In re K.M.

BELSON, Senior Judge,

dissenting:

I dissent from the majority’s reversal of the Superior Court judgment that KM. is a neglected child pursuant to D.C.Code § 16-2301 9(A)(ii) and (iii) (2012). Rather, I agree with K.M.’s Guardian ad Litem, the magistrate trial judge and appellee District of Columbia that the evidence was sufficient to establish neglect by a preponderance of the evidence. I also point out that even though the majority concludes the evidence presented at trial was insufficient to establish neglect, it also takes judicial notice of the recent order from the Family Court that awarded KM.’s maternal grandmother, V.J., permanent guardianship of K.M. 1 I will say more below about this salutary development in the troubled life of K.M. but, given the record before us, I suggest that the most appropriate course for this court to take in the circumstances is not to reverse the judgment of neglect, and thereby put the guardianship at risk, but instead to remand the case to the Superior Court so that it might have the opportunity to consider additional evidence of neglect that was apparently available but not made a part of the record, and thus not considered at trial. D.C.Code § 17-306 (2001); D.C. Fam. Ct. R. D(e)(l)(b).

I.

At the heart of the fact pattern giving rise to this case is the delusional disorder, persecutory type, suffered by the unfortunate L.M., mother of respondent K.M., who was eleven years of age at the time this case was petitioned. K.M. and L.M. were living by themselves in a transitional emergency housing unit in Northwest Washington at the time. L.M.’s mental condition was causing her to have bizarre thoughts and beliefs not based in reality. She believed, for example, that imaginary persons named the Smalls and the Tuckers began to harass her commencing in 1993, when she lived in Georgia, and followed her when she moved back to the Washington area. She told Dr. Susan Theut, a psychiatrist who conducted a court-ordered forensic psychiatric evaluation of L.M., that the Smalls and the Tuckers *238 meant to hurt her, and had broken into her home, gone through her belongings and had stolen things from her. Illustrative of how bizarre her thinking had become was her statement to Dr. Seth King, a psychologist, that the Smalls and Tuckers had driven through her neighborhood in a car, throwing eggs at her and “mooning” her as they drove by. L.M. had written to the FBI, CIA, and U.S. Marshals Service about the misdeeds of her imaginary tormentors.

On September 30, 2010, the Child and Family Services Agency (CFSA) received a child abuse and neglect hotline call concerning L.M.’s mental health and her ability to care for her son, K.M. A CFSA investigator, Guillermo Cintron, interviewed L.M. at her home the next day. Based on her responses, he became concerned that she might be suffering from paranoia. But because the housing unit was clean and there was ample food, he decided not to remove K.M. from the home. Social worker Meghan Snyder had a separate lengthy conversation with K.M. about L.M. while Cintron spoke with her, but was not called to testify at trial, a matter I discuss below.

Greater concern about L.M.’s mental condition arose when Cintron interviewed K.M. at school a week later. Cintron testified he received a second hotline report assigned for immediate referral, which required a response within two hours. Cin-tron met K.M. in a private room at his school, where Cintron noted K.M. appeared a bit “timid,” and he “kept putting his eyes looking downward.”

Cintron testified that “K. stated that his mother had told him that she was going to knock his bricks off,” at which point opposing counsel objected, but was overruled. The court determined that KM.’s out-of-court statement was not hearsay because it was being admitted only to show the effect of the statement on Cintron and others at CFSA. Cintron then clarified for the court that K.M. told him that to knock one’s bricks off means to “hurt you really bad.” Cintron then related K.M.’s telling of the events that led up to his mother’s threat, and how, afterwards, he had gone to bed and he could hear his mother singing along with the radio and intermittently saying “shut up K.” even though he was lying quietly in his bed.

Cintron then asked K.M. if he felt safe going home, to which K.M. replied that “he did not feel safe,” and “he didn’t know what his mother was going to do to him.” L.M.’s counsel objected on grounds of hearsay but the government countered, arguing that the statement was admissible under the present state-of-mind exception to the hearsay rule. See Fed.R.Evid. 803. The magistrate judge disagreed, finding that the timing was not right. Explaining her ruling, the magistrate judge continued, “I think it would go to if K. were experiencing something — at this point, K. was just talking about something he was experiencing allegedly as opposed to actually something he had been experiencing.” In so ruling, I suggest, the magistrate judge erred, and Cintron’s response should have been considered by the magistrate judge, 2 *239 even though it was not necessary to establish neglect by a preponderance of the evidence.

In arriving at the conclusion that K.M. was a neglected child, the magistrate judge considered the testimony of the two expert witnesses who interviewed L.M. and testified that she suffered from delusional disorder, persecutory type. The majority opinion states at page 231 that we must “focus our inquiry on whether there is sufficient evidence in the record that, as a result of his mother’s mental illness, KM.’s emotional and mental health either had been harmed or was threatened with harm to a degree permitting a finding of neglect.” I agree, and submit that an examination of the record shows clearly that there is adequate evidence to make the requisite showing.

The majority opinion also states, citing In re A.H., 842 A.2d 674, 685-86 (D.C.2004), that regarding future harm, the government must establish a “substantial risk of serious harm.” The record in this case does that as well, as I will explain.

I begin with pertinent language from our opinion in In re AH.:

In evaluating on appeal whether the District shouldered that burden, we must consider the evidence in the light most favorable to the government, giving full play to the right of the judge, as trier of fact, to determine credibility, weigh the evidence, and draw reasonable inferences. Deference is due to the trial court’s determination of abuse or neglect and we will not second-guess the trial judge on a very difficult call.

In re A.H., supra, 842 A.2d at 684 (internal quotations and citations omitted).

Adherence to the principles recognized in In re AH. calls for affirmance by this court. Two expert witnesses testified to the threat of harm to K.M. posed by L.M.’s mental illness and her resulting bizarre behavior. The magistrate judge credited their testimony and summarized the testimony of one of them as follows: “Dr. King felt that the psychological and emotional harm [K.M.] would suffer would be significant if [L.M.] did not successfully engage in treatment.” (emphasis supplied). This characterization of Dr. King’s testimony was accurate. The following excerpts from that testimony support the magistrate judge’s finding of potential significant harm:

• “[L.M.] denies that there is anything wrong with the way she is thinking about these conspiracies. She believes that they’re true, she believes that they’re real, and she does not believe that there’s anything negatively impacting her functioning or parenting abilities.”

• “I don’t think she is willing to seek treatment. I think she would be highly resistant to treatment,] ... [bjecause she does not think that there is any reason for treatment.”

• Dr. King listed the several negative outcomes expected from a parent with a disorder like L.M.’s: “There would be an impairment in ability to parent a child in that the lack of insight, poor judgment could affect decision-making. The focus and preoccupation *240 with the belief that someone is out to get her, or against her, could interfere with her ability to focus on the needs of the child. Also, it could interfere with her ability to work collaboratively with others such as school personnel, to be trusting enough to receive assistance if her child needed any assistance. Also, there’s a matter of modeling for a child when you’re a parent ... [and][t]he youth could adopt that way of thinking, that way of being distrustful, not wanting to work with others.”

• Dr. King also opined that if a child were to witness his parent talking to people that weren’t there, “[t]hat could be frightening for the child [and] it could be confusing for the child. The child could either start believing that there are other people to talk to that are actually not there. Or the child could eventually believe that the parent does have problems with reality ... which could impact that child’s ability to respect that parent or to believe in that parent’s authority.”

In addition, Dr. King testified: “A child’s interactions with the parents paves the way for the formation of relationships later on. This could have a serious impact on the child’s nature of relationships [sic ] that they have with others, having a stable basis or stable model for appropriate relationship.” Dr. King also concluded that if L.M. did not seek treatment for her mental condition, “[her delusional disorder, persecutory type] will have a negative impact on her ability to appropriately and effectively parent K.” He added that this “delusional disorder and the manifestation of it by his mother ... would have an impact on [KM.]” (emphasis supplied). Dr. King’s testimony established the substantial risk of serious harm required for a showing of neglect.

The government’s other expert witness, psychiatrist Dr. Theut, testified consistently to significant ill effects that K.M. would experience as a result of L.M.’s unfounded beliefs and the way she treated K.M. She testified that “children raised around people who have a delusional disorder become very scared and frightened.” 3 (emphasis supplied). Thus, this expert witness too testified to a significant harm.

II.

For the reasons I have set out, this court should affirm the judgment of the Superior Court. But if that judgment is not upheld, the appropriate action by this court is a remand rather than a reversal.

It is noteworthy that the Superior Court judge who reviewed the ruling of the magistrate judge considered other significant material in the file that was not placed in evidence at trial. Appellant’s principal argument for reversal is that the reviewing judge failed to confine her evaluation of *241 the magistrate’s ruling to the trial record; 4 and the District acknowledges that the reviewing judge should have so confined it. 5 If the reviewing judge was of the view that the record at trial should have included other significant and available evidence of neglect, the judge could have remanded the case to the magistrate judge so that the magistrate judge and the District, having been made aware of the reviewing judge’s assessment of the value of such evidence, could decide whether it should be considered at a reopened trial procedure. See D.C. Fam. Ct. R. D(e)(l)(b) (discussed further below); see also In re M.D., 758 A.2d 27, 84 (D.C.2000) (“[T]he trial court in a neglect proceeding ought not to be passive in the face of what it recognizes is a deficient presentation of evidence. In such a case the court may and should take affirmative steps to ensure that it has enough evidence before it to make an informed decision.”). As I have explained, however, the record evidence of neglect is sufficient to establish neglect by a preponderance of the evidence, even without the extra-record material the reviewing judge took into account. Thus, any error on the part of the reviewing judge in considering such material was harmless. But the availability of such material raises the question whether, if this court does not affirm, it should, in the best interest of K.M., remand this case so the magistrate judge, aided by the submissions of the parties, could determine whether to reopen the fact-finding hearing to consider additional evidence, and could also ascertain whether, in light of changed circumstances, appellant L.M. has changed her position. 6

The reviewing judge quoted at length from the account that social worker Meghan Snyder set forth in the Neglect Complaint Referral Form. The conversation she had with K.M. during Mr. Cintron’s initial interview with L.M. indicates that K.M. was experiencing fear and anxiety as a result of his mother’s continuing delusions:

[K.M.] stated that his mother thinks people go through her “undies”. [K.M.] shared his mother talks to herself at times, he believes his mother is “crazy”. [K.M.] states this is because she talks to herself and sometimes gets mad. According to [K.M.], when his mother gets mad she says things such as she is going to kill and blow “smalls” brains out. When asked who “Smalls” was, [K.M.] stated he is a character she made in her head. [K.M.] described his mother doing things like people on “Criminal Minds”. [K.M.] stated his mom yells at his grandmother, and other family members who are part of the “group” she describes. [K.M.] stated his mother has said she is going to buy a gun on the street. [K.M.] stated that he believes she will. [K.M.] stated that if strangers on the street look at his mother and then look forward, she might say something like “what the F are you looking at?” [K.M.] shared that his mom will sometimes call family members for food and when they bring food, she gets mad at them and doesn’t want them to help. [K.M.] shared he has seen his mother arguing with family and friends. [K.M.] stated he worried about getting hurt during these fights.

It would be for the trial court to rule in the first instance on the admissibility of *242 such testimony by social worker Snyder if the District offered it at a further hearing on remand. It can be argued that it reflects the fear and deep concern that were part of KM.’s state of mind as a result of his mother’s mental condition and attendant bizarre behavior. 7 K.M. was unavailable to testify himself about the matters he described to Snyder, as well as the events he described later to Cintron, because the magistrate judge had granted the Guardian ad Litem’s request that K.M. not be called as a witness because of the harm that testifying would cause him. In re Jam.J., 825 A.2d 902, 916-17 (D.C.2003).

The reviewing judge considered a few other matters that had not been included in the record of trial. They included records from the D.C. school attended by K.M. and written medical reports by Dr. King and Dr. Theut that were not fully brought out when they testified at trial. At a further hearing on remand, any such relevant evidence can be offered by the District.

I note that in a criminal case, when insufficiency of evidence is a ground for reversal, a further trial would not be available because of double jeopardy considerations. In civil actions it is occasionally available. 8 In Family Division matters, however, where the paramount consideration is the best interest of the child, there is little reason to forego further proceedings that may serve that interest. This court has the authority under D.C.Code § 17-306, to “remand the cause and ... require such further proceedings to be had, as is just in the circumstances.” 9

*243 The Superior Court Family Division rules give similar authority to Superior Court judges who are reviewing a magistrate judge’s order or judgment. General Family Court Rule (D)(e)(l)(B) provides that the reviewing judge “may affirm, reverse, modify, or remand, in whole or in part, the magistrate judge’s order or judgment and enter an appropriate order of judgment.”

This court can enter an order directing or authorizing a further trial proceeding in this case. See In re M.D., supra, 758 A.2d at 84 . Here, because K.M.’s grandmother has been awarded permanent guardianship over K.M., the most appropriate course would be a remand so that a further fact-finding hearing could be held by the magistrate judge, in which all relevant evidence, including the extra-record evidence relied on by the reviewing Superior Court judge, could be presented to aid in the court’s neglected child determination. This court has authority, in supervising the actions of the Superior Court as parens patriae, to order such a course to protect the best interests of K.M., even though no party has requested it. See In re M.D., supra, 758 A.2d at 38, 34 . It is true that if this court reverses, the District is free to re-petition the matter, but a reversal of the adjudication of neglect will place in some jeopardy the order granting K.M.’s grandmother permanent guardianship. 10 Thus a remand is preferable to a reversal.

The guardianship of K.M. by his grandmother, V.J., appears to be highly beneficial to K.M. 11 This court can take judicial notice of the findings of fact and conclusions of law set forth in the order granting guardianship. See Christopher v. Aguigui, 841 A.2d 310, 311 (D.C.2003). The facts found, of course, are not evidence to be considered in evaluating the sufficiency of *244 the showing of neglect in this appeal, but this court is aware of the effect that a reversal can have upon ongoing proceedings in the trial court. It will be for the trial court to handle this case after a reversal in such a way that, if possible, the Permanent Guardianship is not discontinued or interrupted pending the outcome of any further proceedings on the issue of neglect. 12 It will also be for the trial court to take any other available steps to prevent or manage disruptions of the seemingly stable life that K.M. has, according to the Guardianship order, been leading during the last two years.

For the foregoing reasons, I respectfully dissent.

. See Majority Opinion, at 237 n. 7 (noting this significant development in K.M.’s case while this appeal has been pending).

. A trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion, but that discretion must be based upon correct legal standards. Jones v. United States, 17 A.3d 628, 631 (D.C.2011) (citing Blackson v. United States, 979 A.2d 1, 6 (D.C.2009)). We review the legal question whether an out-of-court statement satisfies a particular hearsay exception de novo. Id. Here, the trial court ruled that K.M.'s out-of-court statement that he felt afraid to go home was not admissible under the present state-of-mind exception to the hearsay rule. The state-of-mind exception "permits the use of hearsay statements for the limited purpose of showing the state-of-mind of the declarant if the declarant’s state of *239 mind is at issue at trial.” id. at 632 (internal quotation marks omitted). The state-of-mind exception extends to statements of present mental states and emotions. Burgess v. United States, 608 A.2d 733, 738 (D.C.1992).

In this case, the court was tasked with determining whether K.M.'s mother had failed, or was unable, to provide K.M. parental care. K.M.'s concern about his mother's threats and his resulting concern that he was not safe at home are relevant to the central issue of the trial.

. Dr. Theut described the ability of a parent with a delusional disorder like L.M. to independently parent a child as "extremely poor.” When asked to elaborate, she explained that when a child is exposed to the parent's paranoia, "the child could then become fearful of other people, wondering if they’re going to hurt them also.” Also, Dr. Theut was concerned that over time, the child may "merg[e] with the personality of the parent who has the delusional disorder,” leaving the child "[un]able to discriminate between what is a delusion and what is reality.” Dr. Theut opined that the "long-term effects on a child that is parented by an individual with the same behaviors exhibited by Ms. M absent any treatment,” would include "concerns about [the child's] ability to trust others in the future, [and the ability to] differentiate between the delusions and reality.” Dr. Theut added, "I think reunification would be very problematic if she doesn’t seek treatment.” Dr. Theut also testified that, "specifically” speaking about L.M.’s ability to parent K.M., if she did not seek treatment, would be "very poor.”

. Brief for Appellant at 21, In re K.M. (2013) (No. 11-FS-1234).

. Brief for Appellee at 22, In re K.M. (2013) (No. 11-FS-1234).

.As noted at page 32 above and discussed below, while this appeal has been pending, the Family Court awarded permanent guardianship to K.M.’s maternal grandmother.

.In affirming the magistrate’s order, the Superior Court judge noted that K.M.’s fear of his mother is itself evidence of the type of emotional harm that would support a finding of neglect under D.C.Code § 16— 2301(9)(A)(ii). Indeed, this court has held that a child’s fear, caused by some action by the parent, can provide the basis for a finding of neglect. In In re NP, 882 A.2d 241 (D.C.2005), an older sister testified that the young subject of child abuse, I.P., ran to her room and hid under her bedcovers every time her parents began to yell at each other. We found this to be "strong evidence” that I.P. was “profoundly affected” by her parents’ behavior. Id. at 248 .

On further proceedings, the trial court would be able to consider K.M.’s verbal expression of his fear in the same way that it used I.P.’s physical expression of her fear — as circumstantial evidence of emotional harm suffered by the neglected child. K.M.’s statements to Ms. Snyder would not be considered for the truth of each individual statement, e.g., not to establish that L.M. intended to purchase a gun and blow the head off of "Smalls.” Rather, they would be admitted as evidence of the emotional harm suffered by K.M. — out-of-court statements used only as circumstantial evidence of K.M.'s fear. See Bennett v. United States, 375 A.2d 499, 503 (D.C.1977) (noting that victim's statement, "D threatened to kill me” can be treated as circumstantial evidence of victim's fear of D, but cautioning that instructions must be given to the jury so that they do not consider it for its truth); see also David F. Binder, Hearsay Handbook §§ 2:7, 2:9 (4th ed. 2012). In a jury trial, the court would have to give instructions so that the jury will not consider the statements for their truth. But in a non-jury trial, such as this one, the judge is "presumed to be able to know the proper use of evidence.” (Melvyn) Johnson v. United States, 636 A.2d 978, 981 (D.C.1994). K.M.'s statement to the social worker could provide circumstantial evidence of the emotional harm — the fear— experienced by K.M., relevant to a showing of neglect.

. See Super. Ct. Civ. R. 59(a).

. D.C.Code § 17-306 states in full:

The District of Columbia Court of Appeals may affirm, modify, vacate, set aside or reverse any order or judgment of a court or any division or branch thereof, or any administrative order or decision, lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate order, judgment, or decision, or require such further proceedings to be had, as is just in the circumstances.

. Under D.C.Code § 16-2383(a), "[a] guardianship order may not be entered unless the child has been adjudicated to be neglected pursuant to section 16-2317...."

. The findings of fact and conclusions of law underlying the trial court's order granting K.M.'s grandmother’s motion for permanent guardianship are significant, not as matters to be considered in deciding whether to affirm or reverse the finding of neglect being appealed, but to advise this court of the present posture of the proceedings, and to inform this court on such things as the whereabouts of the parties and K.M.’s current living arrangements.

K.M. has been living with his maternal grandmother, V J., in Albany, Georgia for two years. They live in a home on three acres of land, K.M.’s maternal uncle lives there as well. They each have their own bedroom. The uncle plays catch with K.M. and helps him with his homework. It appears that K.M.’s mother, L.M., lives in the area also, as she usually visits K.M. once a week, and sometimes twice. K.M.'s father also lives in the area, and visits K.M. at times.

V.J. testified concerning L.M.’s history of mental illness, including physical outbursts and threats to others, such as store cashiers. L.M. regularly talks about people who are plotting against her, especially the Browns and Tuckers, and how she will retaliate against them. On one occasion V.J. had to call police after an incident in which her daughter, L.M., tried to fight her. Sometimes, L.M. does not recognize her mother, V.J., but thinks she is a member of one of the families that L.M. thinks torment her.

K.M. is doing well in school and plays basketball and football. V.J. has been driving him to school each morning. V.J. testified that K.M. and L.M. love each other. However contact with his mother sometimes makes K.M. angry, for example, when L.M. talks about how computers control her thoughts. At such times, K.M. makes faces and does not want to talk with L.M., and V.J. sometimes gets K.M. to leave the room. On occasion V.J. has stopped a few of L.M.’s visits.

K.M., who is now fourteen years old, expressed in open court his consent to the guardianship. The magistrate judge considered all of the factors set out in D.C.Code § 16-2383(d), found they all support guardianship in this case, and accordingly entered the order granting V.J.'s motion for Permanent Guardianship.

. The record before us gives no indication whether authorities in Georgia, where all interested parties apparently are residing at this time, would be disposed to take action if necessary in K.M.'s best interest.