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12/03/90 D.G. AN INFANT D.G.

December 3, 1990

IN RE: D.G., AN INFANT; D.G., APPELLANT


Appeal from the Superior Court of the District of Columbia; Hon. Warren R. King, Trial Judge

Rogers, Chief Judge. Terry and Farrell, Associate Judges. Opinion for the court by Associate Judge Terry. Concurring opinion by Chief Judge Rogers.

The opinion of the court was delivered by: Terry

This is an appeal from an order terminating parental rights under D.C. Code § 16-2353 (1989). Appellant, D.G.'s natural mother, argues that the Department of Human Services (DHS) failed to make "reasonable efforts" to reunite the family prior to termination, and that this failure violated the federal Adoption Assistance and Child Welfare Act (CWA). *fn1 We hold that the CWA does not confer standing on appellant to demand relief of the type she seeks.

There has been, however, a significant change in circumstances since the trial court's decision to terminate appellant's parental rights. D.G.'s adoption, which appeared to be imminent at the time of the termination proceedings, is no longer a realistic possibility. Because we do not know how much importance the trial court attached to the prospect of adoption, we vacate the termination order and remand the case for further consideration in light of this change in circumstances.

I

D.G. was born on June 29, 1976. In 1982 his mother *fn2 placed him and his sister in the emergency care of DHS. After six weeks without contact, the mother re-established ties with her children, and they were returned to her care. On December 18, 1984, the mother again abandoned her two children at a DHS office, explaining in a note that she was mentally ill and suicidal, and that she wanted no further relationship with her children. D.G. was placed in a foster home on January 19, 1985. In early February the Corporation Counsel filed a neglect petition in the Superior Court, alleging that D.G. had been abandoned by his mother, and a few days later the court entered an order placing D.G. in the custody of DHS. His mother was granted supervised visitation rights.

After several attempts were made to provide D.G.'s mother with assistance, DHS conducted an administrative review of his case at a hearing in September 1986. As a result of that review, DHS determined that reunification of D.G. with his natural mother was an unrealistic goal and that, given the mother's unwillingness to plan for D.G.'s return to her custody, adoption was in the child's best interest. When a case worker informed D.G.'s mother of the agency recommendation of adoption, the mother did not request visitation or any assistance in seeking reunification.

On August 27, 1987, a motion to terminate the parent-child relationship was filed by D.G.'s attorney in the still-pending neglect proceeding. After an evidentiary hearing, the court entered an order granting the motion, from which this appeal is taken.

The first witness was Denise Keeling, a social worker with the adoption unit of DHS, who had been assigned to D.G.'s case for almost a year prior to the hearing. Keeling testified:

To my recollection . . . several attempts were made by the workers to reunite the children back with their mother. She had some problems with her rent and was receiving public assistance, and they had assisted her in filling out her public assistance application and also applying for food stamps, and a previous worker, to my understanding, had met with her to try to make some plans to care for the children, to have them returned home.

Keeling referred to two notes in the DHS case file, both apparently written by D.G.'s mother, which indicated that the mother had no interest in caring for her children. *fn4 She also said that D.G. could not recall when his natural mother had last visited him. Keeling herself had visited D.G. in his foster home, which appeared to her to be a good placement.

LaTonya Reynolds was a social worker with Family and Child Services, a private, non-profit contract agency. As D.G.'s family case worker from August 1986 until July 1987, her responsibility was to work "toward reunification, primarily, if that's possible, and if not . . . to get a child adopted after all efforts been done." Discussing her attempts to reunite D.G. with his natural mother, Reynolds said:

From August of '86 to approximately May of '87, all efforts to contact Ms. G. personally unsuccessful. We had several telephone contacts, and we also scheduled several office visits as well as home visits. However, she would never follow through.

Reynolds testified that she informed D.G.'s mother of the "urgency" of the pending administrative review in September 1986 and even went to the mother's home to offer her a ride to the hearing. The mother, however, did not attend the hearing.

On one occasion in May 1987 Reynolds did meet with D.G.'s mother in her home. Reynolds went there because "we had to to court and all, along with my trying to work with her." At that time they discussed D.G.'s future, and Reynolds told D.G.'s mother of the probable consequences of not planning for her children. The mother, however, did not ask for assistance to expedite reunification with her children, but she did request a referral for her own mental health problems. Transportation was provided, and she checked herself into Saint Elizabeths Hospital for approximately one week.

Reynolds said that "attempts and contacts were made pretty much anywhere from three to four times per month." She testified that D.G.'s mother said she had no reason to visit D.G. because he was well cared for in his foster home. Apart from the psychiatric referral request, the mother's only expressed need was for assistance in securing pension benefits for the man alleged to be D.G.'s father. She made no specific request to visit with her son. Reynolds tried to set up a visit during the Christmas holidays, "but there was no response from that December correspondence." On cross-examination Reynolds stated that she had initiated the exchanges with D.G.'s mother on almost every occasion, with only one exception. She also pointed out that even after the administrative hearing, she tried to contact the mother in November 1986 to find out whether she had any interest in reunification, but she received no response. Finally, Reynolds testified that she prepared, on behalf of her agency, a report for submission at the administrative review proceeding in September 1986. The report described "family activity" and did not express a preference for either reunification or adoption. The independent reviewer, however, determined that adoption was the preferable course for D.G.'s future.

Florrie Green, D.G.'s foster mother, testified that D.G. was placed in her home for two months in 1982, until his aunt "came and got him." He was returned to Mrs. Green's home in January 1985 and remained with her from that time until the date of the hearing in July 1988. She said that she and her husband were planning to adopt him and that D.G. was "looking forward to it." *fn5 Green stated that two visits per month were scheduled between D.G. and his natural mother, but that the mother had visited only three times during the three and a half years since D.G. came to the Green household in January 1985, and not once in the previous year.

Daniel Craddock, a DHS social worker, was assigned to D.G.'s case for approximately four months, from September 1986 (shortly before the administrative hearing) to January 1987. Craddock testified that his role was to be "mainly responsible for the child" and that he "had no interaction with the family whatsoever," although he did have regular contacts with another social worker, LaTonya Reynolds, who was dealing with D.G.'s mother. He said that the "change of objective" (from long-term foster care to adoption) which resulted from the administrative hearing was due to two factors: the lack of visitation from D.G.'s parents (i.e., his mother) and D.G.'s willingness and desire to be adopted. Craddock noted that he was not barred from urging reunification, despite the administrative recommendation. D.G.'s mother, however, gave no indication that she was prepared to care for her son.

D.G.'s attorney, relying on D.C. Code ยง 16-2353 (1989), argued that the child's best interest was the controlling factor in the decision to terminate parental rights. Counsel for D.G.'s mother, however, argued that the controlling factor was whether DHS had done "everything possible" to reunite D.G. with his natural mother. Citing federal statutes and case law from other jurisdictions, counsel argued that the court must determine that all "reasonable efforts" for reunification had been made, and that the District had an ...


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