concurring:
I join in Judge Ferren’s opinion. In doing so, I acknowledge that our dissenting colleague is undoubtedly correct that the best interests of the child are ultimately the central consideration in the underlying Family Division case. But granting that, we must consider how keeping Morgan in jail will serve the child’s best interests. Incarceration will serve the best interests of the child only if there is some reasonable likelihood that it will coerce Morgan into producing the child. If incarceration at this time is no longer coercive in that sense, but rather has become merely punitive, then the child’s best interests are not advanced at all by continued incarceration. Instead, further incarceration would likely be attended by a continuing stalemate1 during which, as Judge Mack so aptly puts it, “[a] missing child in these proceedings divests a protecting court of the power to act.” Dissent at 18.2
While it is difficult to accept the proposition that a purposeful litigant can effectively deprive the courts, even temporarily, of the power to adjudicate a matter entrusted to them under our system of laws, that difficulty does not alter the nature of civil contempt, nor does it warrant holding Morgan in jail any longer if her incarceration has become merely punitive. The law will simply have to turn to means other than Morgan’s incarceration for civil contempt to attempt to secure the presence of the child and thus permit the completion of unresolved litigation concerning custody and visitation.
In this ruling today, the majority holds that, on this record, the trial court erred in finding that Morgan had failed to carry her burden of establishing that further incarceration holds out no realistic possibility of compelling her compliance with the order that the child be returned to the jurisdiction of the court. In other words, the trial judge’s decision is not supported by the evidence of record.
As the cases cited by both Judge Ferren and Judge Mack make clear, a trial judge’s prediction of what a human being is likely to do in the future is difficult to review at the appellate level; but under our judicial system, such review is called for, and the statute which governs this court’s review of Superior Court proceedings tried without a jury provides for reversal of a trial judge’s findings of fact if they are without support in the evidence of record. D.C. Code § 17-305 (1981).3 I agree with Judge Ferren’s analysis of the evidence.
*14In this case, all indications are that Morgan will persist in her recalcitrance in the face of incarceration. The very fact that she has stayed in jail for almost two years strengthens the conclusion that she will not be coerced by further incarceration. For the above reasons, I join in Judge Ferren’s opinion. I agree also with much of what Judge Mack has written, in particular her statements about the conduct of the parties leading up to Morgan’s incarceration and her indication, similar to that of Judge Fer-ren, that the trial judge has dealt conscientiously with a most difficult case. I disagree, however, with the dissent’s conclusion that the trial judge can make a purely discretionary decision as to whether the contemnor should be released. It is incumbent upon this court to review the entire record and to decide whether it supports the trial judge’s ruling.
. Any stalemate would be broken, despite Dr. Morgan’s recalcitrance, if the child were produced through the efforts of law enforcement agencies; but so far as appears of record, no such efforts have been made. I join emphatically in Judge Ferren’s expectations that agencies of the executive will assist in the court’s efforts to produce the hidden child.
. I emphasize that Judge Mack has referred to a "protecting court”; I also realize that Morgan has repeatedly faulted the trial court for failing to protect the child. But Morgan is a partisan in this contested case, as is Foretich. It is true that Morgan has adduced evidence from which a factfinder could find that Foretich is not a fit custodian of the child and therefore should not be given custody. But there is also evidence that could lead the factfinder to have doubts about Morgan’s fitness. This troubling conflict must be decided at the trial level, subject only to appropriate appellate review. Judge Dixon’s view is certainly reasonable that the Family Division proceedings cannot be concluded until the child is returned.
.While an appellate court is not frequently called upon to review trial court predictions of human behavior, the civil contempt context is *14not the only situation in which an appellate court has that role. Another instance of such review is presented when the trial court sets conditions of pretrial release in a criminal proceeding. If, for example, the trial court grants release on the basis that the defendant is not likely to flee the jurisdiction, but relevant indications in the record are to the contrary, the appellate court may reverse the trial court’s finding that the government has failed to carry its burden. United States v. Shakur, 817 F.2d 189 (2nd Cir.1987); see also United States v. Motamedi, 767 F.2d 1403 (9th Cir.1985) (reversing the trial court’s predictive finding that the defendant is likely to flee the jurisdiction).