convincing evidence.  In another word, there is a parental presumption of fitness that can only be overcome by clear and convincing evidence to the contrary.  This is also a constitutionally rooted and protected principle.

In the District, a third party may file for custody of a minor child – however, the legal standard used – similar to adoption and termination of parental rights – is as stated: by clear and convincing evidence.

Thus with the third party custody complaints, the presumption favors parental custody.  Thus it is in the children’s best interests to be raised by their parents rather than by a third party and unless the court can articulate by — clear and convincing evidence — that the parents are unfit, the parental custody presumption is not rebutted.

A third party may file a complain for custody of a child if:

1) The custodial parent for the past three years consent to the third party complaint; or that:

2) The third party has lived in the same household as the child for the past 4 months out of 6 preceding filing of the action, and has been the primary provider of food, shelter, clothing, and care of the child or;

3) That the third party resides with the child under some exceptional circumstances in which relief under the third party custody statute is required to prevent harm to the child granted the complaint for custody details reasons thereof.

A parent may move to dismiss a third party complaint if the third party has committed an intra-family offense or if the parents allege that one has been committed.  The court will schedule a hearing within 30 days to address and to investigate both the validity of the parental allegation or the existence and parameters of the intra-family offense, if any.

The presumption favoring parental custody has been rebutted, if the court finds by clear and convincing evidence, that for example the parent has abandoned the child, or that he or she is unwilling to care for the child.  Or that custody with the parent would be detrimental to physical or emotional health of the child, or some other exceptional articulable circumstances exists in support of third party custody.

The Court of Appeals recently (Feb. 21, 2013) in IN RE D.S., K.M., B.S., R.S., T.S. & P.S., reaffirmed the application of clear and convincing standard in determining parental custody as compared to third party custody (here CFSA).  That is, although the government may show and prove by preponderance of evidence neglect and abuse, in the same case, a non-custodial father who has “grasped his opportunity interest” by filing for custody of his children will be awarded custody unless is can be established by clear and convincing evidence that placement with a third party/CFSA is in the children’s best interests.  In another word, the government has the burden to prove parental unfitness by clear and convincing evidence.

Thus similar to legal standards used in adoptions, and termination of parental rights, a third party must overcome a parental presumption of custody by clear and convincing evidence.

The Law Offices of David Stein is one of the Washington’s leading child custody/abuse litigation firms.

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DC TEMPORARY PROTECTION ORDER/CIVIL PROTECTION ORDER TPO/CPO

LEGAL ELEMENTS

Generally a TPO petition/affidavit is filed under oath attesting that the safety and welfare of the petitioner/affiant and/or a household member is imminently endangered by the respondent’s conduct and thus an immediate relief in form of a court order is needed to protect the petitioner and other listed members of the family.  The initial hearing is generally ex parte and almost always the petition is granted as long as sufficient facts are alleged.  Within 14 days of the issuance of the TPO order, the court will set the matter for a CPO hearing and the respondent would be served with the TPO order directing appearance at the CPO hearing.  The TPO will remain in effect until service has been completed and a CPO order has been entered.

At the CPO hearing, the marital privilege does not apply and one spouse may be compelled to testify against the other on confidential inter marital communications.  However the compelled testimony is inadmissible in the ensuing criminal case.

If at the CPO hearing the judicial officer determines that the respondent “has committed or threatened to commit a criminal offense against the petitioner” then issuance of a protection order is warranted directing the respondent: to refrain from such conduct, to stay away from the petitioner, to have no contact with the petitioner, to participate in counseling or an appropriate treatment, to refrain from entering or to vacate the marital property or the jointly owned/leased/rented property occupied by both parties (or leased/rented/owned by the petitioner or jointly by an individual other than the respondent), to relinquish possession of certain property jointly owned or by the petitioner only.  The court can and may award   temporary custody/visitation of the children in common, award spousal support, award costs and attorney fees, and direct relinquishment of firearm, inter alia.

If the judicial officer finds by the preponderance of evidence that an interfamily offense has been committed, visitation and custody determination would be granted only if the safely of the child/children and the custodial parent is adequately protected, and such must be articulated in writing.

The CPO order is in effect for one year unless renewed.  Violation of the CPO order is punishable either by the contempt power of the court or charged as a misdemeanor both punishable by 180days in jail/$1000.00 fine or both.

The CPO hearings are an important phase in an ensuing child custody/child support and divorce actions.  In generally one quick hearing with minimal evidence introduced, and in one brush, the court has the power to enter an order addressing separation, use of marital property, child support, child custody and even award of fees and alimony.   All of the ensuing proceedings would be affected by the CPO findings and the ruling.

Thus in an intrafamily matters, and at the CPO hearing, it is absolutely critical to have an effective zealous advocate as ruling in the CPO hearing would have a far reaching effect on all other ensuing intrafamily proceedings.

The Law Offices of David Stein is the preeminent litigation firm specializing in all aspects of DC family law: FAMILYLAWDC.COM.

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PETITIONER’S FTINESS FINDING IN THE ADOPTION PROCEEDINGS: RELEVANT CASES AND THE STATUTORY PROVISIONS

This blog addresses legal principles applicable to the court’s fitness finding in the adoption cases when the health or fitness of the adoptive petitioner is at issue.

There are statutory provisions that address both fitness as well as health of the petitioners, among other parties, and relevant case law, which extend possible waiver of the doctor-patient privilege when in the best interest of the child or justice to the petitioners as well as the natural parents.

There is the Termination of parental rights: D.C. Code §16-2353 (b)(2), the court is charged with in considering what is in the best interest of the child to make a direct inquiry as to “physical, mental and emotional health of all individuals involved….” A triggering statutory provision under DC Code §16-304 (2).

DC Code § 16-309(b)(2), which requires a finding by the court that the petitioner is fit, and able to provide the child with a proper home and education.

And particular statutory provisions that address medical privilege: D.C. Code §4-1321.05 provides that: [n]otwithstanding the provisions of §§ 14-306 and 14-307, neither the spouse or domestic partner privilege nor the physician-patient privilege shall be grounds for excluding evidence in any proceeding in the Family Division of the Superior Court of the District of Columbia concerning the welfare of a neglected child; provided, that a judge of the Family Division of the Superior Court of the District of Columbia determines such privilege should be waived in the interest of justice.

The case law on the subject is also well established.  In In re. O.L, 584 A.2d 1230 (D.C. 1990), the Court affirmed the trial court who had properly waived the mother’s physician-patient privilege and stated that “the waiver applies to ‘evidence’, and this term is broad enough to encompass information possessed by a doctor or other health professional whether that information was previously required to be disclosed or not.”  The Court further instructed that the statutory doctor-patient privilege should be waived in the interest of justice and when a parent’s mental or physical capacity to care for the child is at issue.  Id. at 1231; see also In the Matter of N.H., 569 A.2d 1179, 1184 (D.C. 1990) (“[a]bsence of a statutory physician-patient privilege in child neglect proceeding does not significantly or impermissibly infringe on any privacy right of a parent regarding medical information; the interest of the District of Columbia in assuring that a mother with an organic brain disorder be mentally competent to raise her daughter was sufficiently strong to limit the mother’s privacy right to information about her own mental health when that information was required for a disposition in the best interests of her child.”   That “civil neglect statutes are designed to enable the state to protect children and, in order for the court to determine whether a child’s welfare requires intervention, the court must be apprised of all the facts.”)

The court in In re DRM, ordered mental health/psychological evaluation of the mother concerned that such would affect directly the parenting of the child.  570 A.2d 796 (D.C. 1990).  Moreover, the Court of Appeals cases have instructed concisely that in the adoption cases not only the parental capacity of the natural parents affected by the medical issues are legally significant but also the adoption petitioner’s.  In re DeF., 307 A.2d 737 (DC 1973)(age and health of the petitioner at issue); In re ACG, 894 A.2d 436 (D.C. 2006).

Although the cases are generally focused on the parental medical fitness both physically and mentally – parallel arguments could be made effectively that the proposed adoption petitioners are equally in a parenting role, if successful through an adoption petition, and thus same legal principles: best interests of the child, and in the interest of justice – equally apply to the petitioners.

In fact, one could argue that more scrutiny must be placed on the adoptive parents’ mental and physical fitness than the biological parents’ as in the former there exists no biological link and by granting the adoption petition the biological link is in fact severed and thus more scrutiny is warranted when health or fitness of the proposed petitioner is at issue.

The Law Offices of David Stein is the preeminent litigation firm focused in all aspects of family law, criminal, and civil cases: familylawdc.com.

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CHILD’S TESTIMONY, THE LEGAL PRINCIPLE:

Often times in the neglect and abuse, termination of parental rights, and adoption litigation — the child’s testimony can tip the scale one way or another.  Under the adoption statute, the child’s position, if the child is fourteen or older, shall be considered by the court.  Under the TPR statute, §16-2353(b)(2)&(4); mental and emotional needs of the child as well as the child’s opinion as to his/her best interest are both codified.  In child custody cases, the child’s opinion as to his/her physical custodian is one of the statutory elements, §16-914(3)(B).  Regardless, in family cases, the litigants face resistance from both the government as well as the GAL to the child testifying at times under the auspices of irreparable harm to the child but at times only to eliminated damaging testimony.  There is no question that the court is first and foremost charged with protecting the best interests of the child.  However, there are ways to have the benefit of having the best evidence by having the child testify first hand while both curtailing and eliminating the potential harm to the child.

The legal principle, as to the applicable standard for the court to consider before allowing child’s testimony was concisely outlined in In re Jam.J., 825 A.2d 902 (D.C. 2003).  The Court of Appeals specifically adopted a three-prong analysis that the trial court needs to carefully consider and balance.  The court has to conclude that there is a “risk of serious harm” to the child due to his testimony and such finding has to be based “upon concrete evidence individualized to the particular child.”  Expert testimony would be the best source of evaluating risk of harm and thus required.  At this juncture, a therapist testimony would be critical to establishing whether the child would sustain “risk of serious harm.”  The opposing side gets to cross examine the therapist, to determine whether the testimony is based on substantive therapeutic relationship or just a therapist brought in by the government supporting their position.

Second, if serious risk of harm to the child is established, then the court is charged with finding methods of alleviating or ameliorating such risks by imposing restrictions such as using closed circuit cameras, in-camera testimony, or limiting the scope and degree of questioning.  The court has broad resources at its disposal and just because a serious risk of harm exists – such should not eliminate child’s testimony in a fashion to reduce such risk and also to allow critical testimony to be elicited.

Thirdly, the court must balance and consider “the probative value of the child’s testimony and the parent’s concomitant need for it.”  The court can take proffer from the parent as to the anticipated testimony and its value versus the potential harm to the child.  The Court in Jam.J. emphasized that the parents have a fundamental right to confront and examine the child especially when such proceedings involve termination of parental rights.  That is, a permanent termination of the parent child relationship.  In neglect proceedings — parents face serious state interference in that relationship, interference that could lead to both a temporary or permanent loss of custody or that relationship.

Thus in cases where the child is older, or that his/her potential testimony would be critical to court’s ruling, a Jam.J. motion should be filed and litigated not only to preserve your client’s right but to also preserve the record on appeal.  After all, children depending on their age, disposition and maturity, are in the best position to expostulate to the court and the parties as to what is in their best interests.  The Law Office of David Stein is the premier litigation firm specialized in family law litigation: familylawdc.com.

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ENTIRE MOSAIC OF THE CHILD’S LIFE –- A LEGAL PRINCIPLE OR AN EXCUSE TO LET ALL NON-ADMISSIBLE EVIDENCE IN?

The pinnacle case that first defined and expounded on the “entire mosaic” of the child life was:  In re. S.K., 564 A.2d 1382 (DC 1989).

The case was about excessive physical discipline of a child who had set her bed on fire.  Parents sufficiently outraged had both physically disciplined her, belting the child.   The mitigating factors were that the child had a pre-existing, documented severe psychological issues, with even suicidal ideations.  The parents were aware of that.  The court however found neglect based on a very narrow and isolated set of facts.  The judge focused only on the day and the incident giving rise to the physical discipline – and finding the discipline excessive as the child had marks and bruises – concluded neglect legally justified based on the evidence.

In another word, rather than considering the child’s pre-existing mental conditions at the time of physical disciplining and all the surrounding circumstances – the trial Judge simply establish that the belting of the child, isolated from all other elements in play, was sufficient to establish neglect.  Judge Schwelb in a dissenting opinion entitled and empowered the trial judge to have a larger focus and lens when considering basis for finding neglect.   He specifically coined and defined the legal term “entire mosaic of child’s life” as: state intervention to remove a child cannot be based on a single episode or incident narrowly construed but the court has to cast a wider net and consider other countervailing interests and evidence giving rise or supporting a finding of neglect.   That is: a pattern of mistreatment, pre-existing psychological issues, other influencing considerations as well as the most recent incident that might have given rise to the filing of the neglect petition.

The court in In re T.G., C.G., D.G., 684 A.2d 786, 788 (D.C. 1996), defined the entire mosaic as “chronic indifference, carelessness, dereliction, inability to perform” – there the trial Judge had focused too much on the conditions of the two residences from which the children were removed on that particular day, and did not consider all other countervailing circumstances surrounding the children’s life.

The issue is though that often times the court will admit all kind of evidence broadly and some even irrelevant all under the auspices or the umbrella of the “entire mosaic” of child life.  It is critical to understand the facts and circumstances of the cases using “the entire mosaic” language to be able to properly limit and exclude the non-admissible evidence sought to be admitted using this legal principle  — which if often interrupted broadly and all encompassing but in reality limited in scope and definition by the cases which have expressed its limits and defined circumstances when applicable.

The Law Offices of David Stein is the preeminent litigation firm specialized in DC child abuse and neglect cases: familylawdc.com.

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HEARSAY EXCEPTION FOR THE PURPOSE OF MEDICAL TREATMENT:

The recent Court of Appeals decision in IN RE. M.F. (No. 08-FS-733, Sept. 27, 2012), highlights how the litigation errors made at the trial level can tip the balance on the appeal.

At issue, in part, was statements admitted by MF Fentress into record as admissible under the hearsay exception: statement made during medical diagnosis.  The evidence of abuse and neglect at trial was primarily elicited through the testimonies of a therapist, a treating medical professional and the social worker.  The bulk of testimony and evidence was the child’s account of events to these individual who all testified.  The litigants at trial all objected to the hearsay testimony of the therapist accounting what the child had told him, however, never they objected to the hearsay testimonies of the treating medical professional as well as the social worker.

The Court of Appeals held flatly that the hearsay testimony of the therapist, in fact, was not admissible under the medical treatment exception as the trial MJ had held.  The Court cites the ruling in In re C.A.S., 828 A.2d 184, 190-191 (D.C. 2003), which held that the children’s statements made to the therapist were inadmissible hearsay as the interview held with the child was at the bequest of government and for the purpose of admitting the testimony at trial.  An indirect way to admit an inadmissible hearsay testimony.  Thus, similarly, the Court held that the therapist’s testimony was inadmissible hearsay and thus excluded.  However, the Court developed that the testimonies of the medical professional and the social worker both corroborated the therapist’s inadmissible testimony – the evidence overall supported the finding of neglect.  Here is the catch.  The Court of Appeals made it clear that as the litigants had not at the trial level objected to the hearsay testimonies of the medical professional and also the social worker, they were barred to argue that on appeal and thus evidence even if on its face – hearsay – was nevertheless admissible and reliable on appeal.  If the litigants had objected to these testimonies, arguably the Court of Appeals would have strike them as inadmissible and the case most likely overturned. Eldridge v. United States, 492 A.2d 879, 883 (D.C. 1985) (the Court of Appeals has held repeatedly and consistently that “hearsay that is admitted without objection may be properly considered by the trier of fact and given its full probative value”).

803(4) – Medical diagnosis/treatment exception- statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

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DC COURT OF APPEALS EXPANDING AND REAFFIRMING FATHER’S RIGHT

The DC Court of Appeals in IN RE D.S., K.M., B.S., R.S., T.S. & P.S.; J.M., issued on September 20, 2012, reiterated the legal principles governing placement of children in the custody of their biological parents in a split neglect case.  Here the evidence established that the mother physically neglected the children and removal from her home was warranted, however, the court did not sufficiently consider the biological father and placement of the children with him rather than the shelter care — basis for the Court of Appeals reversal of the case.  The father was willing and able, had sufficient housing and was caring for the children on the weekends.

The Court of Appeals cemented through this ruling the father’s statutory constitutional and case-law supported presumption of custody unless proven by clean and convincing evidence to be unfit and not in the best interest of the children.   The presumption is rudimentary: that it is generally both preferable and advantageous to leave a child in his or her own home.  That the biological parents are most suited to care for their children and most likely care for their children better than anyone else.

The Court also touched up the best interest of the child criteria and shed another definition on this nebulous and rather malleable legal term: that “the best interest of the child requires the judge, recognizing human frailty and man’s limitations with respect to forecasting the future course of human events, to make an informed and rational judgment, free of bias and favor, as to the least detrimental of the available alternatives.” Rather expanding the formula to encompass a noncustodial father, who might not be perfect, and yet provided effective care and provided a parental placement as an alternative to shelter care.

The Court of Appeals also enlisted the US Supreme Court cases declaring a fundamental right to raise your child.  To establish a home and to bring up your children.  To control and direct the care, custody, education and management of your children.  A non custodial father who “ demonstrated a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child . . . acquires substantial protection under the Due Process Clause.”  A noncustodial father has a “constitutionally protected” right/opportunity to develop a relationship with his child.  All powerful language reinforcing and reiterating a parent’s Constitutional right to raise his or her child without unreasonable and unwarranted and unjustified interference by the State.

The real issue with this case is the harm done to the children as by the time this opinion was issued the court had already concluded the matter via guardianship with a relative.  It would have been supremely beneficial for the father to have filed at the beginning of the neglect case custody papers with the court and have the matter consolidated.  This would have forced the lower court to consider elements enumerated in the Custody Statute requiring finding of unfitness for the father and thus allowing an opportunity for a quicker appeal and also a record that addressed more precisely the central issue in the case: whether the father was unfit to care for his children.

The Law Offices of David Stein specializes in complex family law matters and cases: familylawdc.com.

Full Opinion: http://www.dccourts.gov/internet/documents/10-FS-1556.pdf

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DOES INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) APPLY TO A NON-CUSTODIAL OUT OF STATE BIOLOGICAL PARENT?

Until recently, and almost consistently, the Child and Family Services Agency (CFSA) would in cases where a non-custodial non-petitioned biological parent intervenes in the neglect proceedings and seeks custody of the child – would require that parent to go through the rigorous and rather arduous task of the ICPC approval traditionally reserved for out of state placement with a foster family or an out of state pre-adoptive home.

The Supreme Court of Connecticut in an opinion published on July 19, 2012 (IN RE EMONI W. ET AL), dissected the ICPC statutory language and clearly ruled that the biological non-custodial parents are exempt from going through the ICPC approval before placement.

ICPC ‘s section 17a-175, article III (a), provides in relevant part: “[n]o sending state shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state . . . .”

The court first using the plain statutory language analyzing that biological parents are neither considered to provide “foster care” nor are considered to be an adoptive home and thus statutorily excluded.

The government there essentially put forth two arguments in support of the ICPC applying to biological parents:

1)    That § 17a-175 was intended to provide each child with “the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care”

2)    Using the entire context of the statute, placement in foster care should be interpreted as any placement by the court.  In support of the argument the government cited article I (a) of § 17a-175, which provides that “[e]ach child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.”

The court reasoned that there is a constitutionally founded presumption that parents are fit and seek what is best for their children.  Thus unless proven otherwise, placement with a biological parent would promulgate suitable environment, and a placement with qualified/appropriate individual as the statute requires.  Moreover, the agency can investigate the parent independently of the ICPC approval process and rebut the presumption of fitness.

The court also did not find persuasive the government’s second reasoning for including biological parents for the ICPC approval.  In fact, the court ruled that the statutory language clearly does not enumerate biological parents as “persons”  — and “persons” accordingly are limited to either a foster family or an adoptive home.    Specifically that “parents are presumed to be able to provide a ‘suitable environment’ for their children and to have ‘appropriate qualifications and facilities’ for raising them.”

Essentially, the court clearly and unambiguously carved out an exemption for biological parents when seeking custody of the their child out of state.  The court appropriately distinguished biological parents from foster or adoptive placement in that the biological parents are presumed to be fit, to act consistent with the best interest of their child, and held to a higher standard unless proven otherwise.

There is also an argument not memorialized or mentioned in the court’s opinion and certainly noteworthy.   That the enforcing agency should reward and persuade a fit non-custodial out of state parent who seeks to remove the child from the neglect system and to care for his or her child rather than to create more barriers and obstacles to that end– such as the ICPC approval process.

The Law Offices of David Stein handles all aspects of DC family law cases.  Contact our Offices to schedule a thorough case evaluation.

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