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In re A.W.K.

August 02, 2001

IN RE A.W.K., AN. K., APPELLANT


Before Wagner, Chief Judge, Reid, Associate Judge, and Belson, Senior Judge.

The opinion of the court was delivered by: Belson, Senior Judge

Appeals from the Superior Court of the District of Columbia (Hon. Arthur L. Burnett, Sr., Adoption Judge) (Hon. Ronna Lee Beck, Neglect Judge)

Argued January 11, 2000

These consolidated adoption and neglect cases raise several issues concerning the proceedings held to determine the status of the minor, A.W.K. (1) Did the trial court have jurisdiction over the adoption petition on the basis of the general equitable powers of the court or the role assumed by the Department of Human Services ("DHS") over the care, custody, or control of A.W.K. pursuant to orders of the trial court, even in the absence of a specific order committing A.W.K. to the custody of DHS? (2) Did the court proceed permissibly in bifurcating the adoption proceeding by conducting first a show cause hearing limited to determining whether the birth parents were withholding their consent to A.W.K.'s adoption contrary to the child's best interests, and further limiting that hearing to determining the fitness of the birth parents, without concurrent consideration of the suitability of the petitioners in the adoption proceeding? (3) In conducting such a limited show cause hearing, did the adoption judge abuse his discretion by refusing to direct petitioners to answer certain interrogatories about their backgrounds and financial status on the ground that they went beyond the scope of the show cause hearing? (4) Was there clear and convincing evidence to support the adoption judge's decision that the birth parents were withholding their consent to adoption contrary to A.W.K.'s best interests? (5) Did the neglect judge abuse her discretion in suspending visitation by the then-incarcerated birth parents after the adoption judge ruled that they were unreasonably withholding their consents? We conclude that there is no basis for reversal, and affirm the rulings of the trial court.

I.

A.W.K. was born addicted to cocaine on February 3, 1995, at D.C. General Hospital, to appellant An.K., who was on temporary release from incarceration for the birth. Subsequently, An.K. was returned to D.C. jail and released a few days later. On February 27, 1995, she was again arrested and incarcerated, this time on a charge of robbery of a senior citizen, for which she eventually received a sentence of from four to fifteen years. Even though appellant was released from jail for a brief time after the birth, she did not visit her child in the hospital. On February 28, 1995, A.W.K. was ready to be released from the hospital but appellant failed to make any arrangements for her child's care. The hospital therefore contacted DHS which in turn contacted the Office of Corporation Counsel and signed a petition for neglect in the Family Division of the Superior Court.

Shortly after the filing of the neglect petition, the court placed A.W.K. in the care of his maternal grandfather, Mr. DeB. After a few days, Mr. DeB. proved no longer able to care for the child, so he placed him with A.B., a young woman who was a family friend. The neglect court approved this arrangement and conditionally released A.W.K. to A.B. In accordance with a placement order issued in the neglect proceeding, A.B. was permitted to take the child to New York to visit A.B.'s parents, M.B. and J.E. Smith, *fn1 on weekends. A.B. had contacted her parents because she knew they were interested in adopting a child. At the same time the court ordered DHS to supervise and coordinate visits by A.W.K. with An.K. and W.D., A.W.K.'s biological father, both of whom were incarcerated. A social worker from DHS conducted all visits, and maintained frequent contact with the birth parents. DHS had the authority to modify the duration of any visitation based on the child's needs.

At the time of A.W.K.'s conception, An.K. was using cocaine and heroin, but she began to substitute methadone for heroin when she learned of her pregnancy. An.K. has an extensive history of drug abuse and crime, including eleven convictions of sexual solicitation, solicitation for lewd and immoral purposes and indecent acts, six convictions of misdemeanor Bail Reform Act violations, and one conviction of robbery of a senior citizen. An.K. had given birth to four other children since she was sixteen, but had failed to parent any of them effectively for a significant period of time. At the time of the proceedings, she did not know the whereabouts of two of her children. While incarcerated, An.K. took some positive steps to improve herself, successfully completing a communication and conflict resolution program and a parenting and literacy skills program offered by the D.C. Department of Corrections, and obtaining a general equivalency diploma. During An.K.'s pregnancy, W.D. demonstrated little concern for An.K. or their unborn child, and it was not until late 1995 or early 1996 when DHS met with W.D. to discuss a paternity test that he showed any interest in the child. Like An.K., W.D. was deeply involved in crime, having spent more than twenty-five years of his life in prison.

On September 26, 1995, An.K. stipulated that she was unable to care for the child due to her incarceration and prior drug abuse problem, and the court found A.W.K. neglected. Subsequently, on November 7, 1995, DHS submitted a report to the neglect court, making a recommendation as to A.W.K.'s care and placement. At a disposition hearing on December 12, 1995, all parties, including the birth parents, Mr. and Mrs. Smith, the guardian ad litem for A.W.K., and A.B. were present. The court ordered that A.B. have custody of the child and made provision for regular visitations to Mr. and Mrs. Smith in New York. DHS was ordered to arrange for a report to the court concerning the condition of the Smith home as foster placement for the child pending an investigation DHS was to arrange with the New York State Interstate Compact on the Placement of Children ("ICPC"). Before A.W.K. could reside with the Smiths as a foster child, approval had to be obtained from the New York ICPC office.

In the early part of May 1995, when A.W.K. was three months old, Mrs. Smith had moved to Maryland to live with her daughter, A.B., on a full time basis in order to care for A.W.K. while waiting for the ICPC process to be completed. Mrs. Smith's presence was necessary because A.B. worked during the day time and was not home to care for the child. Mr. Smith remained in New York because he had to work, but each weekend he traveled to Maryland to be with his wife and A.W.K. The New York Human Resources Administration's ICPC approval was obtained and in its order upon intermediate review on February 6, 1996, the court transferred A.W.K. to private placement with the Smiths in New York. A.W.K. has resided with the Smiths since that date. From that time until October of 1997, the Smiths cooperated in bringing A.W.K. to the Washington area for visits with his incarcerated parents.

Shortly after the court found A.W.K. neglected, on November 17, 1995, the Smiths filed a petition to adopt A.W.K. It alleged that the Superior Court had jurisdiction under D.C. Code § 16-301 (b)(3) (1997) as the child was under the legal care, custody, or control of DHS. The adoption proceedings went forward concurrently with the neglect proceedings. The two matters were consolidated only for the purpose of providing An.K. and W.D. with appointed counsel for the adoption matter as well as the neglect matter. Judge Burnett held a show cause hearing in the adoption matter in September 1997, to determine whether the biological parents' consent to the adoption was being withheld contrary to the best interests of the child. On October 1, 1997, Judge Burnett issued an oral order waiving the biological parents' respective consents to the adoption, finding that they were withholding consent contrary to the best interests of A.W.K. On October 5, 1997, Judge Beck, aware of Judge Burnett's ruling, suspended all visitation rights of the biological parents in the neglect proceeding. Subsequently Judge Burnett entered an interlocutory decree of adoption, which was followed by a final decree. Both birth parents submitted timely notices of appeal. *fn2

II.

For the first time on appeal, appellant An.K. argues that the Superior Court lacked jurisdiction over the adoption proceeding. D.C. Code § 16-301 (b) provides:

[J]urisdiction [to hear and determine petitions and decrees of adoption] shall be conferred when any of the following circumstances exist:

(1) petitioner is a legal resident of the District of Columbia;

(2) petitioner has actually resided in the District for at least one year next preceding the filing of the petition; or

(3) the child to be adopted is in the legal care, custody, or control of the Mayor or a child-placing agency licensed under the laws of the District.

Petitioners do not meet the residence requirements, and therefore the only possible statutory basis for jurisdiction was that A.W.K. was "in the legal care, custody, control of the Mayor or a child-placing agency licensed under the laws of the District." *fn3 Both the District of Columbia and appellee petitioners for adoption argue that the court had jurisdiction over the adoption proceeding, but they offer entirely different arguments in support of that conclusion.

The District would acknowledge that "the technical jurisdictional requirement[s] of ยง 16-301 (b) were not met here," but argues that the Superior Court derived jurisdiction from its general equitable powers. The District states that DHS "never had actual legal custody" of A.W.K. It argues that it would be senseless for the District of Columbia to deny a forum to the adoptive petitioners here after the Superior Court has adjudicated ...


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