In re D.S., 60 A.3d 1225

This is a petition for rehearing in a child neglect case where the trial court determines neglect first and then temporary custody pending further proceedings.
The government argues the custody disposition should be decided by preponderance of the evidence, not clear and convincing evidence, when the father has an opportunity and is fit.
The panel previously held that, where a father has grasped his opportunity and is fit, the custody disposition in a neglect case requires clear and convincing proof.
The court cites In re S.G. and In re J.F. to support applying a clear-and-convincing standard to rebut the parental presumption in temporary custody.
The court distinguishes this from In re A.G., which involved guardianship where termination of parental rights was not at issue, to justify differing standards.
In the present case, the father had an established relationship with the children, was not the subject of the neglect petition, and was not found unfit; thus, the government must show clear and convincing evidence that custody with CFSA is in the children's best interests.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standard for temporary custody in neglect	Government argues preponderance suffices for custody.	Father's opportunity and fitness require clear and convincing standard.	Clear and convincing standard applies
Applicability of parental presumption to temporary custody	Presumption favoring custody may be overcome by evidence under preponderance.	Presumption is statutory and constitutional and requires clear and convincing proof to rebut.	Parental presumption rebuttable only by clear and convincing evidence
Relation to In re A.G. and other guardianship rulings	Precedent from A.G. supports preponderance in custody decisions.	A.G. is distinguishable; custody in neglect with opportunity/fitness requires stricter proof.	A.G. does not control where opportunity and fitness are present; clear and convincing proof required
Effect of neglect adjudication on custody standards	Neglect adjudication with custody already supported by law.	Different burdens of proof apply to custody disposition when there is an opportunity/fiteness	Custody disposition uses clear and convincing standard when opportunity/fitness apply

In re S.G., 581 A.2d 771 (D.C.1990) (parens patriae and parental preference apply to temporary custody with lasting impact)
In re J.F., 615 A.2d 594 (D.C.1992) (presumption of fit parent and rights must be acknowledged with clear and convincing evidence)
In re A.G., 900 A.2d 677 (D.C.2006) (preponderance standard in guardianship context; distinction from custody with opportunity)
In re T.W.M., 964 A.2d 595 (D.C.2009) (affirmed weight of a parent's choice of custodian; clear and convincing standard where rights intact)
In re T.J., 666 A.2d 1 (D.C.1995) (parental choice in custody decisions and evidentiary standards)