Case No.

09-FM-1484
(No. 09-FM-1072)

DISTRICT OF COLUMBIA
COURT OF APPEALS

ARIEL KING,
Appellant,
v. DRB1167-09

MICHAEL PFEIFFER,
Appellee.

APPEAL FROM THE

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

REPLY BRIEF FOR APPELLANT

Roy L. Morris, Esq.

DC Bar No. 379711
PO Box 100212
Arlington, Virginia 22210
202-657-5793
509-356-2789 (Fax)
Roy_Morris@Alum.MIT.edu
Counsel for the Appellant

May 3, 2010
 TABLE OF CONTENTS

SUMMARY OF ARGUMENT ...........................................................................................1  

ARGUMENT.....................................................................................................................5  

I.  Standard  of  Review............................................................................................................................................................ 5  

II.  All  Issues  Raised  On  Appeal  Were  Raised  Below ................................................................................................... 5  
a)  Objections  to  the  Improper  Calling  of  Mother's  Longest  and  Most  Knowledgeable  Counsel  Were  Raised  
Below: ............................................................................................................................................................................................................ 6  
b)  Objections  to  the  Court's  Erroneous  Refusal  to  Consider  All  Documents,  Motions,  Subpoenas,  etc.  Filed  
by  Appellant's  Counsel  Was  Raised  Below.................................................................................................................................... 6  
c) Objections to Refusal to Hear ALL of Mother's Expert Witnesses Were Raised: .......................................................... 8  

III.  Father's  Opposition  Brief  Provides  No  Defense  for  the  Court's  Refusal  to  Consider  All  Pre-­August  5  
Filings  and  Actions  Taken  by  Mother's  Counsel  Morris .........................................................................................10  

IV.  Impropriety  of  Allowing  the  Calling  of  Mother's  Long-­Term  and  Most  Knowledgeable  Counsel  as  
Witness,  Allowing  Inquiry  Into  Her  Privileged  Attorney-­Client  Communications,  and  Denying  Mother  
Access  to  That  Counsel  at  Hearing .................................................................................................................................13  

V.  Refusing  to  Receive  Expert  Witness  Testimony  Was  an  Abdication  of  the  Court's  Obligations  Under  
In  Re  M.D.  L.D.,  758  A.2d  27  (DC  2000).........................................................................................................................17  

VI.  There  Was  and  Continues  to  be  Clear  Evidence  in  the  Record  of  the  Father's  Medical  Neglect  and  
Harm  to  the  6-­Year  old  Child ...........................................................................................................................................19  

CONCLUSION ...............................................................................................................20  

SUPPLEMENTAL APPENDIX FOR REPLY

(R-APP- _)
(Separately Bound)

EXHIBIT I: List Of Documents In Appellee's Appendix

Unable to Locate In Record Below R-APP-1

EXHIBIT IIa: Updated ANC Chart Including

March 12, 2010 Blood Results R-APP-3

EXHIBIT IIb: March 12, 2010 Medical Records R-APP-4

EXHIBIT III: Excerpts of Maryland Court Docket

Case No. 111512C R-APP-11

EXHIBIT IV: April 19, 2010 Letter of Father to GUH

Prohibiting Its Contact with Mother R-APP-18

  ii
 TABLE OF AUTHORITIES
 
Cases  
Bean v. Gutierrez, 980 A.2d 1090 (D.C. 2009). .............................................................................................. 5  
District of Columbia v. Helen Dwight Reid Educ. Found., 766 A.2d 28 (D.C. 2001)........................ 6  
In Re M.D. L.D., 758 A.2d 27 (DC 2000).............................................................................................. passim  
In Re Public Defender Service, Appellant, 831 A.2d 890 (DC 2003) ................................................... 14  
McCarthy v. Arndstein, 266 U.S. 34 (1924)................................................................................................... 16  
Rice v Rice, 638 S.E.2d 702 (Va. App. 2006)................................................................................................... 4  
Venable v. Maryland 672 A.2d 123 (MD 1996)........................................................................................... 16  
Other Authorities  
MD Case No. 11512C, Criminal Court Docket .....................................................................................13,  14  
Rules  
SCR-DOM R §26(c) .......................................................................................................................................11,  12  
SCR-DOM R §101(a) and (b)............................................................................................................................. 12  
Super. Ct. Civ. R. §12-I (e)..................................................................................................................................... 8  
 

  iii
 SUMMARY  OF  ARGUMENT  
 
Appellant Dr. King (Mother) sought equitable relief to require an independent diagnosis

and treatment of the underlying cause of a very rare severe chronic neutropenia condition (low

immunity) of her now six-year old child -- which came about only after the child was placed in

the custody of Appellee Pfeiffer (Father). This life-threatening low immunity condition is simi-

lar to that of persons with HIV/AIDS, making them susceptible to a fatal response to an everyday

infection. It has continued -- unabated and unexplained -- for two years -- while tests for deter-

mining its cause are unexplainably not being done. Father does not dispute that the child has

this potentially deadly condition and that all possible tests have not been done to determine its

cause, including testing for “toxin or drug-induced neutropenia.” Nor does Father dispute the

concerned findings of Dr. Welte, who is a world leading expert on the subject. (See Dr. Welte

Opinion Letter, August 31, 2009, found at APP-140 and 141).

The Father agrees that the court in a neglect proceeding acts as "parens patriae." Thus,

the court has the "paramount" obligation and "broad authority" "to know as much as possible

about the entire situation." "[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"...... "the court was empow-

ered by statute to order, on its own motion, physical and laboratory examination and to utilize

the results of that examination in the fact finding hearing" -- even where the child has already

been taken to a physician by the suspect neglectful parent. In Re M.D. L.D., 758 A.2d 27, 33-34

(DC 2000) (citations omitted)

Using information from outside the record, false allegations, and misapplied case law,

Father's Opposition Brief argues that the court somehow fulfilled its role without any expert be-

ing qualified to testify as an expert and without any independent medical evaluation. Father's

  1
Opposition Brief fails to provide valid justification for the following erroneous actions by the

court:

1) refusing to consider all filings, motions, evidence etc. filed by Counsel for the Mother
well after that counsel entered his appearance,

2) refusing to allow any qualified experts to testify, thus denying the court itself access to
important information about relevant medical and psychological conditions, abuse and
neglect, as well as forgery in documents presented,

3) denying the Mother her right to her long-term and most knowledgeable counsel in vio-
lation of her Fifth and Fourteenth Amendment rights and forcing her to testify about ir-
relevant privileged attorney-client communications while a criminal proceeding remained
pending in Maryland, and

4) allowing Father's Counsel have the Mother's Criminal Counsel sequestered based on
false pretenses -- without any foundation in the evidence for his false proffer -- for the
sole purpose of denying the Mother access to her full time civil and criminal Counsel
Morris. Then, while the Mother's Counsel was sequestered on such false pretenses, al-
lowing ex parte communications between James P. Toscano, Esq. of DC Child Protection
Agency (CFSA, which was not a party) and the court at the request of the Father's Coun-
sel without a subpoena or court order.

Father's Opposition Brief overtly relies on information outside the record. A simple

document and page count of the Father's 248 page Appendix shows that almost 80 percent of its

documents, and 55 percent of its pages, cannot be found in the court record below. Those docu-

ments that are not in the record are listed in Exhibit I (found at Supplemental Appendix for Reply

at 1, "R-APP-1"))

Also, it is shown that the Father's Opposition Brief is incorrect, and that all issues on ap-

peal were preserved below.

It was clearly erroneous for the Court below to abdicate its role “parens patriae” in the

medical neglect case below. Despite ample time provided by the lower court's months of sched-

uling delays, the court failed to order an independent medical evaluation -- per In Re M.D. L.D.,

758 A.2d 27, 34 (DC 2000) -- to determine the cause of the child's two-year old very rare blood

  2
disorder of severe chronic neutropenia. The latest records from a March 2010 appointment with

GUH physician Dr. Scott Myers indicate that the child's neutropenia continues to be severe

(ANC below 500), and life threatening. (See Exhibit IIa and IIb, at R-APP-3, -4) In addition,

Dr. Myers charted a noticeable bruise on her abdomen that the Father dismissed as a “school

playground accident.” (See R-APP-4) Dr Myers also expressed serious concern about the child's

persistent cough (which has persisted for over two years) and told Father to take her to see a

pulmonologist (See R-APP-6). However, to date the medical records reveal no appointment for a

pulmonologist at GUH. Nor has the Father indicated that he has taken the child to a pulmonolo-

gist, when asked. Thus, apparently believing that the Court is no longer looking, the Father ap-

pears to be overtly ignoring directives for proper medical diagnosis and care of this child with

multiyear life-threatening severe chronic neutropenia.

For two years, the Father has refused -- even if through a stipulated modified custody or-

der -- to allow the child the most limited contact with her primary caregiver, her Mother (includ-

ing a giving her child birthday cards from her Mother, or even allowing a monitored telephone

conversation). The Father has also instructed Georgetown University Hospital, its physicians,

her school, and others, to refuse all communication with the Mother or even with other physi-

cians on her behalf. As a result, the results of the latest tests submitted by GUH to a Wisconsin

lab for anti-immune testing have been illegally withheld from the Mother by the Father and

GUH. (See, "anti-PMN antibody," "Blood Center of Wisconsin", R-APP-6.)

Unfortunately, evidence of continuing medical harm and abuse are clearly present and

thus this case is clearly not moot.

Finally, clarification is needed for another misrepresentation in the Father's Opposition

Brief. The case below was the only US medical neglect complaint case brought by the Mother

  3
against the Father that was not dismissed for being defective on procedural or jurisdictional

grounds. Most of the cases that are cited by the Opposition Brief were custody/visitation or di-

vorce cases brought by either the Father or the Mother. None of those cases, including the Vir-

ginia case (which lacked subject matter jurisdiction because no party was living there), have re-

solved the custody or divorce on their substantive merits.1 Currently, the only divorce and cus-

tody case seeking to address the substantive merits of those matters for the first time is active in

Bayreuth, Germany, as both the child and Father are German, and Mother lives in Germany.

Both parties are legally represented and are active in the family court in Bayreuth Germany. Fi-

nally, none of the cases cited by Father's Opposition Brief addressed the substantive merits of

the medical neglect and abuse issues.

                                                                                                               
1
No direct appeal was ever taken of the June 6, 2008 Virginia Custody Orders that are referred
to by the Father. They were adopted in a 20 minute ex parte hearing without witnesses, while
the Mother was taking her child to Montefiore Children’s Hospital in NY for medical evaluation
after obtaining a Temporary Protection Order (TPO) for herself and for the child's sexual and
physical abuse, and medical neglect by the Father. The TPO was issued by the only Judge who
has ever met the child and the Mother. That TPO was vacated by a different judge in a prema-
ture unscheduled ex parte hearing prompted by the Father's Counsel on June 5, 2008. The Fa-
ther then prompted Maryland to have the Mother arrested at the child's beside in Montefiore
Hospital in NYC and then held in Rikkers jail in New York long enough for the appeal period for
the original June 6, 2008 custody orders to expire. See, Brief at 5-7. The appeals that Father
refers to -- that went to the US Supreme Court -- involved an appeal of a subsequent modifica-
tion of the June 6, 2008 orders that took place on September 26, 2008. That line of appeal was
dismissed on procedural grounds (failing to use certified mail, rather than priority mail for serv-
ice), and not substantive grounds. Father does not and cannot defend or explain the multiple
June 6, 2008 Orders as complying with VA Code § 20-124.3 that require the court to consider
each of the statutorily mandated factors, -- which it obviously could not have done and did not do
in a twenty minute ex parte hearing on June 6, 2008. See, e.g., Rice v Rice, 638 S.E.2d 702, 707
(Va. App. 2006). The court below did not hold a hearing on the merits or lawfulness on either
the two June 6, 2008 Virginia conflicting orders, but arbitrarily and capriciously included dicta
for which there is no basis in the record. Father did not inform the court the second conflicting
order -- which automatically prevents it recognition by another jurisdiction. That second order is
among the many documents that Father presented in his appendix that are not found in the re-
cord. See, Item 16, Exhibit I, found at R-APP-1.

  4
 ARGUMENT  
I.  Standard  of  Review  
Both parties agree that the standard that must adhered to in medical neglect cases is de-

fined by this Court's guidance in In Re M.D. L.D., 758 A.2d 27 (DC 2000).

The court in a neglect proceeding acts as parens patriae. In that role the court has the
"paramount" obligation and "broad authority" to protect the best interests of the child
where the parent is unwilling or unable to do so. Id. This obligation "begins well in ad-
vance of any adjudication of neglect. . . ." []
....
To protect the best interests of the child before it, the court has a duty "to know as much
as possible about the entire situation." []
...
the trial court in a neglect proceeding ought not to be passive in the face of what it recog-
nizes 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 de-
cision..... the court was empowered by statute to order, on its own motion, a physical ex-
amination of M.D. and to utilize the results of that examination in the fact-finding hear-
ing. See D.C. Code §16-2315.

- In Re M.D. L.D. at 33-34 at ¶¶ 35-37 (citations omitted)

In In Re M.D. L.D., as here, even where the parent takes the child to a physician, the

Court of Appeals still needs to remand the case for an independent medical evaluation -- which

the lower courts had failed to request and inquire about.  

II.  All  Issues  Raised  On  Appeal  Were  Raised  Below  

Contrary to Father's Opposition Brief at 13, all issues raised here were raised below and

preserved for appeal. Bean v. Gutierrez, 980 A.2d 1090, 1094 at ¶24, and note 4 (D.C. 2009).

However, even if the Court determines that one or more of the points was not adequately raised,

as suggested by the Father's Opposition Brief, this court has found that an appellate court has

discretion, in the interests of justice, to consider an argument that is raised for the first time on

appeal if the issue is purely one of law, particularly if the factual record is complete and a re-

mand for further factual development would serve no purpose, the issue has been fully briefed,

  5
and no party will be unfairly prejudiced. District of Columbia v. Helen Dwight Reid Educ.

Found., 766 A.2d 28, 33-34 at n.3 (D.C. 2001).2

a)  Objections  to  the  Improper  Calling  of  Mother's  Longest  and  Most  Knowl-­‐
edgeable  Counsel  Were  Raised  Below:      
Counsel Morris immediately objected to being called as a witness, and the Court dis-

missed those objections [The Court said: "And, I don't think that there's anything that he (Coun-

sel Morris) could that would implicate a privilege. It's either you filed something or you didn't.

All right." - April 23, 2009 Transcript at 19-22, found at APP-48-50]. With Mother's Counsel

Morris excluded from the courtroom on false pretenses and, in turn, preventing him from voicing

effective objection on behalf of Mother, James P. Toscano, Esq., (General Counsel for DC Child

Protection Service, CFSA) appeared at the Father's behest to have an ex parte meeting with the

Judge. It was not until Mother's Counsel Morris read the transcript did he became aware of the

extent of the impropriety that occurred in his forced absence from the courtroom.

b)  Objections  to  the  Court's  Erroneous  Refusal  to  Consider  All  Documents,  Mo-­‐
tions,  Subpoenas,  etc.  Filed  by  Appellant's  Counsel  Was  Raised  Below    
 
Mother's Counsel Morris timely objected to the Court's refusal to recognize him as active

counsel for the Mother and the Court's refusal to consider the many motions, oppositions, sub-

poenas duces tecum, and exhibits, etc. filed prior to August 5, 2009:

MR. MORRIS: At the end of the hearing on the 23rd, Mr. O'Connell specifically asked
you whether he could do depositions of our witnesses and he, you said I will not stand in
your way, so you allowed and opened the door for discovery between the time of that
hearing and this hearing. The, and so the depositions [Appellant issued subpoenas for]
were simply a mirror image of what Mr. O'Connell had asked of you and said you would
not stand in the way and you said that was fine. So the depositions, the green light was
given to the depositions but apparently he forgot that. As to whether or not a notice of
discovery was put in the record, yes, there was a one specifically filed --
                                                                                                               
2
In addition, the Court received additional notice of the issues for appeal in In Petition for Writ
of Mandamus, in Re: Ariel King, filed August 26, 2009.

  6
 THE COURT: Sir, what --
MR. MORRIS: -- and he was provided --
THE COURT: -- first of all, as far as I'm concerned, the only time you've been author-
ized to operate is right now. Is right now. Because you have not been primary counsel un-
til I just relieved the other counsel, so I'm not really clear what you're talking about. I
mean, when you've injected yourself in these proceedings to the point where you control
discovery because that's not what's been happening, sir. I mean, there's been a primary
counsel and you have not been it.
MR. MORRIS: Okay. May I respond, please? The primary counsel [the court refers to]
specifically directed that I take over the case weeks ago.
THE COURT: Sir, I'm talking about this Court, okay? First of all, I'm the only one who
can relieve counsel. I'm the only one.
DR. KING: Yes, Your Honor.
THE COURT: And I just did today and so as far as I'm concerned, they were primary
counsel --
DR. KING: Yes, Your Honor.
THE COURT: -- until just now and that there has been no other counsel who has been
authorized to conduct anything in this case except for Mr. Robinson and Mr. Long.
DR. KING: Yes, Your Honor.
THE COURT: Not you. I mean, now, you are counsel and you certainly do know the
rules and so you are not in a position, as far as I'm concerned, to talk about what has not
been done when, as far as I'm concerned, you've not had any authority to do anything un-
til right this minute when I accept your praecipe,
DR. KING: Thank you, Your Honor.
THE COURT: Now, whatever happens in this case, I fully expect that the rules are com-
plied with.
DR. KING: Yes, Your Honor, we will.
THE COURT: And I'm not operating in accordance with any individual's rules. I have to
follow the rules of this Court and so I don't know what arrangements you think you may
have made. I just know that until I grant a motion to withdraw, that the only primary
counsel that I will recognize is that counsel of record, which is not you.
DR. KING: Thank you, Your Honor.
MR. MORRIS: Let me just state for the record one more thing, Your Honor. I've been
listed on the docket as counsel for this case for quite a long time.
THE COURT: You know, sir, I'm not going to argue with you.
MR. MORRIS: Okay. I just want to make sure that is clear.
THE COURT: Yes, I want - -
MR. MORRIS: As to whether there was any misunderstanding --
THE COURT: -- you to be clear. You have not been primary counsel throughout these
proceedings.
DR. KING: Thank you, Your Honor.

-- August 5, 2009 Transcript, at pp 10-13, APP-109-112 (emphasis added)

  7
 Thus, the issue of whether actions taken by Mother's Counsel Morris would be consid-

ered based on a Court claim he was not "lead counsel" was raised below.3

c) Objections to Refusal to Hear ALL of Mother's Expert Witnesses Were

Raised:
Dr. Robert Sklaroff, MD is a published hematologist/oncologist and expert witness with

38 years of relevant experience, and who has never been disqualified as an expert and has testi-

fied as an expert over 30 times. [See, e.g., Sklaroff Affidavit, attached to Complaint, found at

APP-20, and also August 5, 2009 Transcript at 28-29] The Court's refusal to allow his testimony

as an expert in hematology/oncology and internal medicine was raised on August 5, 2009 and

denied:

MR. MORRIS: Well, Your Honor, I think I've questioned Dr. Sklaroff, I submit him as
an expert and I --
THE COURT: In what?
MR. MORRIS: In hematology, oncology, and internal medicine.
...
THE COURT: Well, I mean, I've already said as plainly as I possibly can, Doctor, that
this is a child. You've said that there is no diagnostic difference between an adult and a
child with regard to the diagnosis of neutropenia. I don't know that. I don't know what
the basis for that is. I don't know how many children you have worked with and what age
groups, how many children you have diagnosed in order to talk to me about such a con-
clusory statement that diagnostically there is no difference.
THE WITNESS: I have literature to show --
THE COURT: Well, but I'm not reading your literature at this juncture. I mean, I haven't
read your literature at this juncture and, frankly, nobody said anything about, other than
you, that you have this literature and even if you have literature, the question still is what
have you done in that area? You know, you told me about Sloan and I don't know what
you did at Sloan. You told me about camp counselor but I'm not clear what in the world it
has to do with neutropenia. I don't know how many children you've worked with over
what period of time, what your initial training was in that regard. With regard to these
very specific, I mean these are specific areas, not general areas, and so if I'm going to
qualify you in that regard, there has to be a basis. At this juncture, there is none and so
the Court would deny your request if that's all you got and I gave you a chance to qualify
him. So, Doctor, with all due respect to you, I think that your participation in these pro-
ceedings is done and I'm ready to move on to the next witness.
                                                                                                               
3
All of the documents that the Court' refused to consider remain "a part of the record." Super.
Ct. Civ. R. 12-I (e).

  8
 MR. MORRIS: Thank you, Your Honor.

-- August 5, 2009 Transcript at 40-41, found at APP-123-124 (emphasis added)

For Dr. Joy Silberg of Shepherd Pratt Hospital (an expert in child trauma and dissocia-

tion, abuse and neglect in children) the Mother had requested through motion that she be allowed

to testify at the August 5, 2009 hearing if the Court was going to consider the CFSA Investiga-

tion. See, Mother's Motion to Strike and In Limine and Expedite Emergency Hearing and Re-

quest to Call Dr. Joy Silberg As An Expert Witness, filed June 10, 2009, at APP-80. The CFSA

investigation was initiated by Dr. Silberg's and Dr. Sklaroff's written and oral complaints to the

CFSA hotline on or about April 21, 2009. Dr. Silberg was present at the August 5, 2009 hearing,

and then sequestered by the Court, but never allowed to be called:.

THE COURT: Are there other witnesses in this courtroom?

MR. MORRIS: Yes, there are, Your Honor.
THE COURT: All right. They need to leave the courtroom until such time --
MR. MORRIS: But they are both experts, your Honor.
THE COURT: Well, without, sir?
MR. MORRIS: I'm sorry.
THE COURT: I have not the foggiest idea who they are and nobody is in this courtroom
unless I give them permission to be. Now, counsel, if you're going to practice here, then I
expect you to follow the rules and so if you want to tell me who they are, tell me the na-
ture of their expertise, they get a chance to say something about that.
MR. MORRIS: Okay. One expert is Mr. Don Lehew (phonetic sp.) . He's a handwriting
analyst expert. He's here to testify about fraudulent documents that were presented at the
last hearing, and also the other witness is Dr. Joyce Silberg (phonetic sp.), who's here to
testify about the fact that she had been the one who made the report to CPS and not Dr.
King, and she also is the one who has analyzed the abuse and neglect situation. She's a
psychologist, PhD psychologist from Pratt, Shepherd Pratt up in Baltimore. She's a na-
tionwide leading expert on the subject.
THE COURT: Based on what you say, those are fact specific and so they do not need to
remain in the courtroom, and so they won't remain in the courtroom. They'll be called
when it's their time to testify. I'm not really clear about a handwriting analyst, but I'll see
what you do and what you seek to offer and we'll make a determination at that time. So,
persons who are not scheduled to go on the witness stand right now and are designated as
witnesses will leave the courtroom until such time as their testimony is required.
.....
MR. O'CONNELL: What I'd like to do, Your Honor, is make the motion but renew it af-
ter Dr. Meyers, who I'm confident will testify that the documents that are allegedly

  9
 fraudulent are, in fact, documents that he actually wrote and he signed. And if Your
Honor feels that at that point that Your Honor wants to hear from a handwriting --
THE COURT: Then, I'm with you.
MR. O'CONNELL: -- expert.
THE COURT: Then I will hear the analysis.

- August 5, 2009 Transcript at 19-22, found at APP-118-120

Don Lehew was presented as an impeachment witness. He is a handwriting expert who

was prepared to testify to the court about forged writing that appeared only on the medical re-

cords produced by the Father. August 5, 2009 Transcript at 19-22, located at 118-120. Don Le-

hew appeared at the August 5, 2009 hearing. The Court then sequestered him as preparation for

his testimony. Then, the Court refused to allow him to testify.

III.  Father's  Opposition  Brief  Provides  No  Defense  for  the  Court's  Refusal  to  Con-­‐
sider  All  Pre-­‐August  5  Filings  and  Actions  Taken  by  Mother's  Counsel  Morris  
Even though Mother's Counsel Morris submitted and had docketed praecipes entering his

appearance on both April 22, 2009 and May 22, 2009 (See, Docket at entries 52 and 63, found at

APP-5 and APP-6), the lower court refused to consider the merits of all pre-August 5, 2009 fil-

ings, evidence, and subpoenas signed by Mother's Counsel Morris. The rest of the members of

Mother's legal team, Long and Robinson, filed a joint Motion to Withdraw and a Motion for Ex-

tension of Time on May 27, 2009, and both had long stopped working on the case. The Motion

stated that “the services of Counsel (Robinson and Long) are no longer needed..” and that Coun-

sel Morris would remain and handle the case alone from that point onward. (See, Motion to

Withdraw and Motion for Extension of Time, located at APP-69 and 72.)

Father's Opposition Brief, in effect, takes the irrational position that the Mother should

have been left with no active counsel from May 27, 2009 through August 5, 2009, because of

delays in the Court granting the Long/Robinson Motion to Withdraw and Motion for Extension of

Time. Neither Father's Opposition Brief nor the court attempt to explain how Mother was sup-

  10
posed to prepare for the August 5, 2009 hearing, including doing the needed discovery and filing

the needed motions, oppositions, etc. during that intervening period. The Father's support for

the Court's position is an absurd interpretation of the Court's rules that is not supported by the

language of the rules or any case law.

In total, the Court ignored twelve discovery and evidentiary-related filings made by the

Mother during the period May 27, 2009 through August 5, 2009, including four subpoena for

deposition duces tecum. The ignored documents (including their extensive evidentiary attach-

ments) included:

1) Counsel Morris Praecipes: Entry of Appearance, filed April 22, 2009 and, again, on May
22, 2009, APP-67.
2) Mother's Opposition To Father's Motion For Leave To File Late Counterclaim, filed
June 1, 2009,
3) Mother's Motion to Strike and In Limine and Expedite Emergency Hearing and Request
to Call Dr. Joy Silberg As An Expert Witness, filed June 10, 2009, at APP-80. With ex-
tensive documentation from CFSA and the Children’s National Medical Center (CNMC),
this Motion sought to strike all references in the CFSA investigation and bar its consid-
eration because it was clearly irrelevant to issue of medical neglect, failed to comply with
CFSA policies, and only involved a deeply flawed, investigation of sexual abuse --- not
medical neglect.
4) Mother's Subpoenas Duces Tecum directed at Defendant and the four Georgetown Uni-
versity Physicians who treated the child, including Dr. Myers, served on June 16 and 17,
2009.
5) Mother’s Notice of Discovery filed July 2, 2009, APP-97.
6) Mother's Opposition to Defendant's Motion to Quash Subpoena of Defendant, filed July
2, 2009,
7) Mother's Opposition to Defendant's Motion to Quash Subpoena of Defendant, filed July
14, 2009. Pointing out that the Court specifically gave the prior approval for deposition
at the April 23, 2009 hearing. The Court's failure to rule on the Defendant’s Motions to
Quash4 automatically stayed the discovery -- preventing it from taking place prior to the
August 5, 2009 hearing.
8) Mother's Opposition to CFSA's Motion to Emergency Motion, filed on July 17, 2009.
With supporting documentation, opposed the July 2, 2009 Child and Family Services
Agency (CFSA) Motion which opposed the Mother’s intent to depose and request docu-
ment discovery from CFSA. Demonstrated that the CFSA Motion made many false fac-
tual allegations against the Mother. CFSA intentionally did not serve the Mother’s coun-

                                                                                                               
4
A Motion to Quash automatically stays discovery under the Family Court’s rules. SCR
Dom.Rel. §26(c).

  11
 sel a copy of its Motion. Mother’s Counsel Morris learned about the illicit filing by
chance during a routine check with the court clerk. The Court did not rule on CFSA’s
Motion and Plaintiff's Opposition thereto prior to the August 5, 2009 hearing, effectively
granting it and denying the Mother discovery. Super. Ct. Dom.Rel. R §26(c).
9) Mother's Subpoena for Deposition Duce Tecum of CFSA Designated Expert, served on
July 2, 2009,
10) Mother's Opposition to the CFSA Second Motion to Quash Subpoena Duces Tecum, filed
on July 23, 2009, By not ruling on CFSA’s Motions to Quash prior to the August 5, 2009
hearing, the Court effectively granted CFSA’s Motion and denying the Mother her right
to discovery. Super. Ct. Dom.Rel. R §26(c). Also, see, August 5, 2009 Hearing Transcript
at 13-16, (where Court summarily granted the CFSA Motion to Quash, APP-112-114))
11) Mother's Motion to Compel Defendants Responses to Discovery (due July 31, 2009),
filed August 4, 2009. The Court did not rule on the Mother’s Motion to Compel prior to
August 5, 2009, effectively denying the Mother discovery. Super. Ct. Dom.Rel. R §26(c).
12) Mother's Letter to the Court Reminding Her of the Need for Timely Action on the many
Pending Motions, Oppositions, Subpoenas, etc., filed July 24, 2009, at APP-97. The
Mother’s Counsel reminded the Court of the need for a timely ruling on the above listed
outstanding discovery and evidentiary matters prior to the August 5, 2009 hearing.

The extensive scope and scale of this list demonstrates the absurdity of the trial court's

"lead counsel" rationale for ignoring the merits of those filings -- simply because they were

signed by the only active counsel in the case. Super. Ct. Dom.Rel. R §101(a) and (b).

The Father's Opposition Brief cites no rule or case law that allows a Court to deny a liti-

gant their one active legal counsel, where all the remaining counsel have long since withdrawn

and become inactive.

In sum, the Court clearly erred when it refused to rule on the merits of these filings, sub-

poenas, and ignored the compelling evidentiary evidence they presented, thus prejudicing the

Mother and abdicating its "paramount" obligation and "broad authority" to protect the best inter-

ests of the child. In Re M.D. L.D., 758 A.2d 27, 33-34 (DC 2000).

  12
IV.  Impropriety  of  Allowing  the  Calling  of  Mother's  Long-­‐Term  and  Most  Knowl-­‐
edgeable  Counsel  as  Witness,  Allowing  Inquiry  Into  Her  Privileged  Attorney-­‐
Client  Communications,  and  Denying  Mother  Access  to  That  Counsel  at  Hearing  
Father's Opposition Brief's argument in favor of allowing the calling of the Mother's

long-term Counsel as a witness to seek information on privileged attorney-client communica-

tions, is flawed. Its argument is based on misrepresentation of the facts and the law.

First, the Father's Opposition Brief misrepresents the status of the criminal case in Mary-

land concerning the Mother. The Father's Counsel should have fully informed this Court and

the Court below that the Maryland case remains "reopened" for reconsideration. It is a matter of

public record (http://casesearch.courts.state.md.us/). [See, Exhibit III: Excerpts of the Docket in the

Maryland Case No. 111512C, found at R-APP-11.]. Mother had been erroneously charged with

interstate parental abduction of less than thirty days, for taking her child to Montefiore Chil-

dren’s Hospital in New York, for evaluation and treatment after a TPO had been issued by a

Maryland Court against the Father for abuse and neglect by a Maryland Circuit Judge. The

Mother was forced to take a plea deal when, at the 11th hour before the April 7, 2009 trial, the

Court denied the Mother her statutory and common law defenses (including that there was in ef-

fect a TPO, and she was getting medical and psychological help for child), and her right to use of

any of her experts. [See, Exhibit III: Excerpts of the Docket in the Maryland Case No.

111512C, at entries 111 and 113, found at R-APP-16.] The plea did not require any time for

probation or prison. Immediately upon entering the plea, a motion for reconsideration of the

sentence reopened the case. Under Maryland law, the Mother has the opportunity -- when she

chooses -- to have the case vacated and erased from her record. In the interim, the reconsidera-

tion of the Maryland matter remains pending.

The Father's Opposition Brief next falsely alleges that communications occurred between

the Mother and her Counsel Morris during the two weeks she sought medical and psychological

  13
care for her daughter. This false allegation is made without any evidence to support it. Fa-

ther's Counsel failed to point out to this court and the court below that the same unsubstantiated

claim was, in effect, found to be without merit by the Maryland Court in a hearing on March 13,

2009, where the State used a similar false claim as a basis for a failed attempt to removing

Mother's Counsel Morris from her defense team. In open court, Counsel Morris explained to

that the claim could not be true, is baseless, and that there was no evidence in any of the discov-

ery produced by the State that supports such a claim. The Maryland Court denied the State's

Motion, (See, Exhibit III: Excerpts of the Docket in the Maryland Case No. 111512C, Docket

Entry 67, found at R-APP-13) and Counsel Morris remains Mother's Defense counsel.

The Father's Opposition Brief then goes on to argue that those alleged communications

are not protected by the attorney-client privilege. Father falsely proffers that they were made to

further or aid an alleged crime. As a matter of law this too fails. As this court has recognized,

mere allegations are not enough to have attorney-client communications privilege violated. In Re

Public Defender Service, 831 A.2d 890 (DC 2003). In Public Defender, this Court found little

judicial discretion, as it involves mostly a question of law, and little fact. Id. at 898, at ¶ 25.

This court's analysis "must focus not on the [] judge's findings of fact or exercise of discretion,

but on the correctness of the judge's legal conclusions - his statement of the applicable law and

his determination that the government's proffer met the law's requirements." Id. at 898. To

support a claim for the "crime-fraud exception" to the attorney-client privilege, the party attempt-

ing to claim that exception -- here the Father -- has the burden of proof. The showing must be

"more than an unsworn narrative proffer by its attorney; an evidentiary submission, such as a

sworn affidavit by a competent affiant, should be the norm." Id. at 902. "It does not suffice that

  14
the communications may be related to a crime," [], nor is it enough to show "temporal proximity

between the communication and a crime." [] Id. at 906. (citations omitted)

In the instant case, there was no competent affiant, but only an "unsworn narrative prof-

fer" by Father's Counsel. Father did not carry his burden under the "crime-fraud exception."

Strangely, the transcript reveals that the court based its erroneous reasoning on whether

there was anything privileged about whether Mother's Counsel Morris filed a paper with the

Maryland Court -- not his communications with the Mother:

Q. Were you aware that there was a motion set for a hearing before Judge Craven on June
5, 2008?
A. No.
Q. Did you file an opposition to that motion on that day Pro se, delivered by Roy Morris?
A. Opposition on that day --
MR. O'CONNELL: Your Honor, I'd like to invoke the witness rule at this time. Mr. Mor-
ris is the one that delivered that.
THE COURT: All right. All persons who are theoretically witnesses in this matter for ei-
ther side should leave the courtroom until such time as their testimony is required.
MR. LONG: Your Honor, has Counsel indicated that he's going to call Mr. Morris as a
witness?
THE COURT: That's what I took him to say?
MR. LONG: Counsel, you want to call Morris as a witness?
MR. O'CONNELL: I want -- Yes, regarding this matter at least.
THE COURT: Okay.
UNIDENTIFIED SPEAKER (Counsel Morris): I would like to assert -
UNIDENTIFIED SPEAKER (Not Counsel Morris): No, no, just step outside.
THE COURT: And, I don't think that there's anything that he could that would im-
plicate a privilege. It's either you filed something or you didn't. All right.
.....
Q ( O’Connell). So even though Mr. Morris told you that that hearing was going on, you
didn't go to that hearing, correct?
A. (King) Not correct.
Q. You did go to the hearing?
A. I believe you said to me, "Even though Mr. Morris told you, you didn't go; is that cor-
rect?" And, I said that statement is not correct.
Q. You didn't communicate with Mr. Morris about the hearing that day; is that correct?
A. No, that's not correct.
Q. Mr. Morris told you that a hearing was going on; is that correct?
A. No.
- Transcript April 23, 2009 at 19-22, found at APP-48-50 (emphasis added)

  15
 As can be seen Father's Counsel, without presenting even a proffer, showed not hesita-

tion nor was restrained from questioning the Mother about alleged conversations between the

Mother and her Defense Counsel Morris.

Obviously, the Court's reasoning regarding an allegation of the Mother's Counsel filing of

a pleading on the Mother's behalf on June 5, 2009 could not be a basis for the "crime-fraud ex-

ception" and certainly does not open the door to questioning of attorney-client privilege, and de-

nial of Mother her Fifth and Fourteenth Amendment right to access to her Defense attorney when

being questioned on matters relating to the Maryland case. Furthermore, whether Mother's

Counsel (or someone else) filed something in a Maryland court before the unscheduled hearing

of June 5, 2009 should not have even been allowed to be raised before the court below because it

was irrelevant to the issue before the court, i.e., subsequent medical neglect by the Father. Such

an irrelevant proffer certainly can't justify calling a party's counsel as a witness and sequester-

ing him for the entire day duration of April 23, 2009 hearing.5

The Father's Opposition Brief ignores that protections of the fifth and fourteenth amend-

ments extend to civil proceedings where, as here, criminal matters are raised. (Father's Opposi-

tion Brief at 15). The Supreme Court held in McCarthy v. Arndstein, 266 U.S. 34, 40 (1924),

"the [Fifth Amendment] privilege is not ordinarily dependent upon the nature of the
proceeding in which the testimony is sought or is to be used. It applies alike to civil and
criminal proceedings, wherever the answer might tend to subject to criminal responsibil-
ity him who gives it. The privilege protects a mere witness as fully as it does one who is
also a party defendant."

                                                                                                               
5
Father's Counsel insistence on this faux and then abandoned line of questioning almost imme-
diately after the sequester clearly indicates the Father's Counsel's only real interest was in hav-
ing the Mother's Counsel sequestered -- and, in fact, he never had any interest in calling Mother's
Counsel as a witness. If the Father's Counsel had been sincere in the need to establish calls
were made, less intrusive "alternative methods of presenting evidence" would have been used
(e.g., calling as witness the law enforcement officer that Father's Counsel alleges suggested to
him that such calls existed). See, e.g., Venable v. Maryland 672 A.2d 123, 129 (1996)

  16
See, full discussion in Mother's Brief at 24-29.

In sum, through the unethical conduct of Father’s Counsel, the Mother was forced to tes-

tify about attorney-client communications while the Mother's Defense Counsel was excluded

from the courtroom based on a bogus claim that failed to meet any of the requirements of the

"crime-fraud exception" to such attorney-client communications. These false claims and unjusti-

fied removal of the Mother's Defense counsel no doubt were intended to poison the Court's as-

sessment of Mother's credibility, its attitude towards Mother's Counsel's active participation in

the case below, and, in turn, impeding the Mother's ability to do discovery and present evidence

at the hearing on August 5, 2009.

The false pretense of calling Mother's Counsel Morris as a witness and having him ex-

cluded also interfered with the Mother ability to launch an effective objection to the improper ex

parte communications of James P. Toscano. Esq. on the Father's behalf. See, Mother's Brief at

26-27. It also interfered with the Mother's legal team's ability to effectively cross examine the

Father when he was on the witness stand on April 23, 2009, because only Mother's Counsel

Morris had the extensive detailed knowledge and experience in all the prior cases -- as compared

to Robinson/Long who were newly hired to help Mother's primary Counsel Morris just days be-

fore the April 22, 2009 hearing.  

V.  Refusing  to  Receive  Expert  Witness  Testimony  Was  an  Abdication  of  the  
Court's  Obligations  Under  In  Re  M.D.  L.D.,  758  A.2d  27  (DC  2000).  
As noted above, Mother offered Dr. Robert Sklaroff, MD as an expert witness for hema-

tology/oncology. See, Transcript at 40-41, found at APP-123-124. The Court's December 2,

2009 Order, specifically conceded his expertise as such. See, December 2 Order at 7 (APP-39).

["Although Dr. Sklaroff is qualified in the field of hematology and oncology...."]

  17
 Oddly Dr. Robert Sklaroff, MD was disqualified because the court erroneously claims

that he was being presented as an expert in "pediatric hematology/oncology," and NOT for the

reason the transcript actually reflects that the Mother offered him, i.e., an expert in hematol-

ogy/oncology. The Court should have allowed Dr. Sklaroff to testify on those matters that were

clearly within his recognized expertise (e.g., "what is neutropenia," “What is the scale of mild,

moderate and severe neutropenia” "what are the tests to determine the possible causes of neutro-

penia," what are the possible causes of neutropenia, what are the dangers of neutropenia). As a

result of disqualifying the only hematology/oncology expert witness, the Court chose to deny it-

self access to this basic general information about the chronic illness that the child is, and re-

mains, suffering from. The Court Order's information on the child's medical condition is not

supported by any expert testimony, nor is any citation given as to its source. It could not possi-

bly be from the record below. Dr. Myers did not testify except as an adverse fact witness for the

Mother, rather than as an expert. Neither the court nor the Father attempted to qualify Dr. Myers

as an expert, nor did the Father's attorney attempt to question him on the stand.

Dr. Joy Silberg, reviewed and assessed volumes of information about the child including

videos, medical records, sexual abuse assessment records from several hospitals and assessment

centers, child protection services records, TPO court records, and other data and documents. The

court should have considered her professional expert testimony. As shown in her affidavit in the

record, Dr. Silberg was prepared to provide to the Court with: 1) expert information about child

trauma, neglect and abuse that would have been helpful for the Court in making an informed de-

cision about any facts presented in the case, and 2) critical background on the DC CFSA Investi-

gation that the court heard about through James Toscano's ex parte communications on April 23,

2009. Dr. Silberg as a mandated reported filed the complaint that initiated that April 2009 inves-

  18
tigation. Dr. Silberg should have been allowed to express an opinion based on the extensive

evidence that she had evaluated -- as described her affidavit (see, APP-74) found attached to the

Mother's Motion in Limini, filed June 10, 2009.

Similarly, Mr. Lehew is a well-known and experienced handwriting expert. The Court

also did not allow him to testify. He was brought in as an impeachment witness to show how Dr.

Myers misled the court regarding whose handwriting and signatures were on certain medical re-

cords, letters and prescriptions that were submitted by the Father's Counsel and never authenti-

cated by their original authors.

After hearing from these witnesses, the Court was free to weigh their opinions.

VI.  There  Was  and  Continues  to  be  Clear  Evidence  in  the  Record  of  the  Father's  
Medical  Neglect  and  Harm  to  the  6-­‐Year  old  Child  
The Court ignored all of the evidence of medical neglect and harm in the record:

1) The once very healthy child had only developed the very rare life threatening
blood and bone marrow disease of severe chronic neutropenia after the child was
placed in the predominant physical custody of Father, (See, e.g., April 22, 2009
Transcript)

2) Father did not to take the child to a pediatric hematologist/oncologist, as di-

rected by Montefiore Children’s Hospital in New York, for over four months, and
only after Dr. Robert Sklaroff, MD contacted the DC CFSA, who directed the Fa-
ther to seek specialized medical care for the child. (See, e.g., April 22, 2009 Tran-
script)

3) Father was directed by Montefiore Children’s Hospital in New York in June

2008 to secure psychological care for the child. In April 2009, the Children’s
Hospital in Washington, DC once again made this recommendation citing “Post
Traumatic Stress Disorder”. Now, two years later, the Father has failed to follow
those medical directives. (See, e.g., April 22, 2009 Transcript)

4) Father took the position below to block a bone marrow aspiration on the child -
- stating that it was "reckless" and chastised Dr. Robert Sklaroff for advocating it.
(See, e.g, April 23, 2009 Transcript) Yet, only months later, Dr. Myers ordered
that very bone marrow test that there is destruction, which Dr. Welte, an expert in
the field, believes is likely caused by toxins/drugs. (See, August 31, 2009 Letter
of Dr. Welte, APP-140)

  19
 5) The Father continues to direct the type of medical care, test, and treatment
given by Dr. Scott Myers, as apparent in his testimony -- including reviewing and
editing Dr. Myers charts. (See, Transcript of August 5, 2009) The father refuses
to entertain tests that have the ability to uncover the source of the severe chronic
neutropenia -- choosing instead to label it "benign."

6) The Father dictated to Dr. Scott Myers, the physician at Georgetown, the word-
ing of written directives to the child's school so that critical restrictions on her
proper care were omitted and not communicated, for proper life saving care of the
neutropenic child, (See, Transcript of August 5, 2009)

7) Father against the law, has instructed the child's physicians not to communi-
cate with the Mother or any of her representatives, (See, Exhibit IV: April 19,
2010 Letter of Father to GUH, found at R-APP-18)

Conclusion  
  For the reasons set forth herein, Mother respectfully prays, for the sake of her child's life,

safety and well being, that the Court order below be vacated, and remanded with proper instruc-

tions on exercising its affirmative obligation of having the role of "parens patriae." Nothing can

justify not having a truly independent medical examination, and doing all tests necessary for de-

termining the underlying cause of the severe chronic neutropenia, and the interim administration

of GCSF to boost her immune system, so that she is less susceptible to infections.

Roy L. Morris, Esq. (DC Bar No. 379711)

PO Box 100212
Arlington, Virginia 22210
202-657-5793, 509-356-2789 (Fax)
Roy_Morris@Alum.MIT.edu
Counsel for the Appellant  

  20
 Certificate of Service

I hereby certify that I have caused this May 3, 2010 the forgoing Reply Brief, to be served by
first class mail postage prepaid to:

Sean O’Connell
4113 Lee Highway
Arlington, Virginia 22207

______________

  1