The Supreme Court on April 29, 2014, heard oral arguments in U.S. v. Wurie, a case testing yet again the boundaries of law and technology with compelling argument on both sides.

Brima Wurie was arrested in 2007 after a drug sale for distributing crack cocaine.  After arrest, the officers looked through his cell phone which kept ringing and from reviewing the call log connected a number stored as “my house” to his actual house location.  The officers then obtained a warrant for search of the house and confiscated substantially additional drugs and weapons form the home.  The trial court did not grant the defense motion to suppress evidence based on illegal search of his cell phone and he was convicted and sentenced to 262 months.  On appeal, the First Circuit held that the search of the cell phone essentially was beyond the permissible search-incident to the arrest articulated in U.S. v. Robinson and reversed the conviction.  The case was thus appealed to the US Supreme Court.

At the oral arguments both the government and defense made compelling arguments adding weight and significance to the impending Court’s decision.  The government argued that under Robinson, the limited search of the phone was permissible and did fall under two main reasons articulated in the case: 1) to preserve the evidence, and 2) to protect the safety of the officers.   The government also argued that as the phone was on Wurie’s person, it was considered a permissible search incident to the arrest.  The cell phone in this case was a device used in the commission and in furtherance of the crime and thus again a permissible search.  That this cursory search would be no different than the officers finding a piece of paper on Wurie with his home address on it, again permissible to unfold and review.  Chief Justice Roberts seemed to indicate that as the same information could have been extrapolated from Wurie’s driver’s license, the search of the phone log was no more intrusive under the 4th amendment.  Justice Sotomayor suggested that as the phone was ringing, the number could have been viewed without even looking at the call log, and as the police officers during search of a dwelling are permitted to answer the phone or open the door if there is a knock – under the circumstances, the information gathered by the officers was virtually in plain view and again permissible.

The Court during the oral arguments attempted to develop a constitutionally permissible rule that would protect the law enforcement interested while not ebbing away from the 4th amendment protections.  A very difficult task, and one that the Court will have to struggle with in the coming months and years with technology often testing and redefining the laws and its boundaries.

The facts in Wurie were not compelling enough to disallow the limited search in the case.  The phone kept ringing and the designation of the number was “my house.”  The officers only looked through the recent call log and were able to quickly connect the number with a correct address for Wurie.   The cell phone was on Wurie’s person, in fact two were founded on him.  He was suspected of drug sale and cell phone are well known instrument of crime.  A search warrant was obtained to search the house and significant drugs and weapons recovered.  The officer’s had other way to locate Wurie’s house, through his driver’s license or other mean unrelated to his cell phone.  Also the phone kept ringing during the arrest and processing of Wurie.  With these facts, the court will most likely reverse the First Circuit.  The important precedent would be in the language of the opinion with respect to cell phone/ipad/laptop searches found on the person upon arrest.  Whether the Court would delineate between a limited circumstantial look into a phone rather than a full-blown search of the device found.

This opinion is significant as the Court will most likely redefine the contour of the 4th Amendment with respect to warrantless searches incident to an arrest.

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The DC Court of Appeals in LIHLAKHAV.  U.S, issued recently on April 24, 2014, was presented for the first time with a case with a factual background to consider and analyze a “return for reward defense” in connection with a receiving stolen property conviction.  The defendant here was convicted of both receiving stolen property and unlawful entry.  On the stolen property — a laptop– reward was offered by the owner for the return of the property.

The D.C. Code enumerates the following elements requisite to prove a stolen property conviction:  A person commits the offense of receiving [1] stolen property if that person [2] buys, receives, possesses, or obtains control of stolen property, [3] knowing or having reason to believe that the property was stolen, [4] with the intent to deprive another of the right to the property or a benefit of the property.

The defendant did not contest the first two elements on appeal and conceded on record: that the property was stolen by someone and that Lihlakha (defendant) received, possessed, or obtained control of the property.  The property was a laptop belonging to Banks (the victim), and Banks had offered a $1000 reward to whoever returns it.   Defendant based on testimony knew or should have known the property was stolen.  The case on appeal turned on the 4th element of the statute carving a valid return for reward defense.

The defendant essentially argued that she did not have a criminal intent as she was merely trying to return Banks’ property back to her according to a return for reward contract, which was perfectly legal and valid.

Specifically, she argued in offering a reward for return of her computer, Banks had voluntarily entered into a valid unilateral contract by which Lihlakha would receive an advertised reward in exchange for returning Banks’ computer.   In order to fulfill this contract, she had to take possession of the computer and thus lacked a criminal intent.  In another word, defendant’s possession of the stolen property was by the consent of the rightful owner and that the defendant only took possession of the computer intending to return it for reward but not to deprive the rightful owner.

The Court in carving an exception and elaborating on a return for reward defense distinguished between cases when return of the property was premised on a demand for payment or when a reward has been offered for return of the stolen property and under these specific conditions:

(1) the reward had been announced, or was believed to have been announced, before the property was possessed or agreed to be possessed; (2) the person claiming the reward had nothing to do with the theft; (3) the possessor returned the property without unreasonable delay to the rightful owner or to a law enforcement officer; and (4) the possessor imposed no condition on return of the property.

If all of the above elements are factually presented and determined by the trial court, then, there is a valid “return for reward defense” exculpating the defendant of the criminal intent requisite under the statute.

Based on this articulated exception in reward for return cases, ultimately the Court ruled that the trial judge had “made no express finding on whether Lihlakha’s returning the property in response to a reward negated her criminal intent” and thus remanded the case for further factual findings consistent with the opinion.

The Law Offices of David Stein is a Washington DC based litigation firm specialized in complex criminal and family law matters.

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In the recent opinion issued by the Court of Appeals in IN RE D.M.; T.M., (March 13, 2014), the Court once again articulated that when a biological parent is unable to care for his or her child, her choice of a fit custodian must be given a weighty articulated consideration by the trial court.

T.M., the biological mother of D.M., appealed successfully her termination of parental rights by the trial court.   She argued on appeal that the lower court erred by “failing to give weighty consideration to the third-party custodial arrangement” she set forth as a placement option and in lieu of termination of her parental rights.  She had proposed her mother in law TM2 as a placement option.

Although the child had special needs and behavioral issues, TM2 was willing to care for the child and had taken affirmative steps in that direction: she had completed foster parenting classes, undergone home study by the agency, and was licensed as a foster parent.

CFSA did not support mother’s choice of placement reasoning that TM2’s work hours, and the child’s special need, and behavioral issues worked against the placement.  The lower court agreed.  The Court of Appeals reversed essentially stating that the CFSA and the lower court analysis did not meet the weighty consideration legal principles the Court had mandated.  The agency or the trial court had to find TM2 unfit to care for the child in order to meet the standard.  In another word, the agency had the burden to show that placement with TM2 was not in the best interest of the child by clear and convincing evidence which they did not.

Specifically the Court ruled: [b]ecause ―a child and the natural parents share a vital interest in preventing erroneous termination of their natural relationship, we have mandated that ―a parent’s choice of a fit custodian for the child must be given weighty consideration which can be overcome only by a showing, by clear and convincing evidence, that the custodial arrangement and preservation of the parent-child relationship is clearly contrary to the child‘s best interest.

The Court also ruled that the lower court had not sufficiently articulated if the parent’s choice was given a weighty consideration.  The lower court ruling was not detailed or sufficiently thorough on this issue.  Moreover, parental dilatoriness in selecting the viable choice of custodian does not excuse the court’s need for a detailed and thorough analysis of the fitness of this choice before looking the other way by granting an adoption or terminating parental rights otherwise.

It also appears that the Court of Appeals did not agree with the trial Judge rubber-stamping CFSA’s position in what would be in the best interest of the child.  Placement with the mother’s choice of custodian — a relative placement, or placing the child for adoption all while a family resource fights to gain custody.  The Court held that the family placement and the mother’s choice required a weightier legal consideration.

The Law Office of David Stein is the preeminent Washington based family law litigation firm.

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Currently the criminal Statute in the District penalizes simple possession of marijuana and the imposed penalties are maximum 180 days/$1000 fine, specifically:

“It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice … any person who violates this subsection is guilty of a misdemeanor…”

Incidentally the possession with intent to distribute marijuana on the first offense carries the same penalty as long as the amount is less than ½ pound, specifically:

“… except that upon conviction of manufacturing, distributing or possessing with intent to distribute 1/2 pound or less of marijuana, a person who has not previously been convicted of manufacturing, distributing or possessing with intent to distribute a controlled substance or attempting to manufacture, distribute, or possess with intent to distribute a controlled substance may be imprisoned for not more than 180 days or fined not more than the amount set forth in § 22-3571.01 [$1000] or both”

District has already enacted medical marijuana Statute, which sets limited and guidelines of medical marijuana use and dispensing, specifically:

“The maximum amount of medical marijuana that any qualifying patient or caregiver may possess at any moment is 2 ounces of dried medical marijuana; provided, that the Mayor, through rulemaking, may increase the quantity of dried medical marijuana that may be possessed up to 4 ounces; and shall promulgate through rulemaking limits on medical marijuana of a form, other than dried.

Medical marijuana shall not be administered by or to a qualifying patient anywhere other than the qualifying patient’s residence, if permitted, or at a medical treatment facility when receiving medical care for a qualifying medical condition, if permitted by the facility.

A qualifying patient or caregiver shall not administer medical marijuana at a dispensary or cultivation center…”

However, currently a bill is climbing the legislative steps, coined as bill 2-409: Simple Possession of Small Quantities Of Marijuana Decriminalization Amendment Act of 2013, and the pertinent portions of the proposed bill decriminalizing possession of marijuana if less than one ounce, specifically:

“3A — A person 18 years of age or older who possesses marijuana weighing less than one ounce shall not be guilty of a criminal offense. Such possession shall be a civil violation, subjecting the person to a civil fine of $100 and forfeiture of the marijuana.

A person under the age of 18 who possesses marijuana weighing less than one ounce shall not be guilty of a criminal offense. Such possession shall subject the person to the same civil penalties in (3)(A) and the person under the age of 18 shall be required to attend a drug awareness program.

(i) The parents or legal guardian of any offender under the age of eighteen shall be notified of the offense and the availability of a drug awareness program.

(ii) The program must be made available without cost and must provide at least four hours of group discussion or instruction based on science and evidence-based principles and practices specific to the use and abuse of cannabis, alcohol, and other controlled substances.

(iii) If the minor fails to complete the drug education program within one year of notice of its availability, the court shall issue an order requiring the minor to complete eight hours of community service and shall be assessed a fine of $200. “(C) The District shall not impose any form of penalty, sanction, or disqualification on a person for engaging in the actions specified in section (a)(3) apart from those imposed by this section.”

Other pertinent portions of the bill propose:

“(f)(1) Notwithstanding any other provision of law, the use, or possession with intent to use drug paraphernalia to pack, repack, store, contain, conceal, inhale, ingest, or otherwise introduce into the human body less than one ounce of marijuana by any person 18 years of age or older shall not constitute a violation of this section. Such action by any person under the age of 18 shall subject the person to the requirement to attend a drug awareness program, as required in § 48-904.01(d)(3).

(2) The transfer without remuneration of drug paraphernalia that the transferor knows or has reason to know will be used to transport, store or otherwise carry, or to inhale, ingest, or otherwise introduce into the human body less than one ounce of marijuana shall not constitute a violation of this section.”

There is significant legislative support for the bill and it appears that some modification of the proposed language as listed above would be eventually passed.  The impetus for the bill has been predominantly the significant number of marijuana arrests in DC on an annual basis – some approximately 5393 arrests in 2010 alone, and the significant racial disparities of those arrested.

The costs and the social stigma of the criminal arrest for simple possession of marijuana have been the other factors forcing the bill through the legislature all while it has become an established medical knowledge that marijuana use in small dosage is not more harmful than alcohol or cigarette use.  Public sentiment has also been favoring decriminalizing use in small scale.   An October 2013 study found that 75% of DC residents support legalizing small amount of marijuana and while 58% nationally support it.

For now though, simple possession of marijuana remains illegal unless authorized under the provisions enacted for medical use only.

UPDATE: Effective July 17, 2014, the DC Marijuana Possession Decriminalization Amendment Act of 2014 took effect and the law is utterly confusing.  Essentially, possession of ounce or less is decriminalized but there are still civil and criminal penalties associated with possession, sell, and use of the substance.   The link below directly from the MPD site does outline some of the nuances of the new law:

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De Factor Parent/Third Party Custody Actions: Legal Principles and Recent Relevant Court of Appeals Case:

In the District, the child custody statute extends rights upon third party and de factor parent custodians. That is, if an individual can establish by clear and convincing evidence that he/she is either a de facto parent or a third party custodian of a child – then the Statute allows for filing and litigating the custody action against the parent seeking order for grant of physical/legal custody to the third party custodian or to the de factor parent.

Specifically, de facto parent is defined as an individual who has either:

(i) Lived with the child in the same household at the time of the child’s birth or adoption by the child’s parent; (ii) Has taken on full and permanent responsibilities as the child’s parent; and (iii) Has held himself or herself out as the child’s parent with the agreement of the child’s parent or, if there are 2 parents, both parents; or

(i) Has lived with the child in the same household for at least 10 of the 12 months immediately preceding the filing of the complaint or motion for custody; (ii) Has formed a strong emotional bond with the child with the encouragement and intent of the child’s parent that a parent-child relationship form between the child and the third party; (iii) Has taken on full and permanent responsibilities as the child’s parent; and (iv) Has held himself or herself out as the child’s parent with the agreement of the child’s parent, or if there are 2 parents, both parents.

Subsequently, third party custodian may file or intervene in the pending custody action under the following criteria:

(A) The parent who is or has been the primary caretaker of the child within the past 3 years consents to the complaint or motion for custody by the third party;

(B) The third party has: (i) Lived in the same household as the child for at least 4 of the 6 months immediately preceding the filing of the complaint or motion for custody, or, if the child is under the age of 6 months, for at least half of the child’s life; and (ii) Primarily assumed the duties and obligations for which a parent is legally responsible, including providing the child with food, clothing, shelter, education, financial support, and other care to meet the child’s needs; or

(C) The third party is living with the child and some exceptional circumstance exists such that relief under this chapter is necessary to prevent harm to the child; provided, that the complaint or motion shall specify in detail why the relief is necessary to prevent harm to the child.

The Statute also bestows upon the biological parents a rebuttable presumption of fitness or more specifically: that it is in the best interests of the children to reside with their parent. That custody with biological parent is presumed to be in the best interests of the children. In order for the court to grant custody to third party the court has to determine by clear and convincing evidence that the presumption in favor of custody with parent has been rebutted and that custody with the third party is in the best interests of the child.

The parental presumption is rebutted if the court finds by clear and convincing evidence existence of one or more of the below listed elements: (1) That the parents have abandoned the child or are unwilling or unable to care for the child; (2) That custody with a parent is or would be detrimental to the physical or emotional well-being of the child; or (3) That exceptional circumstances, detailed in writing by the court, support rebuttal of the presumption favoring parental custody.

The Court of Appeals in W.H. v. D.W. (No. 11-FM-1334), with the opinion issued on October 13, 2013, considered action by the third party custodians biological brother and grandmother D.W. and J.W. against the biological father W.H. The Court determined that D.W. did qualify as a third party custodian, had rebutted the parental presumption by clear and convincing evidence, and if fact it was in the best interests of the children to reside with him rather than the natural father strictly considering the elements listed above.

The interesting aspect of the this ruling has to do with the grandmother J.W. and her standing to litigate in the matter and be joined in award of custody with D.W. The Court ironically found that J.W. did not qualify as either a third party custodian or a de facto parent strictly under the provisions listed and analyzed above. However, the court still found her inclusion permissible under two broadly stated provisions in the third party custody statutes with a plenary/inclusive language:

§ 16-831.04(a)(5) which essentially states that the court may issue any custody order as long as the court determines is in the best interests of the child.  And § 16-831.13 which states “[n]othing in this chapter shall be construed to limit the ability of any person to seek custody of a child under any other statutory, common law, or equitable cause of action or to preempt any authority of the court to hear and adjudicate custody claims under the court’s common law or equitable jurisdiction.”

The Law Offices of David Stein specializes in complex and demanding child custody/support matters.

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The Court of Appeals in a recent decision issued on December 19, 2013, James M. Schools v. US (12-CM-1448) reversed the conviction for unlawful possession of firearm and ammunition. Specifically, the jury had convicted the appellant Schools of unlawful possession of a firearm by a felon, possession of an unregistered firearm, and unlawful possession of ammunition.

Factually, the defendant was found in the back room of a two bedroom apartment during a search warrant. The apartment was occupied by other individuals, and although the defendant was found in control and possession of the narcotics found, the weapon and ammunition was stowed in a dresser with cloths in the dresser not belonging to the appellant.

Schools sought reversal of his convictions on the ground that the evidence at trial was not sufficient to show that he had constructively possessed the gun and the ammunition. That is, the jury could not have concluded beyond reasonable doubt that he knew about the firearm and ammunition or that he ―had the requisite intent to exercise dominion and control over them.

The government argued that the appellant constructively possessed the gun and ammunition. Accordingly, the government was required to prove that he ―(1) knew of the presence of the weapon, (2) The power to exercise dominion and control over it, and (3) intended to exercise dominion and control over it. Essentially, Schools argued on appeal that no reasonable juror could have found beyond a reasonable doubt that he knew about the weapon because “it was hidden from view, he made no movement toward it, and he gave no ―other indication that he knew what was tucked away under some clothes inside, ―much less that the other criteria for constructive possession were satisfied.”

As a matter of law, constructive possession may be proven by direct or circumstantial evidence. There must be however more than mere presence on the premises where the weapon is found or the proximity to it to satisfy the test for constructive possession of the contraband. There must be an added link that along with proximity and knowledge establishes that the accused meant to exercise dominion or control over it. The Court of Appeals in pertinent parts reasoned that “[w]e do not think that inferences that appellant (1) knew of the presence of the firearm and ammunition hidden beneath someone’s clothing in the drawer and (2) intended to exercise dominion and control over them are reasonable inferences from the limited evidence the government presented.

The prosecutor argued in closing that appellant ―knew where that gun was because ―[i]t was his dresser, his clothes in it and referred to ―that dresser where he keeps his things, his clothes, but there actually was no evidence presented that the dresser (or the closet in the back bedroom) contained clothing belonging to appellant.” The Court also noteworthy defined that “[r]easonable doubt is a doubt arising from the evidence, or from a lack of evidence, after consideration of all the evidence.”

Ultimately, considering the totality of the circumstances, others residing in the apartment and having the same access as the appellant, no articles of clothing or link was establish between the appellant and the dresser (there was no finger print evidence either), and even the wallet found in the back room did not belong to the appellant – all considered – there was insufficient evidence to establish that the appellant had constructive possession of the weapon and thus reversal was warranted.

The Law Offices of David Stein is a preeminent DC based criminal and civil litigation firm.

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In another recent opinion issued by the Court of Appeals, the Court applied the same legal principles emphasized and enumerated in IN RE TA. L. (No. 11-FS-01217, 2013 WL 4779715), also recently issued on August 22, 2013 – but with entirely different outcome.

The Court in In RE TA. L., clearly re-established that when the biological parents have designated a preferred custodian, the trial court can only overcome their choice by finding with clear and convincing evidence that their choice is contrary to the best interests of the child.  There the Court ruled that the parents’ choice of custodian was not given sufficient consideration at trial and thus case remanded.

In the recent case though different set of facts were considered.  Here there were also competing petitions.  An adoption petition by the foster parents and a guardianship motion by the grandparents.  However, the determining factual difference in the most recent case was that the child was medically fragile.  The child was born with significant medical issues.  She required early on monitoring and treatment by specialists in pulmonology, ophthalmology, gastroenterology, and endocrinology.  The evidence established that the foster parents met or exceeded the child’s medical needs diligently keep track of all her medical appointments and progress.  Whereas the grandparents had not attended a single medical appointment with the child nor had fully demonstrated an understanding of the child’s medical needs.

Secondly, the child was placed with the foster parents almost her entire life – some four years.  The experts opined that the child had a parent-child relationship with the foster parents and grandparent-grandchild relationship with the grandparents.  That the child had a primary secured attachment to the foster parents, and it would be severely detrimental to remove the child.

There was also clear evidence that the foster parents had met the child’s educational needs whereas the grandparents lacked basic information regarding the child’s educational needs.

This case and the Court of Appeals ruling here suggests that even if the parent’s choice of custodian is found to be fit and able and willing to care for the child – underlying compelling facts such as ones enumerated here – may still tilt the balance in favor of the foster parents as the termination of parental rights elements established by clear and convincing evidence that it would be contrary to the best interests of the child to be removed from the foster parents.

The Law Offices of David Stein is the preeminent Family Law firm in Washington DC specializing on the intricacies of family law matters and issues.

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The recent Court of Appeals decision in Thomas v. United States on October 24, 2013, reiterates the doctrine of collateral estoppel.  The issue in the case was whether a retrial on certain counts was barred due to collateral estoppel.  Thomas was charged initially with five counts.  The first trial resulted in the jury acquitting Thomas of ADW (assault with deadly weapon) and PFCV (possession of firearm during crime of violence), but hung on CPWL (carrying a pistol without a license) and UA (unlawful possession of ammunition). The trial court declared a mistrial on those counts as well as the fifth count the FIP (unlawful possession of firearm by a felon).

The government on the retrial pursued the FIP, CPWL, and UA counts.  Thomas claimed that the government was collaterally estopped on both the CPWL and the FIP counts. The trial court ruled against Thomas and he was convicted on both the FIP and UA counts (government dismissed the CPWL).

The Court in applying the legal principles of collateral estoppel determined that the case requires remand.  The Court expounded on the doctrine “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” That “the defendant has the burden of demonstrating that ‘the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.’

In order to determine if a count was barred on retrial by the doctrine of collateral estoppel – the first trial record has to be examined considering all pleadings, evidence and instructions and closings at which the question is whether the jury could have acquitted the defendant on any count other than the one defendant is seeking to bar from retrial.  That is, if the facts and evidence necessitating conviction was considered by the jury in the first trial before verdict – then the defendant cannot be retried on the same facts and evidence the second time.

Thus on appeal Thomas argued that the jury in the first trial determined that he did not bring a gun to the altercation therefore, collateral estoppel barred retrial on the FIP count. That “the jury in the first trial at least decided that he did not pull out a gun during his encounter with the Lamar brothers, and therefore, collateral estoppel barred admittance of the evidence of assault in his second trial.”   The Court of Appeals agreed and remanded the case.

The doctrine of collaterial estoppel is an effective tool for criminal litigators to eliminate counts, facts and evidence already litigated or considered by the jury.

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In yet another recent case, it appears that the Court of Appeals has gradually shifted the standard of review in favor of the biological parent and the parental rights and preferences.  In the previously blogged and reviewed cases, the competing adoptions with a parental preference and a fit father’s custody filing — were both considered and analyzed – and in each of these recent cases, the Court had sided with the parental preference arguably raising the bar to overcome parental preferences and here to find neglect against a parent.

In IN RE K.M., decided on September 12, 2013, the Court reversed the neglect finding in favor of the mother diagnosed with delusional ideations, the prosecutorial type.

In this case, the mother LM was diagnosed to have suffered from delusional disorder.  Specifically the psychologists described the disorder as irrational and firmly fixed beliefs that LM was being harmed by others or that other people meant to hurt or to persecute her.

The two relevant statutory neglect provisions applicable were:

1)    D.C. Code § 16-2301 (9)(A)(ii) if the child is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his or her physical, mental, or emotional health, and the deprivation is not due to the lack of financial means of his or her parent.” No finding of parental fault is required to establish neglect. In re N.P., 882 A.2d 241, 250 (D.C. 2005). The “relevant focus for the court . . . is the [child’s] condition, not the [mother’s] culpability.” In re E.H., 718 A.2d at 169.

2)    A child is neglected within the meaning of D.C. Code § 16-2301 (9)(A)(iii) if the child’s parent is “unable to discharge his or her responsibilities to and for the child because of . . . mental incapacity.” Proof of mental incapacity alone is not sufficient; the government is required to “demonstrate the existence of a nexus between a parent’s [] mental incapacity and an inability to provide proper parental care.” In re N.P., 882 A.2d at 251.

The Court of Appeals disagreed with the trial court finding and also the District’s position that L.M.’s delusional disorder rendered L.M. unable to provide proper parental care for and control over K.M.

Essentially the Court reasoned that this case falls under those neglect cases that although the parent might have either a drug issue, or a mental health problem – the issue or problem does not rise to the level of neglect – as the court focused on the condition of the child.  That is, the causal link between the parent’s issues and the child’s condition does not justify a finding of neglect.

Here the Court found that the behavioral issues the child exhibited was after the removal.  Although LM had mental health issues, she provided sufficient care and control over KM in that KM was not a neglected child.  The home was appropriate, child attended school, and the child was not harmed in any tangible concrete way by the mother’s delusional ideations.  There was no expert evaluation of the child to determine whether the mother’s condition had impacted the child in any significant way.

Moreover, the Court appropriately emphasized that there was also no substantial or serious risk of harm to the child thus sustaining a neglect finding based on the evidence and forecast of a serious incurring harm.   Specifically, the Court expounded “[w]e conclude that the expert testimony in this case, which consisted almost entirely of speculation about what ‘could’ happen and general statements of concern about the parenting abilities of persons with delusional disorders, did not suffice to establish the substantial risk of serious injury necessary to support a finding of neglect based solely on a risk of future harm.”

This is a right decision and also at the right time.  In that the Court of Appeals is more rigorously expanding on the parental rights and preferences while curtailing and qualifying finding of neglect or the requisite legal standard used thereof.

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The recent Court of Appeals case on a competing adoption petition litigation issued on August 22, 2013 (citation below) defined with more specificity the meaning of “weighty consideration” given to parents’ choice of a fit custodian.  Here the parents whom have been adjudicated as having neglected their children consented to E.A., the great aunt’s adoption petition competing against W.s the foster parents.   The attachment study that was conducted did not factor or involved the children’s attachment to E.A.  In short, it was one sided attachment evaluation.  The study clearly established though a secure attachment to W.s – the foster parents.   The study also deemed the impact of removal as devastating.   Another bonding study conducted by the assessment center between the petitioners, parents and the children also favored the W.s – that the children were most attached to W.s. That removal from their home would possibly cause high risk of derailment.

It appears however that the Court’s opinion in the matter way swayed by Dr. Missar’s testimony, which only offered criticism of the two evaluations conducted.  That is “Dr. Frank was not in a position to offer an opinion about the children’s attachment to any party because she had only conducted an assessment of their bonding.  As for Dr. Venza’s evaluation, Dr. Missar found the primary limitation to be that he did not assess the children’s attachment to their biological family, including E.A.”

The Court in ruling that the trial court did not give weighty consideration to the parent’s preferred custodian stated: although the competing petitioner need not necessarily show that the preferred petitioner is unfit in order to prevail, if the preferred caregiver is a fit custodian, the competing petitioner must present clear and convincing evidence that the custodial arrangement with the preferred petitioner is “clearly contrary” to the children’s best interests.       Such evidence was lacking as there was no significant bonding study or an attachment study conducted involving the EA the parents’ choice.

In another word: if the petitioner preferred by the natural parents is fit suitable, and the custodial arrangement, including the relationship the natural parents will have with the child, will not harm the child, the award of custody to the preferred caregiver is, as a matter of law, in the child’s best interest.

In conclusion the Court ruled that absent a fair and equitable attachment and bonding study involving EA, the trial court cannot rule as a matter of law that there “is clear and convincing evidence in the record that a custodial relationship, preferred by the biological parents, with an otherwise fit and suitable caregiver would be clearly2 contrary to the children’s best interest merely because the children are found to be attached to the competing petitioner.”

This case is consistent with the Court of Appeals other recently published cases where the Court is requiring more deference by the trial court when there is either a fit parent ready to assume care, or a designated fit relative selected and preferred by the biological parents to assume care.  This case and its predecessors are clear signal that biological ties and deference cannot be easy overlooked or curtailed without significant consideration and as the Court words it “a weighty consideration.”





Nos. 11-FS-1217, 11-FS-1218, 11-FS-1255, 11-FS-1256, 11-FS-1257, 11-FS-1258, 11-FS-1259, 11-FS-1260

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