Before Wagner, Chief Judge, and Terry and Reid, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeals from the Superior Court of the District of Columbia (Hon. Mary Ellen Abrecht, Trial Judge)
This termination of parental rights (TPR) case involves two young boys, each less than six years old, who have lived all but a few months of their short lives under the protection of the child welfare authorities. They were born to the same mother but have different fathers. Appellant C.M.J., the father of C.T., appeals from an order granting petitions filed by the children's guardian ad litem for the termination of parental rights. *fn1 Appellant contends that, in ruling on the petitions, the trial court did not apply the correct standard of proof and that, without clear and convincing evidence of the availability of an adoptive home, the TPR petitions should not have been granted. We reject both of these arguments. However, because the court failed to give sufficient consideration to the possibly limited duration of appellant's unfitness and to other potential adoptive resources, we vacate the TPR order in part, insofar as it terminates appellant's parental rights with respect to C.T. (appeal No. 96-FS-872), and remand the case for further proceedings. With respect to S.T. (appeal No. 96-FS-873), because appellant is not the child's father, he has no parental rights to terminate. He therefore does not have standing to challenge the TPR order. Accordingly, we dismiss the appeal in S.T.'s case, leaving the TPR order undisturbed as to him.
S.T. was born on April 12, 1993. Immediately after his birth, the Department of Human Services (DHS) became involved in his welfare because both S.T. and his mother, S.J.T., tested positive for illicit drugs. Representatives of DHS met with the mother and established a plan whereby she would keep custody of S.T. and attend a drug counseling program. Apparently, however, the mother did not adhere to her obligations under this plan.
In January 1994, S.J.T., who was then pregnant again, was the victim of an assault and was taken to Howard University Hospital for treatment. While still in the hospital, S.J.T. gave birth to C.T. on February 7, 1994. Once again, both mother and child tested positive for drugs. The mother was discharged on February 9, but the baby was still in uncertain health and had to remain in the hospital. He was pronounced medically ready for discharge on February 16; however, as late as February 22, neither S.J.T. nor C.M.J., the acknowledged father, had had any contact with the infant, despite their knowledge that he had been ready to leave the hospital almost a week earlier.
On March 7 DHS removed C.T. from the care of his mother and placed him and his older half-brother, S.T., together in a foster home. Thereafter DHS filed identical neglect petitions for each child, alleging (1) that they had been abandoned; (2) that they were "without proper parental care and control necessary for [their] physical, mental, and emotional health," and that their situation was not due to a lack of financial resources; and (3) that the parents were unable to care for the children because of "physical and mental incapacity," namely, drug abuse and incarceration. The petitions named appellant C.M.J. as the father of C.T. and declared that the father of S.T. was unknown. *fn2 They stated that at the time of the children's births, the mother and both children tested positive for drugs, including cocaine, barbiturates, PCP, and opiates. The petitions also alleged that S.J.T. and C.M.J. had acknowledged using cocaine and that the mother had admitted engaging in prostitution to obtain money to buy drugs.
In June 1994, Sina Baktash, a social worker, was assigned by DHS to the children's case. *fn3 By this time, S.T. and C.T. had been sent to St. Ann's Infant Home, to a foster home, back to St. Ann's, back to the same foster home, back to St. Ann's, and finally to the home of new foster parents, Mr. and Mrs. M. Mr. Baktash met with both S.J.T. and C.M.J. and developed a case plan that included drug counseling, parenting classes, and assistance in seeking employment and housing. A visitation schedule providing for two supervised visits per week at the premises of Lutheran Social Services was also established.
In December 1994 C.M.J. entered into a stipulation with DHS and representatives for the children which stated in part:
4. As of March 1994, [C.M.J.] was unable to provide [S.T. and C.T.] with a safe and appropriate home because he was struggling with an addiction to cocaine.
5. Based on the foregoing, respondents are neglected children within the meaning of D.C. Code § 16-2301 (9)(C) (1989 Repl.).
6. [C.M.J.] is now recovering, and the District intends to recommend that both boys go with [C.M.J.] as soon as he obtains a suitable residence and maintains a drug-free lifestyle. The District or one of its contract agencies will make all reasonable efforts to assist [C.M.J.] to locate and obtain such a home.
On December 5 the trial court accepted the stipulation and granted the neglect petitions with respect to both children.
On January 24, 1996, after almost two years of limited progress toward rehabilitation and reunification with the children, the guardian ad litem for S.T. and C.T. moved the court for an order terminating the parental rights of S.J.T. and C.M.J. See D.C. Code § 16-2354 (1997). After both parents filed oppositions to the motion, the court scheduled an evidentiary hearing.
C.M.J. testified at the hearing that he had a high school diploma and attended Washington Technical Institute (now part of the University of the District of Columbia) for two and a half years. He has never been arrested. After he left school, he worked as an assistant manager for a hotel in suburban Maryland and then as a district manager for a video rental chain. He also worked briefly for a large department store, and at the time of the hearing he was employed as a night-time janitor. Before S.J.T.'s current incarceration, C.M.J. had lived with her off and on for more than six years.
C.M.J. is divorced from his first and only wife. He has a son who lives in Texas with that son's mother, and two other children, aged ten and six at the time of the hearing, as well as an adult stepchild, all of whom live in the Washington area. He has no contact with his ten-year-old son, but maintains good relations with the others.
C.M.J. testified that he would like to have custody of S.T. and C.T., but if that is not possible, he would want a relative to adopt them so that he could remain part of their lives. He said that he believed he could get himself together but "wouldn't try to put a time frame on it." C.M.J. also told the court that he hoped to continue his relationship with S.J.T., ...