Family Law

Family Law Section April 2013 Newsletter


Introduction
As members of the Steering Committee for the Family Law Section of the D.C. Bar, we are excited to bring you the first edition of our newsletter. We hope that this newsletter proves to be informative and interesting, and as always, we welcome your feedback!
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Upcoming Events and Programs
Please visit the D.C. Bar Web site for additional information or to register.

Domestic Relations Bench-Bar Dialogue
Tuesday, April 23, 2013
5:30 p.m.–8:00 p.m.
Arnold & Porter LLP
555 12th Street, NW

Divorce and Retirement Assets: What You Need to Know (But Are Afraid to Ask)
Tuesday, May 21, 2013
5:30 p.m.–7:30 p.m.
D.C. Bar Conference Center
1101 K Street, NW

Communicating with Pro Se Parties
Thursday, May 23, 2013
12:30 p.m.–1:30 p.m.
D.C. Superior Court
500 Indiana Avenue, NW
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Save the Date
This program is not yet open for registration and does not yet appear on the D.C. Bar Web site. Please mark your calendars now and watch for an email announcment when the event is open for registration

Domestic Violence Bench-Bar Dialogue
Tuesday, June 25, 2013
5:00 p.m.–6:30 p.m.
D.C. Superior Court
500 Indiana Avenue, NW
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Overview of Recent Programs

The Role of the Child Support Services Division (CSSD) in Child Support Matters
“Arrears," "Modification," "Enforcement Tools," "$150 Pass-Through and Debt Forgiveness" and "IV-D agency” were terms many of the attendees had heard but were not sure of their meanings until their participation in this brown bag lunch discussion. The event was held on January 15, 2013, at D.C. Superior Court. The presenters were Tianna Terry, Senior Staff Attorney of the Legal Aid Society of the District of Columbia and Tanya Jones Bosier, Assistant Attorney General of the Office of the Attorney General for the District of Columbia.

The presenters gave a comprehensive overview of the role and function of CSSD, the District’s child support agency. The presenters also discussed the types of cases in which CSSD becomes involved, the process to get CSSD to intervene in a privately enforced domestic relations matter, as well as when a litigant should seek legal representation on their behalf. The attendees were excited to learn about the $150 Pass-Through, which allows Temporary Assistance for Needy Families (TANF) families to receive up to $150.00 of their child support payment without losing any portion of their TANF benefits. The attendees were equally excited to learn about the treatment of arrears, past due child support payments and the procedure to seek a modification of a child support order while a non-custodial parent is incarcerated. CSSD’s accessibility to enforcement tools, such as driver’s license revocation, bank seizures, passport denial, credit bureau reporting and tax intercept created a steady buzz during the discussion. The attendees asked a lot of questions about CSSD empowerment programs such as the Fathering Court, NCP Employment Program and Fresh Start Debt Forgiveness Program, which affords an opportunity for up to 100% of arrears owed to the District to be forgiven (wiped off the books).

In addition to hearing about the role of CSSD, the attendees received a host of pamphlets, handouts and resource materials for themselves and for their clients.
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Electronic Evidence in Family Law: Perry Mason Goes Digital
Facebook, twitter, email, text messages, spyware, GPS trackers, Spoofing, Trap Call, recoverable data, unrecoverable data -- Whew!We’re all trying to keep up with the plethora of electronic data out there, and the law that governs its use. So, in early March, the Family Law Section invited Sharon D. Nelson, Esq., and John W. Simek, President and Vice President of Sensei Enterprises, Inc., to speak at this brown bag lunch program. Ms. Nelson and Mr. Simek provided an entertaining and comprehensive overview on the various ways one can obtain electronic evidence, practice tips on how to protect your client, and the relevant legal framework. The event attracted practitioners from a wide array of backgrounds, including government attorneys, firm associates and nonprofits, and was a tremendous success. If you missed the event and would like to obtain a copy of the presentation, you can request one by email.
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Family Law Section Volunteers Help with 14th Annual Youth Law Fair
On March 9, 2013, the D.C. Superior Court hosted the 14th Annual Youth Law Fair under the leadership of Judge Melvin Wright, with the sponsorship of the Litigation Section and cosponsorship of the Family Law Section, as well as other sections of the D.C. Bar. The Law Fair invites local high school kids to come to the court for the day to learn about their rights and responsibilities in our legal system, to encourage their future involvement in important legal and social issues and to encourage consideration of careers in the legal field.
The hundreds of attendees received tours of cell blocks and courtrooms, attended speak-out sessions and, as the highlight of the day, actively participated in mock trials, acting as litigators, judges, clerks, witnesses and jurors. The mock trial was the fictional prosecution of a high school student who was charged with violating the District’s new Anti-Bullying legislation. Thanks to the efforts of numerous volunteers from the Family Law Section, attorneys of other sections and several judges of the Superior Court, hundreds of these high school kids were given the chance to live out an abbreviated court trial, from beginning to end.

The focus of the day was to make the event fun for the kids, and they got very involved and took the mock trial very seriously. However, it was universally reported that children and attorney volunteers alike found the experience to be both a great deal of fun, as well as educational.

Every year, the Youth Law Fair serves the District’s youth so well, and is as much fun as it is, because of the involvement of its volunteers. All attorneys in the section should feel encouraged to offer to volunteer at the 15th Annual Youth Law Fair next year. It is a worthy and worthwhile endeavor.
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Which Hat Am I Wearing Today? Challenges of Representing Various Parties in Abuse/Delinquency Cases
On February 12, 2013, the section's Neglect & Juvenile Practice Committee held a brown bag presentation entitled "Which Hat am I Wearing Today? Challenges of Representing Various Parties in Abuse/Delinquency Cases." Jamie Argento Rodriguez moderated the event and panelists included Judges Raffinan and Mullin, and attorneys Jack Gilmore, Jon Krell and Hannah McElhinny. The event comprised an engaging discussion regarding the due process rights of parties in abuse/neglect and juvenile matters and the best interest standard applicable to the children who are the subject of these proceedings. We thank all who participated in and attended the event.
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Volunteer Opportunities
We also welcome your involvement in the many volunteer opportunities sponsored by the Family Law Section. As you may know, the Family Law Section regularly provides volunteers for both the D.C. Bar’s Advice and Referral Clinic and the Family Court Self Help Center. In both of these settings, experienced family law attorneys can provide desperately needed legal assistance without actually taking on a pro bono case. In a couple of hours on a Saturday morning at the Advice and Referral Clinic, or during a weekday shift at the Self Help Center, you can make an immediate and tremendous difference for indigent individuals who cannot afford legal assistance. Section volunteers have had terrific experiences at both the Advice and Referral Clinic and at the Self Help Center and we urge you to join us. If you would like to volunteer, or if you would like more information about either of these opportunities, please contact Christopher Locey.
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Section Listserv E-mail List
We strongly encourage you to join the Family Law Section Listserv e-mail list, if you have not done so already. By joining this free interactive list, you will receive messages from your colleagues in the Family Law Section and will be able to send messages to the entire group at once. To register, click here.
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So Ordered
The So Ordered section of this newsletter provides case summaries of decisions from the Family Court of the Superior Court for the District of Columbia and D.C. Court of Appeals.

Miranda Warnings Not Warranted; Juvenile Not in Custody
In re A.J.
11-FS-644
March 28, 2013

Background
The District appealed the trial court’s order suppressing a statement of juvenile to a police officer about a BB gun and the BB gun, itself. A.J. and his companion were questioned about why they were not attending school on this day. The companion produced a document showing that he had been suspended from school and he left after the police officer informed him that he was free to leave. The police officer attempted to contact A.J.’s parents but was unable to. The police officer could not let A.J. go because he was under the age of sixteen and a truant. The police officer told A.J. that he would drive him to A.J.’s father’s house. The police officer informed A.J. that he was going to put him in the back of the car and asked him did he have anything on him that the officer needed to know about. A.J. responded that he had a BB gun and produced the BB gun. The officer did not read A.J. his rights under Miranda prior to asking the question.
A.J.’s counsel filed a pretrial motion to suppress the statement and the BB gun itself.

After an evidentiary hearing, the judge held that A.J.’s incriminating statement was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966) and held that A.J. was in custody when he admitted to having the BB gun thus entitled him to the warnings required by Miranda before interrogation began. The judge agreed that a person in A.J.’s position would not have believed that he was free to leave and was in police custody.

Analysis
The court analyzed Miranda and it progeny to determine whether A.J. was in custody, which significantly deprives one’s freedoms and triggers the Miranda warning, or seizure, which is less onerous. The court restated as in Miranda, California v. Behler, 463 U.S. 1121, 1125 (1983), Terry v. Ohio, 392 U.S. 1 (1968), and McIIwain v. United States, 568 A.2d 470, 472-73 (D.C. 1989), the Supreme Court defines custodial interrogation narrowly to include only those cases in which there has been a “formal arrest or restraint on freedom of movement to a degree associated with a formal arrest. The court further cited a progeny of cases that held stops for investigative purposes are not enough to establish that a person is in custody for the purposes of Miranda. Bates v. United States, 51 A.3d 501 (D.C. 2012); Morris v. United States, 728 A.2d 1210, 1216 (D.C. 1999).

As in In re I.J., 906 A.2d 249 (D.C. 2006) the court recognized that most brief investigative Terry stops deemed reasonable under the Fourth Amendment will not trigger the protections of the Fifth Amendment. The court held that in the present case, a reasonable person in A.J.’s position would not have believed that his liberty was restricted to the degree associated with a custodial arrest. A.J. was not handcuffed or otherwise restrained nor did the police officer accuse him of a crime. The police officer temporarily seized A.J. to transport him to his home for the purposes of investigation. Although A.J. was detained, he was not in custody for Miranda purposes.

The court also held that A.J. was detained because of the suspicion of truancy, where a typical detention is warranted and not for the suspicion of a crime. Further, the court held that the meaning of the term “custody” is different in the truancy law from the meaning to trigger rights under Miranda.

The court disagreed with the trial judge’s decision to order the suppression of A.J.’s statement and of the BB gun.

Holding
The decision of the Superior Court is reversed and the case is remanded to that court with the direction to deny A.J.’s motion to suppress.
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Standard of Proof for Child Custody in Neglect Proceeding
In re D.S., K.M. B.S., R.S., T.S. & P.S.
10-FS-1556, 10-FS-1557, 10-FS-1558, 10-FS-1559, 10-FS-1560, 10-FS-1561
February 21, 2013

Background
This case is before the court on a petition for rehearing filed by the government. The government contends that the appropriate standard of proof for determining temporary custody in neglect cases is by preponderance standard and not by clear and convincing evidence.

In re D.S., 52 A.3d 887 (D.C. 2012), the court reversed a trial court’s decision committing six children to the Child and Family Services Agency (CFSA) because the trial court applied an incorrect legal standard by failing to give meaningful weight to the children’s father’s right to presumptive custody. The trial court applied the preponderance of the evidence standard as opposed to clear and convincing evidence.

Analysis
To reach its decision to reverse the trial court in In re D.S., the court relied on prior case law which applied the clear and convincing standard when a father satisfied his constitutional “opportunity interest” and is ruled “fit” to raise the child. In re S.G., 581 A.2d 771 (D.C. 1990), the court held that the parental presumption applies to temporary custody and to rebut the presumption the moving party must do so by clear and convincing evidence. It was in In re J.F., 615 A.2d 594 (D.C. 1992), where the court directly construed the presumption at issue as a statutory presumption with constitutional underpinnings that court only be rebutted by clear and convincing evidence. In re J.F. 615 A.2d at 598. In re J.F., the father had substantially supported his children throughout their lives and was found to be fit. The father grasped his opportunity to parent the children. Therefore the court reversed the trial court’s order awarding the grandmother temporary custody because the trial court applied the incorrect preponderance of the evidence standard instead of clear and convincing standard to rebut the parental presumption.

In this case, no one suggested that the father did not grasp the opportunity to parent the children. He spent weekends with them and they felt safe with him. With respect to fitness, the father was not the subject to the neglect proceeding and was not found to be unfit. Therefore, he grasped the opportunity to parent his children and was fit to raise them. The standard of proof to rebut his parental presumption is clear and convincing.

Holding
The court reaffirms that the standard of proof for determine temporary custody in neglect cases is clear and convincing evidence and not preponderance absent a showing that the father has failed to meet the threshold criteria for custody; “opportunity” and “fitness.”
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Corroboration Rule: Degree of Extrinsic Evidence
In re K.A.
10-FS-1614
February 7, 2013

Background
On appeal, K.A. challenges his conviction on several grounds. The court however only addressed the ground of whether K.A.’s confession was constitutionally admissible in accordance with Opper v. United States, 348 U.S. 84 (1954); Smith v. United States, 348 U.S. 147 (1954); and In re J.H., 928 A.2d 643 (D.C. 2007) and Super. Ct. Juv. R. 111. This line of cases requires the government to introduce substantial independent evidence which would then to establish the trustworthiness of the statement before the confession can be submitted to the jury and can sustain a conviction. In re J.H., 928 A.2d at 651.

At the time of K.A.’s arrest, he resided with his grandfather, I.A., and cousin, Terrell. K.A.’s grandfather suffered from diabetes and was confined to the apartment on doctor’s orders due to a recent stroke-related injury. K.A. ran errands for I.A. I.A. was the subject of an anonymous tip that there were three (3) individuals with guns were in the apartment. The Metropolitan Police Department Gun Recovery Unit responded. When they arrived, K.A., I.A., Terrell and four of K.A.’s friend’s were present. I.A. gave MPD permission to search for guns. MPD found handguns and loose ammunition under the mattress in I.A.’s room.

The officer handcuffed I.A. and told him that he was under arrest. The officers checked the identification of the other individuals. The officers continued to search the apartment and called for back-up. After more than one (1) hour of searching and investigation, I.A. became visibly ill and required medical attention. K.A. observed I.A. receiving medical treatment from the emergency medical service (EMS) and after an hour and a half, K.A. confessed that the guns were his and gave a description. K.A.’s attorney moved to have the confession and BB guns suppressed in a motion to suppress and during closing arguments; the trial judge denied both motions.

Analysis
In analyzing the requirements set forth in Opper and J.H. and the prevailing rationale, which is to avoid false or untrustworthy confessions, the court held independent evidence, other than the confession, is required to support a conviction based on the facts of each case. The court followed its analysis in J.H. by restating the more untrustworthy the circumstances under which a defendant [gives] his confession the more substantial the independent evidence must be to justify inference of [its] truth. J.H., 28 A.2d at 651.

The court held that while K.A.’s confession was voluntary, it was less than trustworthy because it was made after being questioned by a number of officers for over an hour. During this entire time, I.A. remained handcuffed and the officers repeatedly stated that they were willing to arrest I.A. despite his illness. K.A. admission of guilt came after I.A. was receiving emergency medical treatment while handcuffed.

The court further held that K.A.’s ability to describe the guns only proved that he had seen the guns before but did not establish that he had exercised “dominion or control over” the guns. Rivas v. United States, 783 A.2d 125, 129 (D.C. 2001). The court held that given circumstances, it did not support the inference that K.A. possessed the guns.

As such, K.A.’s knowledge of the guns is insufficient to serve as independent evidence to make the confession trustworthy and to support a finding of being involved. The government could have given testimony of other witnesses to corroborate K.A’s confession and that he had control over the guns.

Holding
The judgment of the trial court is Reversed and Remanded with Directions to Enter a Judgment of Acquittal.
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Parent’s Mental Health Information; Interplay Between the Confidential Privilege of Mental Health Information and the Child Custody Statutes
A.A. v. S.A.
D.C. Super. Ct. No. 12 DRB 1632
December 11, 2012

Background
A.A. filed a complaint for custody alleging that the defendant, S.A., suffers from a mental illness and as a result cannot provide care for A.A.A., their 23-month old child, and therefore asked the court to award him sole legal and physical custody. S.A. filed an answer and counterclaim denying suffering from any mental illness and stated that she benefited from prescribed medication for depression and anxiety caused by A.A. S.A. asked the court to award her sole legal and physical custody and set a visitation schedule. A.A. filed a motion to gain access to S.A.’s mental health information and permission to depose the therapist and other mental health providers. A.A. contends that the statutory privilege protection confidential mental health information does not apply when the recipient of the treatment is a party in the child custody dispute, mental health is relevant to the court’s determination of the best interest of the child, and S.A. placed her mental health status at issue and waived the privilege when she filed the counterclaim.

Analysis
The court analyzed three (3) considerations: (1) whether the child custody statute creates an implied exception in custody matters to the statutory privilege protecting mental health information; (2) the use of the exercise of the paren patriae powers to pierce the privilege in the best interest of the child; or (3) deem the party’s actions as an implied waiver of the party’s statutory privilege.

The court analyzed several well-established principles of statutory interpretation as a guide to determine whether the custody statute creates an implied exception in custody cases to the statutory privilege protecting confidential mental health information. The court held that under the plain language rule, the child custody statute does not give an exception to the confidentiality statute in custody matters. The court recognized that the custody statute is silent on the court’s ability to pierce the confidentiality privilege to get the parent’s mental health information and does not identify the types of mental health information to be used to prove the parent’s mental health status. Therefore, the custody statute does not create an implied exception to the statutory privilege protecting the confidentiality of mental health information.

The court analyzed the harmony rule of statutory construction which requires courts to interpret the statute in a way to avoid conflict. The court held that the statutes can be harmonized because the mental health of the parent can be proven by other evidentiary sources such as lay testimony and other expert testimony without invading or piercing the statutory privilege protecting mental health information.
The court considered the order in which the statutory provisions of the custody and privileged statutes were passed; more specifically last in time, last in right. The court held that given that the governing mental health statute, the District of Columbia Mental Health Information Act of 1978, had been amended most recently in 2009 to expand the doctor-patient privilege and the child custody statute had not be amended since 1977 regarding the requirement of the parents’ mental health to be a relevant factor in the determination of child custody, the mental health statute governs. Thus, there is no exception to the confidential privilege in custody cases. The court also held that the mental health statute is more specific with respect to when the privilege is and is not applied where the custody statute is very general as it relates to custody-related issues only. In analyzing all the rules of statutory construction, the court held that there is no exception to the confidentiality privilege of mental health information in custody cases.

The court also held that S.A. did not waive her confidential privilege because she did not put her mental health at issue. It was A.A. who alleged that S.A. suffered from a mental illness that prevents her from parenting their child. The court held that S.A. statements were made in response to A.A.’s allegations.

Lastly, the court held that although it has paren patriae powers to override the statutory privilege and obtain the parent’s mental health information, the court will only do so in limited circumstances such as if there is no other means in which to obtain the information or that the information is necessary to resolve the custody dispute. The court held that A.A. did not meet this standard and that it would not invoke its paren patriae powers to override the statutory privilege and obtain the S.A.’s mental health information.

Holding
A.A. Motion for Leave to Conduct Discovery of S.A.’s Confidential Mental Health Information is Denied.
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Sufficiency of Evidence to Sustain a Finding of Neglect and Visitation Rights
In re M.F.
08-FS-733
September 27, 2012

Background
J.F. appealed the associate judge’s decision to affirm the magistrate judge’s finding that M.F. is a neglected child within the meaning of D.C. Official Code §§ 16-2301(9)(A)(i), (ii), (iii) and (x). On appeal, J.F. presented three (3) challenges: (1) that the evidence was insufficient to support the adjudication of neglect because the court relied on inadmissible hearsay evidence; (2) that the court erred by failing to compel the government to provide J.F. with a copy of a taped interview of M.F. and (3) the court erred when it denied visitation rights to J.F.

Analysis
In analyzing the sufficiency of the evidence, the court viewed the evidence in the light most favorable to the government and drew every reasonable inference in the government’s favor. In re De. S. 894 A.2d 448, 451 (D.C. 2006). The court reviewed the testimony of five (5) government witnesses: two (2) doctors, one (1) social worker, one (1) principal and M.S., M.F.’s biological mother. M.F. made out-of-court statements to Dr. Carter and to the social worker about J.F.’s sexual abuse, drug use and M.F.’s fear of J.F. The government admitted these statements under the medical diagnosis exception to the hearsay rule. J.F. argued that these statements are inadmissible. The court held that even if the statements were admitted in error, the error was harmless because Dr. Carter’s testimony was consistent with and was corroborated by the testimony of the other witnesses. The court held that because J.F. did not object to the social worker’s testimony on hearsay grounds during the trial, raising the claim on appeal is insufficient. Therefore, all of the evidence as a whole strongly supports an adjudication of neglect.

With respect to argument that the government should have been compelled to provide a copy of the interview conducted by the Child Advocacy Center (CAC), the court held that tape was in the possession of the United States Attorney’s Office and not in the possession of the Attorney General’s Office. Myers v. United States, 15 A.3d 688 (D.C. 2011) (holding that there was no breach of duty for the government to produce a video recording because the recording was never in the government’s possession). The court also held that J.F. was not prejudiced by not having access to the taped interview because none of the witness’ testimony addressed the substance of the interview.

Lastly, the court held that because the trial court’s temporary visitation order allowed for the possibility of visitation after the completion of the pending criminal case against J.F., the order was only temporary and not an indefinite denial of visitation like in In re D.M., 771 A.2d 360 (D.C. 2001).

Holding
The judgment of the trial court is Affirmed.
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Sufficiency of Evidence to Support a Finding of Neglect; Children Without Proper Parental Care or Control, Parent Unable to Discharge Responsibilities Because of Mental Incapacity
In re P.B., D.B., & T.B.
10-FS-1590, 10-FS-1591, 10-FS-1592
August 23, 2012

Background
The appellant, L.B., the mother of P.B., D.B. and T.B., appealed the trial court’s judgment affirming the magistrate judge’s ruling that the children are neglected children within the meaning of D.C. Official § 16-2301(9)(A)(ii), that the oldest child, P.B. was without …education as required by law and that all three children are neglected within the meaning of D.C. Official § 16-2301(9)(A)(ii) because they were “without proper parental care or control . . . necessary for [their] physical, mental, or emotional health” and that the children were neglected within the meaning of D.C. Official § 16-2301(9)(A) (iii) because L.B. suffered from a mental incapacity that prevented her from “discharge[ing] . . . her responsibilities to and for the child[ren].” L.B. also challenged the decision of the Child and Family Services Agency (CFSA) to remove the children because it was made after a single visit to the home.

Analysis
The court applied the standard of review as stated in In re E.H., 718 A.2d 162, 168-69 (D.C. 1998), “[the court] must view the evidence in the light most favorable to the District and draw every reasonable inference in the District’s favor.” The court also restated that “[it] will reverse a finding of neglect only if it is plainly wrong or without evidence to support it.” In re A.B., 999 A.2d 36, 44 (D.C. 2010).

The court held that the trial court was not plainly wrong in finding that P.B. was without education as required by law because he missed days of school, was in danger of failing due to absenteeism and had not been enrolled in school one month after moving back to the District from Maryland, where the Department of Social Services had made ten to fifteen attempts to visit L.B. between December 2009 and April 2010.

The court held that the trial court was not plainly wrong to find that the children were without proper parental care or control because the District established a pattern of neglect through testimony of social workers, relatives and mental health professionals. The testimony established that from a time after P.B.’s birth to the family’s move to the District, L.B.’s home was dirty and unsanitary, her children had poor hygiene and she consistently refused to cooperate with social workers. The court rejected L.B.’s challenge that the evidence of neglect occurred years ago. The court upheld the trial court’s consideration of events that occurred several years before the District filed neglect proceeding as it held in In re E.H., 718 A.2d at 170. Also, in In re Am V, 833 A.2d 493, 496 (D.C. 2003) the court upheld a trial court’s finding of neglect based on “a pattern of neglect” that “existed over an extended period of time with respect to the children’s hygiene, clothing and timely attendance at school.”

Lastly, the court held that the trial court was not plainly wrong in finding that L.B. suffered from a mental incapacity that prevented L.B. from discharging her responsibilities to and for her children. The court noted that the proof of mental incapacity alone is not enough; the government must also show a “nexus between a parent’s mental incapacity and an inability to provide proper parental care.” In re N.P., 882 A.2d 241, 251 (D.C. 2005). The court held that the trial court based its finding of mental incapacity on the testimony of numerous witnesses who described L.B.’s paranoid beliefs, delusional thinking, erratic behaviors and seclusion. Even L.B.’s own witness, Dr. Maddineni, confirmed that she suffered from a particular mental illness and if she suffers from paranoid and delusional behaviors, without treatment it would impair one’s ability to care for their kids.

Holding
The judgment of the trial court is Affirmed.
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