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
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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
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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
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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
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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
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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
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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
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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
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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
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WHAT IS THE LEGAL DEFINITION OF “IN LOCO PARENTIS”?
The DC Court of Appeals early on in Fuller v. Fuller, 247 A. 2d (1968) defined the term as a person who willingly puts himself in the role of legal parenting of a child, that is day to day care of the child such as: providing subsistence, food, shelter, medical care, etc – without going through the formalities of a court decreed legal relationship such as child custody, guardianship or adoption. In short, assuming parental status and discharging the parental duties without legally being required to do so. Traditionally and often the grandparents who take over the parenting of a
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