SUPERIOR COURT O F THE DISTRICT O F COLUMBIA- ,

FAMILY COURT-Domestic Relations Branch

IN THE MATTER OF Docket No. SocialFile :'- - ? ' ..~.

.. ,..,-: $ : ~

Ariel King 2009 DRB 001167

1
V. Judge: Zinora Mitchell-Rankin

Michael Pfeiffer Next Hearing: August 5,2009

DISTRICT OF COLCMBIA AND THE CHILD AND FAMILY SERVICES

AGENCY'S EMERGENCY MOTION FOR ORDER PRECLlDING MOTHER
FROM DEPOSIYG CHILD AND FAMILY SERVICES AGENCY EMPLOYEES
OR COUNSEL IN THE ABOVE CAPTION MATTER FILED UNDER SEAL

The District of Columbia, and Child and Family Services Agency (hereinafter

CFSA), by and through its attorneys, The Office of General Counsel for CFSA

(hereinafter combined as "government") moves this Court, pursuant to DC Code 2001

Ed., $5 4-1405,4-1301.04(Supp 2008), 4-1301.52(Supp. 2008), 4-1302.01 etseq (Supp.

2008), 4-1302.07(Supp. 2008), 4-1303.01a (Supp. 2008), 4-1303.06.-07(Supp. 2008), 16-

2305 (Supp. 2008), to issue an order precluding the mother (Plaintiff) from deposing

government employees in this custody matter. The reasons in support of this opposition

are:

FACTS

1. Government has received a series of e-mails from alleged counsel in this matter.

Mr. Morris asserts, contrary to the record of April 23, 2009, that mother has not

waived her rights to confidentiality in the Neglect investigations, nor provided

authority for CFSA to make ex parte contacts with the Court. Further, the mother

is seeking to depose CFSA workers and counsel in this collateral matter and if not
 responded to by today has threatened to set dates for these depositions.

(Attachments 1-5)

2. Following the April 23,2009 hearing, mother through Counsel has provided

information regarding CFSA investigations to the City Counsel, the Mayor and

the Attorney General. Information contained herein is based upon those public

communications and not confidential CFSA records. (Attachments 6-12)

3. The government reads Attachment 1 as a withdrawal of consent to waive mother's

confidentiality and therefore no assessment of mother's actions or behaviors will

be included in this pleading. (Attachment 1)

4. On April 21,2009, mother arranged for several hired professionals to call the

CFSA hotline and allege Medical Neglect and Sexual abuse of her daughter Ariel

King-Pfeiffer. The allegations contained no new factual information than in

allegations which led to investigations in both August and October of 2008.

5. In addition to investigations conducted by the District of Columbia, based upon

information and belief, investigations were conducted in Maryland in February

2008, June 2008 in Arlington, VA, and June 2008 in the Bronx New York. Based

upon information and belief, Child Advocacy Center (CAC) interviews were

conducted in February 2008 (MD), June 2008 (NY) and August 2008 (DC).

Additionally, sexual abuse examinations were conducted in February 2008 (MD),

June 2008 (NY) and April 2009 (DC).

6. The allegations have been that the father has sexually assaulted or exposed his

daughter to adult sexuality, physically abused his daughter and failed to provide

his daughter with medical treatment. During the CAC interviews the child has
 denied that she has ever been touched sexually by her father. Medical evaluations

have not revealed any signs of sexual trauma. The child has admitted to opening

the bathroom door while her father was urinating and observed him. Allegations

that the father is referred to as Mr. Piggy have been denied by the child. Mr.

Piggy is a stuffed animal who she sleeps with as she pointed out to investigators

7. The child in this matter has been diagnosed with benign neutropenia and has been

under the care of doctors at Georgetown Medical Center. Doctors have indicated

that the condition is benign and requires no special treatment or medications.

Ã

8. Mother disagrees with this course of treatment and has hired an "expert" who has

never seen or evaluated the child to offer a second opinion.

9. As the allegations were received by CFSA two days before an emergency custody

hearing, Counsel from CFSA attended the hearing to ascertain if the Court was

going to change a Custody Order issued by Arlington County in June of 2008

granting sole legal and physical custody to the father and prohibiting contact by

the mother until such time as she availed herself to examination by a court

designated psychologist.

10. At the hearing on April 23,2009, CFSA Counsel sought on the record a waiver of

confidentiality by the mother and the father so as to provide an exparfe report to

the Court regarding the investigation opened at that time.

11. During the exparte report it was revealed that no new allegations of neglect were

alleged. It was further revealed that previous allegations containing the exact

same facts had been investigated twice before and there was no evidence to

support a finding of Physical or Sexual Abuse nor was there any evidence to
 support a finding of Medical Neglect. However, in an abundance of caution, a

physical evaluation was scheduled with the Child and Adolescent Protection

Center (CAPC) at Children's National Medical Center and if the evaluation did

not reveal any signs of Sexual Abuse the investigation would be unfounded. The

child was evaluated on April 24,2009 and there was no finding of sexual abuse

and the investigation was closed. The physician did express concerns over the

trauma that these repeated investigations, evaluations and examinations were

having on the child.

DISTRICT OF COLUMBIA CODE ESTABLISHES THE CHILD AND

FAMILY SERVICES AGENCY FOR THE INVESTIGATION OF ABUSE
AND NEGLECT ALLEGATIONS

12. D.C. Code 2001 Ed., 8 4-1303.01a( Supp.2008) establishes the Child and Family

Services Agency for the purpose of receiving and responding to reports of Child

Abuse and Neglect. D.C. Code 2001 Ed., 5 16-2301(9)(A)(ii)( Supp.2008) in

relevant part defines neglect as a child who is without proper parental care or

control, subsistence, education as required by law, or other care and control

necessary for his or her physical, mental or emotional health and the deprivation

is not due to lack of financial means. D.C. Code 2001 Ed., 5 16-2301(32)
(Supp.2008) defines "sexual abuse" as engaging in, or attempting to engage in, a

sexual act or sexual contact with a child; causing or attempting a child to engage

in sexually explicit conduct; or exposing a child to sexually explicit conduct. The

statute goes on to define sexually explicit conduct to mean actual or simulated

sexual acts; sexual contact; bestiality; masturbation; or lascivious exhibition of the

genitals, anus or pubic area. In this case the allegations were received and
 investigated and there is no evidence to support a finding of either medical

neglect or sexual abuse.

13. D.C. Code 2001 Ed., 5 16-2305 ( Supp.2008) provides the executive with sole

discretion of petitioning neglect matters.

14. D.C. Code 2001 Ed., 55 4-1302.01-.03 ( Supp.2008) provide for the establishment
of the Child Protection Registry and determines what information is to be

retained, what information may be shared with parents and the method by which a

parent may receive that information from CFSA.

15. D.C. Code 2001 Ed., 5 4-1302.03 (Supp. 2008) delineates who is authorized

access to CFSA's information and the administrative process those w-ho are

authorized to receive information must go through to obtain information and

records held by CFSA.

16. D.C. Code 2001 Ed., 5 4-1302.03 (Supp. 2008) limits the release of information
specifically to the "Corporation Counsel of the District of Columbia," the United

States Attorney for the District of Columbia, Metropolitan Police and the Social

Services Agency for the Superior Court of the District of Columbia for the sole

purposes of investigating, prosecuting, or providing services in the cases of child

abuse and neglect. There is no provision in the statute for the releasing of CFSA

information to third parties in criminal matters where the respondent is a witness.

Additionally, the provisions of the statute that allow for the release of information

to third parties make it clear that this release of information is for the investigation

of alleged abuse, protection from potential abuse, or for the provision of services

to ameliorate abuse or neglect.

17. D.C. Code 2001 Ed., 5 4-1303.06 (Supp. 2008) provides that information

regarding individuals who are abused and neglected and their family members is

confidential and shall only be divulged for the provision of services or direct

treatment. The Code further requires any person or agency receiving information

pursuant to D.C. Code 2001 Ed., 3 4-1302.03 (Supp. 2005), to continue to

maintain the confidentiality of that information.

18. D.C. Code 2001 Ed., 5 4-1302.07(c) ( Supp.2008) provides that if an investigation

is unfounded the information contained in the child protection registry shall be

expunged.

19. In this matter, there were three investigations conducted by CFSA. There have

been no facts that could be substantiated that would support a finding of abuse or

neglect. The affidavit submitted by Dr. Skalaroff (Attachment 13) does not allege

that the child is not receiving medical care. This affidavit constitutes a second or

differing opinion, which is an issue that must be taken up with the medical

provider and does not constitute grounds for medical neglect.

20. Based upon CAC interviews, ongoing contact with the child, and physical

examinations, there was no credible evidence to support a finding of physical or

sexual abuse.

21. Based on the above, the investigations conducted by CFSA were unfounded. As

the investigations were unfounded, there was no valid basis for the government to

proceed on a neglect petition. Further, as the investigations were unfounded, as a

matter of law, the information is expunged from the Child Protection Registry.
 CFSA RECORDS ARE CONFIDENTIAL AND NOT SUBJECT TO
JUDICIAL SUBPOENA IN COLLATERAL MATTERS

22. CFSA's records are confidential pursuant to D.C. Code 2001 Ed., $5 4-1302.03,
4-1302.03,4-1303.06, as discussed above.

23. D.C. Code 2001 Ed., 5 4-1405 establishes what constitutes a child placing agency,

requires the maintenance of records by that agency, establishes those records as

confidential and states that they shall not be available for inspection by nor

disclosure to any person, firm, corporation, association nor subject to judicial

subpoena in collateral proceedings.

24. SCR-DRB Rule 45, provides that depositions in Domestic Relations Matters are

by subpoena. Section iii of the rule does not permit for the disclosure of protected

material where no exception or waiver applies. SCR-DRB Rule 45 (c)(3)(A)(iii).

25. In this matter the materials and testimony sought by the mother are confidential,

applies to the neglect investigation, which was unfounded, and are not a part of

the custody determination.

26. Therefore, a protective order should be issued precluding the mother from

subpoenaing CFSA employees and Counsel from providing depositions in this

matter.

27. WHEREFORE, the government requests the Court to GRANT the

government's motion and to issue an order, that precludes the mother from

deposing government employees in this matter.

Respectfully submitted,

PETER J. Nickles
Attorney General
For the District of Columbia
TONYA SAPP
Deputy Attorney General
Health and Human Services Division

,
J@ES P. TOSCANO, Bar #470037
General Counsel
Child and Family Services Agency
400 Sixth Street, S.W. 51h Floor
Washington, D.C. 20024
(202) 442-4238
 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
FAMILY COURT-Domestic Relations Branch

IN THE MATTER OF Docket No. Social File

Ariel King 2009 DRB 001167

V. Judge: Zinora Mitchell-Rankin

Michael Pfeiffer Next Hearing: August 5,2009

Points And Authorities

D.C. Code 2001 Ed., 5 4-1405

D.C. Code 2001 Ed., 5 4-1301.01a(Supp. 2008)

D.C. Code 2001 Ed., Â 4-1301.04(Supp. 2008)

D.C. Code 2001 Ed., 8 4-1301.52(Supp. 2008)

D.C. Code 2001 Ed., $8 4-1302.01-03(Supp. 2008)

D.C. Code 2001 Ed., $4-1302.07(Supp. 2008)

D.C. Code 2001 Ed., 5 4-1303.07(Supp. 2008)

D.C. Code 2001 Ed., 5 16-2301(Supp. 2008)
D.C. Code 2001 Ed., 5 16-2305(Supp. 2008)
SCR-DRB Rule 45

The inherent powers of the Court.

The record herein.

Respectfully submitted,

PETER J. Nickles
Attorney General
For the District of Columbia

TONYA SAPP
Deputy Attorney General
Health and Human Services Division

Child and Family Services Agency

400 Sixth Street, S.W. 5thFloor
Washington, D.C. 20024
(202) 727-71 51
 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
FAMILY COURT-Domestic Relations Branch

IN THE MATTER OF Docket No. Social File

Ariel King 2009 DRB 001167

V. Judge: Zinora Mitchell-Rankin

Michael Pfeiffer Next Hearing: August 5,2009

ORDER

Upon consideration of the Government's Motion, to preclude the taking of

depositions of CFSA employees and Counsel it is this __day of July, 2009:

ORDERED, that the information sought by the plaintiff (mother) is confidential.

FURTHER ORDERED, that this custody matter is not a Neglect matter.

FURTHER ORDERED that District of Columbia Code exempts this

confidential material in collateral matters and the rules of this division protect this

information from subpoena.

FURTHER ORDERED, that the mother is precluded from deposing or

discovering information from CFSA, its employees or Counsel in the above captioned

matter except for as provided in District of Columbia Code Title 4, Section 1302.03.

SO ORDERED.

Zinora Mitchell-Rankin, Associate Judge

D.C. Superior Court, Family Court

Copies to:
James Toscano
General Counsel, CFSA
400 6thStreet, SW
Washington, DC 20024

Counsel of Record
 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
FAMILY COURT-Domestic Relations Branch

IN THE MATTER OF Docket No. Social File

Ariel King 2009 DRB 001167

V. Judge: Zinora Mitchell-Rankin

Michael Pfeiffer Next Hearing: August 5,2009

Certificate of Service

I hereby certify that on this day of August, 2008, a copy of the foregoing

Motion, Points of Authorities and Proposed Order was filed under seal and hand-

delivered only to the Chambers of Judge Zinora Mitchell-Rankin

I, , 4-

BYJAMES
P. TOSCANO
Deputy General Counsel
'<
' * ' Reporting of Results or Conta
I
Page 1 of 1

Toscano, James P. (CFSA)

From: Roy Morns [RoyMorr~s@alummitedu]
Sent: Tuesday, June 02,2009 11 50 AM
To: Toscano, James P (CFSA)
Cc: Ariel King
Subject: Reporting of Results or Contact with the Court

Dear Mr. Toscano, Esq.

I am Dr. King's counsel in the King v Pfeiffer case, No. 09-DRB 1167, in DC Superior Court.

Has CFSA made any reports or had any contact with the DC Court in that case other than your
unexpected appearance on May 23,2009?

If so, please provide copies of those reports, content of any conversations, or datesltimes of any
contacts with the Court regarding Ariana-Leilani King-Pfeiffer. Also, again, please provide any
reports or information that CFSA has provided to Dr Pfeiffer andlor his counsel, Mr. O'Connell.

Please advise as to how your appearance on May 23,2009 came about? Who invited you to
testify?

Also, note that Dr. King has not waived her right to this information, nor provided authority for
CFSA to make ex parte contacts with the Court.

Thank you,

Roy Morris, Esq.

Confidentiality Notice: The information contained in this electronic mail

transmission is confidential. It may also be subject to the attorney client
privilege or be privileged work product or proprietary information. This
information is intended for the exclusive use of the addressee(s). If you
are not the intended recipient, you are hereby notified that any use,
disclosure, dissemination, distribution (other than to the addressee(s),
copying or taking of any action because of this information is strictly
prohibited.

Attachment 1
I Re' Reporting of Results or C act with the Court Page 1 of 3
à i

Toscano, James P. (CFSA)

From: Roy Morns [RoyMorns@alum mit edu]

Sent: Tuesday, June 02,2009 3 39 PM
To: Toscano, James P (CFSA)
Cc: Ariel King
Subject: Re Reporting of Results or Contact with the Court

Mr. Toscano,

Please help me understand your response:

1. Are you asserting you do not have this information? [How could you not know what led to
your appearance in Court on April 22 and 23 2009?), or
2. Are you asserting that you do not have authorization to disclose this information?

Because I am asking for information that has been disclosed already to parties outside of CFSA,
why is a request for information necessary, particularly given that the other parties who
received this information did not file a request for information?

Please advise.

Roy Morris, Esq.

Confidentiality Notice: The information contained in this electronic mail

transmission is confidential. It may also be subiect
" to the attorney client
privilege or be privileged work product or proprietary information. This
information is intended for the exclusive use of the addresseefs). If you
are not the intended recipient, you are hereby notified that any use, -
disclosure, dissemination, distribution (other than to the addressee(s),
copying or taking of any action because of this information is strictly
prohibited.

From: James Toscano <james.toscanoO,dc.eov>

Date: Tue, 02 Jun 2009 15:27:03 -0400
To: Roy Morris <ro~morris(a),alum.mit.edu~
Subject: RE: Reporting of Results or Contact with the Court

Mr. Morris:

I have no information that is responsive to your inquiry. Any request for information
from the Agency should follow D.C. Code Title 4-1 302.03 and directed to the CPR.

Attachment 2
. Re: Reporting of Results or Co
*
ct with the Court Page 2 of 3

Jim Toscano
General Counsel
Child and Family Services Agency
400 6th St, SW Room No. 5032
Washington DC 20024
(202)442-4238
(202)497-4280 (Cell); (202)727-6333 (Fax)
J.a~es.ToscanoltfidcLgov.
(CFSA) <mailto.:James.T.oscan.o.@d.i.:,g~~>

This message is intended only for the use of the individual(s) to whom it was intended to
be addressed and may contain information that is privileged, confidential and exempt
from disclosure under applicable law and or the doctrine of privilege. If you are an
unintended receiver of this document and or have received it in error, please disregard
this communication, destroy this document and any attachments and notify us of the error
in transmission.

From: Roy Morris [mailto:Rov MorrisOalum.mit.edu]

Sent: Tuesday, June 02,2009 11:50 AM
To: Toscano, James P. (CFSA)
Cc: Ariel King
Subject: Reporting of Results or Contact with the Court

Dear Mr. Toscano, Esq.

I am Dr. King's counsel in the King v Pfeiffer case, No. 09-DRB 1167, in DC Superior Court.

Has CFSA made any reports or had any contact with the DC Court in that case other than your
unexpected appearance on May 23,2009?

If so, please provide copies of those reports, content of any conversations, or datesltimes of any
contacts with the Court regarding Ariana-Leilani King-Pfeiffer. Also, again, please provide any
reports or information that CFSA has provided to Dr Pfeiffer and/or his counsel, Mr. O'ConneIl.

Please advise as to how your appearance on May 23,2009 came about? Who invited you to
testify?

Also, note that Dr. King has not waived her right to this information, nor provided authority for
CFSA to make ex parte contacts with the Court.

Thank you,

Roy Morris, Esq.

Confidentiality Notice: The information contained in this electronic mail