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Application of L.L.

February 9, 1995


Appeals from the Superior Court of the District of Columbia; (Hon. Susan R. Winfield, Trial Judge)

Before Terry and Schwelb, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Schwelb


SCHWELB, Associate Judge: These expedited appeals stem from two consolidated trial court proceedings relating to appellant M.D., Jr., now four years old. Appellant L.L., who has been M.D., Jr.'s foster mother for more than two and one half years, initiated the first proceeding, seeking leave of court to adopt him. In the second proceeding, M.D., Jr.'s guardian ad litem, who supports the foster mother's petition for adoption, asked the trial court to terminate the parental rights of appellee M.D., Sr., M.D., Jr.'s biological father. Following a six-day bench trial, the Judge ruled in the father's favor and denied both petitions. We reverse the judgment and remand the case to the trial court with directions to terminate the father's parental rights and to grant the foster mother's petition for adoption.



At the Conclusion of the trial, the Judge made extensive findings as to the historical facts, most of them undisputed. She also made a number of findings of ultimate fact which are arguably irreconcilable with her evidentiary findings, and which appellants attack as clearly erroneous. We outline the facts as found by the Judge.

A. M.D., Jr.'s History.

M.D., Jr. was born on October 13, 1990. His mother was a cocaine addict and abused cocaine during her pregnancy; M.D., Jr. tested positive for cocaine at birth. His father has been incarcerated for robbery and for indecent liberties with a minor, and has been hospitalized for serious psychological problems, which have resulted in several suicide attempts, homicidal ideation, and threatening conduct.

During the first seven months of his life, M.D., Jr. lived with both of his parents. His mother continued to use crack cocaine, and his father, who was unemployed for most of this period, attempted to care for him. *fn1 When the father found occasional work as a janitor, however, he left M.D., Jr. with the mother. As the trial Judge expressly found, "periodic child care from a cocaine-abusing mother simply was not best for the infant."

In May, 1991, the mother left M.D., Jr. with a neighbor whom the Judge later described as "an unwilling caretaker." The father "decided he was going to go to work, rather than stay at home with the baby." Accordingly, the father surrendered M.D., Jr. to a police officer, who took him to the Department of Human Services (DHS). Two weeks later, the parents signed an agreement voluntarily placing M.D., Jr. with DHS for a period of ninety days. The agreement provided that at the end of this period, M.D., Jr. was to be returned to the parents unless the agency instituted neglect proceedings. In September, 1991, DHS did file a neglect complaint, and M.D., Jr. was subsequently committed to the custody of the agency by order of the Superior Court.

Upon being delivered to DHS, M.D., Jr. was placed at St. Ann's Infant and Maternity Home. He initially experienced periods of inconsolable crying often associated with prenatal exposure to cocaine. *fn2 He received specialized treatment at St. Ann's, and his condition gradually improved.

In February, 1992, M.D., Jr. was introduced to appellant L.L., the foster mother. On February 22, following a weekend visit, he was placed in L.L.'s home. He has lived there ever since.

During the time that M.D., Jr. has been in the care of DHS, the father has visited him somewhat intermittently; *fn3 the mother has come even less frequently. The Judge found that, as between father and son, most or all of the visits went very well. The father was, however, boisterous and argumentative with social workers, *fn4 and his threat against one of them resulted in his being barred from the For Love of Children (FLOC) building. The father agreed to participate in drug testing and to register for outpatient treatment at St. Elizabeths Hospital but, as the Judge expressly found, he "did not comply."

B. The Foster Home.

The trial Judge made the following findings regarding the foster mother with whom M.D., Jr. was placed and the home in which the two of them now reside:

L.L. is a 34 year old trade union secretary, who works for a children's health care organization, who trained as a foster parent. . . .

She describes the daily activities. They are typical events in the life of a working single parent. She gets him up. She gets him ready for day care. She takes him to day care. She makes certain that he's stable and secure where he is, and she goes to work.

She picks him up. She feeds him. She reads to him. They play together. And she takes him to bed.

On the weekends they play. He is a part of her . . . extended family and family activities.

They live in a neighborhood of single-family homes with other children in the neighborhood. And they live specifically in a four-bedroom split level, with a playroom for M., Jr.

M. spends each day with a day care provider, from 7:45 a.m. to 5:30 p.m. Ms. L. shares her home with a female cousin, and the cousin's two sons, ages 7 and 12.

Ms. L. has, since she had M. in her home, worked diligently with the staff at the National Children's Center and with Dr. V. to assist in improving M., Jr.'s development.

On those factual findings, the court concludes that this child appears to be bonded well, both to his natural father, and to his foster mother, but not to his natural mother.

C. The Father.

M.D., Jr.'s mother has consented to his adoption. *fn5 The Judge made extensive evidentiary findings regarding the father and his history, and WB quote from them in some detail:

[M.D., Sr.] was born some time around 1961 . . . . At age 15, which was about 1976, he committed his first suicide attempt. At that time, he was the victim of an abusive, alcoholic father. *fn6 He had left home, and he was living in the streets.

Two years later, at age 17, in about 1978, he was convicted for robbery, and was sentenced to five years. He further stated in his medical records that he had sold phenmetrazine [an unlawful drug] . . . on the streets for profit.

Three years after that, at about age 21, in about [1981], he committed his first serious attempt to hang himself at Lorton. He was transferred to the John Howard Pavilion at St. Elizabeths. And this was immediately following news that his father had died of cancer.

Two additional suicide gestures occurred while the father was at St. E's . . . . At one point [in 1984] when he learned that his mother had been hospitalized for a heart condition after he thought that she had been slapped by his brother, he dropped exercise weights on his chest in an attempt to hurt himself.

Again, at the hospital following this incident, he threatened to put his brother in a wheelchair. He had some run-ins with other patients . . . .

June 1985, there was an attempted hanging at John Howard Pavilion at St. Elizabeths. Also, Mr. D. threatened a security guard, because the guard accused Mr. D. of molesting a female visitor to the hospital. At that point, he, Mr. D., was reported to be manipulative and belligerent, abusing alcohol and being generally abusive toward the staff. He was to have been discharged to an outpatient treatment program. He never kept appointments. And he was ultimately discharged finally in September of 1987.

In 1987, he married C.D. In 1988, he was convicted for child molestation, and sentenced to serve from January to November of 1989.

When he returned home from prison, he found that [C.D.], his wife, was prostituting herself and was heavily abusing cocaine.

In October of 1990, he returned to the hospital, complaining that he was afraid he would kill his wife because he couldn't stop her from using drugs. He also reported he was afraid he would kill his sister or sisters. At first he did not accept hospitalization when it was offered to him, because he thought he wouldn't act on his feelings. Two days later, he returned requesting voluntary admission. He left the hospital against medical advice when his wife delivered M., Jr. in October of '90.

Okay. In March of '92, he was again hospitalized because of his feelings towards his wife, who was still using cocaine. He again left the hospital against medical advice, and he was diagnosed as being depressed. . . . In October 1992, Mr. D. threatened one of the employees at St. Elizabeths, he claims for disrespecting him on the day before.

As previously noted, see note 4, (supra) , the father also threatened or harassed the social workers with whom he came into contact.

D. The Expert Testimony.

Two court-appointed expert witnesses testified during the trial. Dr. Lanning Moldauer, a licensed psychologist, explained that he had been requested by counsel for the father to assist him "in finding those areas in which he might most favorably represent [M.D., Sr.] as a fit father for his son." Upon interviewing the father and extensively studying his social and medical records, Dr. Moldauer concluded that M.D., Sr. suffers from an antisocial personality disorder and that he would not be a fit father for ...

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