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11/27/91 MATTER BABY GIRL D.S. V.V.

November 27, 1991

IN THE MATTER OF BABY GIRL D.S., V.V., APPELLANT


Appeal from the Superior Court of the District of Columbia; (Hon. John H. Suda, Trial Judge).

Before Ferren, Steadman, and Schwelb, Associate Judges. Opinion for the court by Associate Judge Ferren. Opinion of Associate Judge Schwelb Concurring in the judgment.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge : In this case, the trial court denied, without prejudice, *fn1 a guardian ad litem's motion to terminate the parental rights of a fifteen-year-old natural mother, T.S. In declining to terminate, the court did not conclude the mother was a fit parent. Rather, by looking ahead to a pending adoption contest in which the foster mother and the maternal grandparents both sought to adopt the baby girl, the court concluded that termination would harm the child by cutting off access to both her mother and her grandparents, the E.s, before the adoption issues could be resolved. Appellant V.V., the court-appointed foster mother of the baby girl, D.S., has appealed. Having intervened in this proceeding because of her interest in adopting the child, V.V. claims, primarily, that the trial court (1) abused its discretion by failing to consider the physical, mental, and emotional health of the mother, T.S., as the statute requires; (2) improperly considered a "grandparent" factor in deciding not to terminate the mother's parental rights; and (3) improperly weighed the impact of termination on the pending adoption proceeding. V.V.'s contentions may have some merit when considered wholly in the context of the termination proceeding. But we perceive a fundamental procedural flaw in the earlier refusal of the trial court (not the trial Judge here) to consolidate this case with the contested adoption proceeding. Therefore, rather than order a new termination proceeding, we reverse and remand for consolidation of this case with the pending adoption proceeding. Termination can -- and should -- be considered without further delay, but the proper way to do so at this point, in the best interest of the child, is in connection with V.V.'s and the E.s' competing petitions to adopt her.

This case is significant for two reasons. First, it presents the question of the role of a separate termination proceeding when an adoption proceeding for the same child -- indeed, a contested adoption proceeding -- is pending. Second, the case raises the question of the relevance and role, if any, of the child's non-custodial maternal grandparents in a proceeding to terminate the parental rights of the mother. We conclude that, in this case, the proceedings should have been consolidated once V.V., the foster mother (who also is seeking to adopt D.S.), intervened in the termination proceeding. A consequence of V.V.'s intervention was that the court, instead of treating the proceeding exclusively as one for termination of parental rights, permitted evidence and made findings as though contested adoption issues were also before the court. This led -- as suggested by the second significant concern here -- to an improper focus on the maternal grandparents and a cursory treatment of the fitness of the child's mother herself. As a result, the trial court denied termination because the court apparently thought that the grandparent issue would better be resolved in the adoption proceeding. Thus, this proceeding became neither fish nor fowl -- neither termination nor adoption. The better course now is to recognize the problem and to remand for consolidation of all termination and adoption issues, since this will be in the child's best interest.

I.

D.S. was born July 9, 1986 to T.S., then fifteen years old, who herself had been adjudicated a neglected child in 1985. Because appellant V.V. was acting as T.S.'s foster mother, V.V. was appointed on July 17, 1986 to take care of D.S. as well when the baby girl was eight days old. Both mother *fn2 and child returned to V.V.'s home after the child's birth, but the mother, T.S., soon left. V.V. has remained the uninterrupted custodian of D.S.

The Department of Human Services (DHS) filed a child neglect petition on July 11, two days after D.S.'s birth, alleging that the mother, T.S., had emotional problems, a history of drug dependency, and abscondences from agency group homes. DHS was concerned that T.S. would disappear with the baby. When D.S. was five months old, the trial court, in accordance with a stipulation signed by the mother, found D.S. to be a neglected child within the meaning of D.C. Code § 16-2301 (9)(B) and (C) (1989). *fn3

In February 1988, V.V., the foster mother, filed a petition to adopt D.S. Ten months later in December 1988, when D.S. was 29 months old, her guardian ad litem *fn4 filed a motion to terminate T.S.'s parental rights. The motion stated that T.S. had not visited D.S. since May 1987, that T.S. was still emotionally unstable and continued to escape from her residential placements with her present address unknown, and that she did not wish to avail herself of parenting assistance which DHS had offered. The motion noted that D.S. "continued to grow and thrive in the care of [V.V.]" and that "there are no known relatives who might be suitable for placements for [D.S.]." The accompanying memorandum also noted that the foster mother, V.V., had developed a "warm, loving parent-child relationship" with D.S., [R. 40] while her maternal grandparents, the E.s,

have expressed an interest in caring for [D.S.] but not on a permanent basis. There has been only occasional contact between [D.S.] and her grandparents and a parent-child relationship has not developed nor has it been attempted. *fn5

Two days after this motion was filed, the court ordered the weekly supervised visits between mother and child reduced to monthly visits if T.S. had two consecutive no-shows with less than 24 hours notice of cancellation. Except for one visit in January 1989, T.S. did not visit D.S. from the time the motion to terminate was filed in December 1988 until the termination hearing almost a year later in November 1989. By December 1988, therefore, D.S. was the subject of three proceedings: neglect, termination of her mother's parental rights, and adoption by the foster mother. *fn6

The court issued an interlocutory order granting V.V.'s adoption petition and scheduled a show cause hearing for February 21, 1989 to finalize the order. Counsel for the mother, T.S., moved on February 9 to consolidate D.S.'s neglect/termination proceeding with V.V.'s adoption proceeding. *fn7 The motion was denied. Then, on February 21, the child's maternal grandparents, the E.s, filed a petition to adopt D.S., which the court consolidated with V.V.'s petition. Given this development, the court then vacated the interlocutory order granting V.V.'s adoption petition.

On April 6, 1989, while the termination motion and adoption petitions were pending, the child's mother, T.S., signed a form consenting to D.S.'s adoption by the grandparents, the E.s (T.S.'s natural mother and stepfather). In doing so T.S. purported to relinquish all her custody, guardianship, and parental rights over D.S. to the grandparents. On June 5, counsel for T.S. moved for reconsideration of her motion to consolidate the neglect/termination proceedings, see (supra) note 7, with the adoption proceedings, arguing that the same evidence *fn8 would be presented in both cases and that, regardless of the outcome of the termination proceeding, adoption proceedings would be necessary. The foster mother, V.V. -- who was a party in both the neglect and the adoption proceeding, but not in the termination proceeding at that point -- opposed the motion on the grounds that these proceedings did not involve the same parties (because the E.s were not parties to the neglect/termination proceeding, see (supra) note 8, and she was not a party to the termination), and that it was too much to ask V.V. to oppose both a hostile mother and hostile grandparents in the same adoption proceeding. V.V. also argued that the neglect/termination and adoption proceedings were fundamentally different: the former focused on the mother's behavior and relationship with her child, while the latter focused on which of two parties should be allowed to adopt the child. The court denied the motion to reconsider on June 19, 1989. On July 13, 1989, V.V., already a party to the neglect proceeding, filed a motion to be joined as a party to the termination proceeding pursuant to D.C. Code § 16-2356. *fn9 The court granted the motion a month later. The E.s did not file a motion to intervene in the termination proceeding, and the court did not name them as parties on the court's own motion.

On August 24, 1989, the child's mother, T.S., moved to continue the termination proceeding because she was incarcerated on a solicitation for prostitution charge and had a trial date on the same date as the scheduled termination hearing. *fn10 Finally, on November 24, 1989, the court held the termination hearing.

In opening argument, the guardian ad litem for D.S. argued that this was a simple case of abandonment of a child by a teenage mother who had emotional and mental problems and had not shown any interest in rearing her child. Counsel for T.S., however, replied that the natural family had not abandoned D.S. Counsel stressed that

this mother is at this point ready to take her child, wants to take her child, wants her child to be with her parents, has consistently expressed that since 1987 and that this family, this natural family is ready, willing and able to take care of this child, and that that sense of identity that a child would have with the natural family -- who is my mother, who are my grandparents -- is a profound one and one that this Court has considered.

Counsel for T.S. also charged the social workers with prejudice in favor of the foster mother (V.V.) and against the natural mother (T.S.) and the maternal grandparents (the E.s).

Ms. Smith, the social worker who had worked with the child's mother, T.S., since April 1986, testified that T.S. had a history of drug usage, of emotional instability, and of running away from her own home and from agency placements. She explained how T.S., on learning she was pregnant, had asked to live with V.V., who was a friend of the family and was someone T.S. believed would be willing to take care of her. T.S. preferred not to live at home because "she said she could not get along with her mother" and her stepfather "would physically discipline her." Ms. Smith noted that between 1986 and 1989, she had had over 66 contacts with T.S., many of them casual run-ins on the street, in an alley, or at a store, and had discussed with her the need to plan for D.S. and to follow court orders so that she could avoid termination of her parental rights. In those three years, however, T.S. had visited her child once in January 1989 accompanied by her stepfather; had attended only one of the five visits arranged for her in 1988; and, between May 1987 and March 1988, had not visited her child because T.S. had been placed in a residential treatment facility in Florida (from which she eventually had absconded). Ms. Smith also testified that she had personally asked the E.s if they would take D.S. at birth, but that they had refused because Mr. E. "did not want the child in the house with . . . his own kids and he thought that [T.S.] was a problem, and he felt [T.S.] should be somewhere else." On cross-examination, counsel for T.S. did not challenge the facts presented about T.S. but questioned Ms. Smith about the accuracy of her recording the visits by the E.s. On rebuttal, the court inquired at great length (15 pages of transcript) into the services Ms. Smith had offered the E.s. Ms. Smith replied that she had offered Mrs. E. individual therapy and parenting classes but that Mrs. E. had refused them. Therapy for the E.s and T.S., as a family, had been provided by the residential centers where T.S. had been placed.

Dr. Wynne, a clinical psychologist, testified that he had tested T.S. in 1986 when she was fifteen and had found she was borderline retarded in her verbal scores and retarded in her scores on hand/eye coordination and spatial orientation. Academically, T.S. tested in the third to fourth grade level. T.S. had difficulty with sequencing, a learning disability that would make it hard for her to get her life in order, to keep track of her possessions, to keep appointments, and to learn to read. When asked whether T.S. could have changed in the three years since he evaluated her, Dr. Wynne replied that he knew "of no remedial program anywhere in this country that in three years could change that child dramatically." He further testified that T.S.'s learning disability was complicated by serious emotional problems, poor impulse control, and a low self-image in part because she had been sexually abused by her birth father and because her mother had not believed her claim. *fn11

Dr. Wynne also tested D.S., V.V., and the E.s in 1987 as part of a court-ordered home study. See (supra) note 5. He found that D.S. was "a nifty kid. She was real, real bright, extremely pretty, obviously very well cared for, emotionally secure, competent child." He testified that "we were very impressed with [V.V.]. She seemed . . . a wise woman." Concerning V.V.'s relationship with D.S., Dr. Wynne reported that "it was terrific . . . a parent/child relationship at its best." Regarding Mrs. E., Dr. Wynne testified that he was concerned that her relationship with T.S. mirrored her own childhood trauma in which she had been sent away by her own family to live with a difficult birth father. Dr. Wynne concluded that Mrs. E. seemed to have little awareness of the depth of trouble T.S. was experiencing. He testified that Mrs. E.'s assessment in 1987 that T.S. would have her life together in a year or so was very inappropriate and revealed that Mrs. E. did not see T.S. or T.S.'s relationship with D.S. with realism and clarity. He also testified that in 1987 Mrs. E. had not wanted to adopt D.S.; she had just wanted custody because she viewed D.S. as T.S.'s ultimate responsibility. On cross-examination, Dr. Wynne agreed that Mrs. E. was an intellectually capable woman with a warm and stable relationship with her husband, T.S.'s stepfather. Mrs. E. also had a steady government job and a relaxed relationship with her two stepchildren by her marriage to Mr. E.

V.V., the foster mother, then testified. She said she had first met T.S. and the E.s in 1983 when they lived in the same apartment building where V.V. continues to reside. T.S. began to live with V.V. in October 1985 when T.S. first learned she was pregnant and wanted someone she could confide in. After D.S. was born, however, T.S. stayed with V.V. for only one day. According to V.V., T.S. visited with D.S. only six times between birth and the termination hearing. These visits totaled about twenty hours. In the summer months before the November 1989 termination hearing, V.V., accompanied by the child, had four or five casual contacts with T.S. on the streets of her neighborhood. The conversations, however, had lasted about a minute or two, and T.S. had never inquired about D.S. or expressed an interest in visiting her child. When V.V. asked T.S. why she did not visit her daughter, T.S. "just backed off and went away." V.V. further testified that the E.s, at first, had visited V.V.'s home approximately 20 times under arrangements made by the social worker. Later, the court changed the visitation procedure so that visits were allowed only at DHS offices and in V.V.'s presence. On cross-examination, V.V. explained that she had not worked for six years because she had a back injury, that she had applied for disability, that her twenty-year-old daughter lived with her, and that she had not requested, but did receive, the services of a respite worker who gave her time off from her parenting responsibilities.

Ms. Pitman, a respite worker for Lutheran Social Services, testified that she had been sent to V.V.'s home in November 1986 in order to provide respite services for T.S., who had been placed with V.V. However, she never saw T.S. during her 75 visits to V.V.'s home. She also testified that D.S. refers to V.V. as "mother" and that D.S. has "grown beautifully" under V.V.'s care. At the time of the hearing, Ms. Pitman provided respite care to V.V. at least once every two weeks.

Ms. Bowman, a social worker at the hospital where D.S. was born, testified that T.S. had asked her mother, Mrs. E., whether she could come home to the E.s with baby D.S. Mrs. E. had refused to take D.S. because she had never gotten along with T.S. and "had her two kids and her new husband" to look after.

T.S.'s counsel called as her first witness Pastor Adams of the Word of Life Church of God in Maryland, who was questioned about his knowledge of the E.s. He testified that the E.s had been members of his church for six years and were currently directors of the children's program. Counsel for V.V. objected to the relevance of this evidence in a termination proceeding, arguing it should be admitted only at an adoption proceeding. The court sustained the objection. The Pastor characterized the relationship between T.S. and her parents as a challenging and tough relationship. "They've tried to keep her in the home, they've tried to provide a good home for her." He also noted that T.S. attended the church youth group regularly. He was unaware, however, that T.S. had been previously adjudicated a neglected child. The court sustained objections when counsel asked if he had knowledge of T.S.'s recent criminal record.

T.S.'s next witness was her stepfather, Mr. E., whose testimony in part supported that of Ms. Smith, the social worker. He stated that the E.s did not take custody of D.S. when she was born because they were having problems with T.S.; their family was "in chaos, you know, because [T.S.] was going through some experiences as far as molestation"; and they needed temporary help so that they could "piece our family back together." When asked about T.S.'s sexual abuse, Mr. E. replied twice, "It's like the little boy who cried wolf, you know, like that." *fn12

Mr. E. testified at length about how difficult the court and Ms. Smith had made visitation for them after the court cut off visits at V.V.'s home. Mr. E., however did recall that he had a court-appointed attorney to assist him through the process. He also testified that T.S. was currently stable, going to church regularly, and " not the same person she was in 1986." When counsel for V.V. tried to elicit from Mr. E. whether he knew why T.S. was currently on probation or why she had previously been ruled a neglected child, the court ruled the questions irrelevant.

The last witness for T.S. was her natural mother, Mrs. E., who testified that T.S. "has been a most difficult child, running away on a daily basis -- and being really out of control." Mrs. E. often did not know where T.S. was staying; nor did she always know where her other daughter was living. Mrs. E. testified that she had not let T.S. come home in 1986 with her new baby because the E.s needed professional help to put their family back together again. "We didn't want [T.S. and D.S.] to come into our home and have a lot of problems that would be too upsetting. . . . " Mrs. E. explained that the social worker had asked her to take the baby alone but that she had refused because she had wanted D.S. and T.S. to establish a bond. She further testified that she believed D.S.'s foster placement was temporary, and she claimed that she had no knowledge of V.V.'s adoption petition until it was nearly final. On cross-examination, however, Mrs. E. acknowledged that she had been present at court hearings in 1988 when V.V.'s adoption petition had been discussed.

Like her husband, Mrs. E. testified at great length that the social worker had been uncooperative, had made it difficult for them to arrange visits with D.S., and would not let them have overnight visits with D.S. when their daughter was in town for fear that T.S. would abscond with the baby. She also testified that her court-appointed lawyer had not helped them but that she had not asked for a different lawyer.

When asked about the quality of her interaction with D.S. during her visits, Mrs. E. explained that V.V. would remain present:

[V.V.] would try to leave out sometimes, and the baby, you know, would want her to stay, and I have to be very honest about that.

Mrs. E. also stated that she did not make any financial contribution through the social service agencies to help D.S.

Finally, when describing her past relationship with her daughter, T.S., Mrs. E. testified that "we had a very good relationship. She would always talk to me." Mrs. E. described T.S. in 1989 as "stable. She's not as angry as she used to be, and she's cooperative," often going to church with the E.s on Friday nights and all day Sunday. On cross-examination, however, Mrs. E. explained that even in the past six months T.S. has been away from the house overnight without her parent's knowledge. She also acknowledged that in the past six months T.S. had been arrested for soliciting for prostitution, for "talking to some policemen or something." While Mrs. E. knew that one condition of T.S.'s probation was to stay at ...


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