In re D.S.
2012 D.C. App. LEXIS 736
| D.C. | 2012Background
- CFSA removed six siblings after mother's abuse; father lived separately but maintained significant relationship with the children.
- Mother stipulated neglect; magistrate ordered CFSA custody for up to two years pending reunification.
- Father repeatedly sought custody or unsupervised visitation, asserting fitness and ability to care for the children.
- Initial shelter-care/disposition decisions focused on agency concerns (health, housing, dental neglect) rather than recognizing a parental presumption.
- Court remanded for reconsideration to apply the parental presumption and the clear-and-convincing-evidence standard when rebutting it.
- On rehearing, opinion clarifies failure to weigh the parental presumption and necessity of rigorous factual findings before overriding it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the parental presumption properly applied at disposition? | J.M. had a presumptive right to custody as a fit parent. | The record showed concerns about health and home conditions; presumption could be outweighed. | Reversed and remanded to apply the parental presumption with clear-and-convincing evidence. |
| Was there sufficient evidence to defeat the parental presumption and place children with CFSA? | Record showed ongoing relationship and safety with father; no fitness finding. | Agency concerns about health, housing, and dental neglect supported placement away from father. | Record did not establish fitness or clear evidence to rebut presumption at disposition. |
| Should the standard of proof be clear and convincing to rebut the presumption for temporary custody? | Clear-and-convincing standard is required to protect the parental opportunity interest. | Preponderance standard could apply given context of neglect proceedings. | Yes; the presumption requires clear-and-convincing evidence to override. |
Key Cases Cited
- In re S.G., 581 A.2d 771 (D.C.1990) (parens patriae; parental presumption applies to temporary custody; needs careful consideration)
- In re J.F., 615 A.2d 594 (D.C.1992) (requires recognizing the parental presumption and clear findings when rebutting it)
- In re L.J.T., 608 A.2d 1213 (D.C.1992) (fitness and proper consideration of parental status in disputes with noncustodial parent)
- In re A.G., 900 A.2d 677 (D.C.2006) ( guardianship context; discusses standard in related proceedings; relevance to presumption not controlling here)
- In re S.M., 985 A.2d 413 (D.C.2009) (recognizes broad definition of fitness and presumption limits)