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09/30/91 S.S. v. D.M.

September 30, 1991

S.S., APPELLANT
v.
D.M., R.M., AND J.S., APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. Harold L. Cushenberry, Trial Judge.

Rogers, Chief Judge, Ferren, Associate Judge, and Pryor, Senior Judge.

The opinion of the court was delivered by: Rogers

Appellant S.S. assigns three errors by the trial Judge in ordering the adoption of her six-year old son, J.S., by appellees D.M. and R.M., the child's maternal great aunt and her husband. *fn1 She contends that the trial Judge (1) erred in permitting the child's guardian ad litem to perform the dual roles of attorney and witness at the show cause hearing on why the petition for adoption should not be granted, (2) erred by taking judicial notice of and relying on findings of fact in a prior neglect proceeding where the evidentiary standard was only a preponderance of the evidence, and (3) abused his discretion in concluding that terminating appellant's parental rights was necessary to provide stability for the child, thereby denying her due process by not ordering the least drastic alternative affecting her fundamental right to raise her child. We agree that the Judge erred in allowing the guardian-attorney to act as attorney and witness at the hearing, but conclude that, in the absence of objection in the trial court, there was no miscarriage of Justice. For the same reason, while we agree that the Judge usually could not properly rely in finding a need to terminate parental rights on findings by a preponderance of the evidence in a neglect proceeding, in the absence of objection in the trial court, we conclude there was no miscarriage of Justice. Finding appellant's due process contention meritless, we affirm.

I

The child first came to the attention of the D.C. Department of Human Services (the department) in 1985 when he was a little over two years old, when his mother, appellant, took him to the hospital for treatment of an accidental burn after the child spilled hot water on himself while eating at a lunch counter with his mother. *fn2 During the child's stay in the hospital, appellant's unusual behavior attracted the attention of hospital employees, who contacted the department. *fn3 In 1985 a neglect petition was filed, and in 1986 the child was removed from appellant's care, and placed temporarily in shelter care. He was subsequently placed in the custody of his maternal grandmother, with whom appellant lived, but removed after less than four months. At appellant's suggestion, the child was placed on July 8, 1986 with appellees, the child's maternal great aunt, D.M., and her husband, R.M., and has resided with them ever since. *fn4 On June 2, 1988, appellees filed a petition to adopt the child.

The evidence showed that after the child had been with appellees for about a year friction developed between appellant and appellee great aunt, and appellant's visits with her child were shifted from appellees' home to the department. *fn5 Appellant's visits with her son at the department also did not always go well. *fn6 The child's guardian ad litem testified that he had accompanied appellant and her child on three visits, and that while appellant and the child enjoyed portions of their time together, the visits were sometimes marred by her angry outbursts. *fn7 In addition, the guardian ad litem described the child's progress while living with appellees, *fn8 observing that originally the child was withdrawn, barely speaking and walking only with difficulty, but through speech therapy and leg braces obtained by appellee great aunt, his disabilities had been eliminated. *fn9 The guardian's testimony also revealed that the child considered appellees to be his parents and their home his home. The guardian ad litem further testified that although his original efforts had been aimed at reunification of appellant and her son, upon witnessing the child's development while he was living with appellees, he now recommended that appellees be allowed to adopt the child.

Appellant testified that she wanted to have her son returned to her. She was of the opinion that she had cooperated with the court's orders in the neglect proceeding which had directed her to see psychiatrists and that she did not need psychiatric therapy or parenting classes. *fn10 She explained that she did not fully trust doctors, that she was steadily employed and had always been drug free, and that she had a home for her child. *fn11 She also expressed frustration with the courts because the matter of her child's custody had been pending for five years, stating that she wanted the Judge to make a decision about what was going to happen to her son and that if the adoption was ordered she would not interfere. She admitted hitting her child during supervised visits but claimed her conduct was justified under the circumstances, and also admitted taking her child home without the department's permission.

The trial Judge found that appellant was withholding her consent to the adoption contrary to the child's best interests. *fn12 Upon consideration of the statutory factors for termination of parental rights, D.C. Code § 16-2353 (1989), *fn13 as well as the best interests standard in adoption proceedings, D.C. Code § 16-309 (b)(3) (1989), *fn14 and balancing the options of leaving the child in appellees' foster care, the Judge concluded that adoption was in the child's best interests, and granted appellees' petition for adoption of the child, thereby terminating appellant's parental rights to her child.

II

Appellant contends that the trial Judge erred in allowing the child's guardian ad litem to serve dual roles as attorney and witness at the show cause hearing on the adoption petition. By serving as a witness testifying from his personal knowledge and also acting as an attorney explaining and commenting on the evidence and examining witnesses, the guardian's credibility was enhanced in the eyes of the court, appellant maintains. She further maintains that allowing the child's attorney to testify as a fact witness violated the ethical rules prohibiting attorneys from acting as both advocates and witnesses in the same proceeding, D.C. RULES OF PROFESSIONAL CONDUCT Rule 3.7 (Supp. 1991), and that these prohibitions exist precisely because of the prejudice to an opposing party that may result when the dual roles combine to enhance the attorney's credibility in the eyes of the fact-finder. Because appellant did not object at trial to the guardian ad litem testifying as appellees' witness, our review is limited to a determination of whether the error resulted in a "miscarriage of Justice." Scoggins v. Jude, 419 A.2d 999, 1002 (D.C. 1980); see also President and Directors of Georgetown College v. Diavatis, 470 A.2d 1248, 1251 (D.C. 1983) (citing Miller v. Avirom, 127 U.S. App. D.C. 367, 384 F.2d 319 (1967)).

We first review the testimony of the guardian ad litem, then the statutory framework, and finally the Rules of Professional Conduct.

A

The child's guardian ad litem testified, as a witness for appellees, that he was originally appointed as guardian ad litem for the child at the initial hearing in August 1985, when the child was at St. Anne's Receiving Home. *fn15 The guardian ad litem explained that he had viewed the child as his client but that he had also acted in "a kind of protective role for him." *fn16 In the opinion of the guardian ad litem, appellees' petition for adoption should be granted in the child's best interests. Summarizing the reasons for his opinion, the guardian ad litem pointed to the child's view of appellees' home as his home, the child's development while residing with appellees, and the guardian's opinion that reunification is "not a viable goal in this case." The guardian began to explain why he had changed his mind from his original position that the mother had not neglected the child and that the child should be returned to her.

At this point the trial Judge inquired of the guardian ad litem whether, during the neglect proceeding, he had been wearing "both your attorney hat and your guardian ad litem hat?" The guardian replied that since the child was only three years old at the time of the neglect proceeding, he had been acting as guardian ad litem. Yet in describing his conduct the guardian ad litem recounted that he had challenged the government's vague allegations of neglect, obtained two medical evaluations of appellant, and concluded then that as between government care and appellant's care, the child's best interests lay in being with appellant, particularly since one doctor had testified that appellant could benefit from therapy, which he was willing to provide. After the child was placed with appellees, however, the guardian ad litem became "a fan of Mrs. M -- --," appellee great aunt, once he observed "the remarkable turnaround" in the child while under her care.

Thereafter, the trial Judge asked the guardian ad litem a series of questions about the child: his physical condition when the guardian first met him, whether the guardian's observations of the child had been continuous to the present time, whether the child's physical problems persisted at the present time and how they had been abated; about appellees: the guardian's opinion of the suitability of appellees' home for the child, their financial ability to provide for the child, the child's relationship with appellee great uncle; and about reunification: the guardian's efforts to reunify appellant and the child, and the reason that reunification efforts ceased. Regarding reunification, the guardian ad litem described the three visits he had monitored between appellant and the child in late 1988 and early 1989, when appellant took umbrage at the child's view of appellees as his parents. The guardian ad litem also expressed his legal opinion that the termination of parental rights statute allowed for a shift in emphasis from reunification to the ...


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