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In re Petition of P.S.

December 11, 2001

IN RE PETITION OF P.S. & F.E.S.; S.L.C., APPELLANT
IN RE PETITION OF P.S. & F.E.S.; A.C., APPELLANT



Appeals from the Superior Court of the District of Columbia Family Division (A-298-94 & TPR 117-90) (Hon. Arthur L. Burnett, Sr., Trial Judge) (Hon. Zinora Mitchell-Rankin, Trial Judge)

Before Steadman, Reid and Washington, Associate Judges.

The opinion of the court was delivered by: Washington, Associate Judge

Argued October 18, 2001

This case arises from the consolidation of a motion for termination of parental rights and an adoption proceeding involving a special needs child, A.S.C. Judge Arthur L. Burnett, Sr. held a show cause hearing pursuant to D.C. Code § 16-304 (e) (2001) to determine if appellants, the birth parents (S.L.C., the mother, and A.C., the father), were withholding their consents to the adoption contrary to the best interests of the child. Following the show cause hearing, the trial court issued its October 1998 order, concluding that the adoption should proceed despite the objections of the birth parents because they were withholding their consents contrary to the best interests of the child; that the extant motion for termination of parental rights was now dismissed as moot; and that the Department of Human Services (DHS) should proceed with the required investigations in the adoption case. On August 12, 1999, Judge Zinora Mitchell-Rankin entered a Final Decree of Adoption.

On appeal, appellants argue that the trial court abused its discretion in finding that they withheld their consents to the adoption contrary to the best interests of the child. In addition, they argue that the Final Decree of Adoption should be reversed based on several grounds: during the show cause hearing, they were denied their constitutional right to confront and cross-examine the prospective adoptive parents, appellees F.E.S. *fn2 and P.S., or to present evidence challenging their fitness; there is no evidence on the record of bonding between F.E.S. and the child; there is no evidence of the suitability of F.E.S.'s home after her marriage to P.S.; and that there is no showing that emotional harm would result if the child were to be removed. We affirm.

I.

When born on April 5, 1989 to S.L.C. (birth mother) and A.C. (birth father), A.S.C. was a high risk, premature baby who weighed two pounds and eleven ounces. At the time of the child's birth, S.L.C. acknowledged that she used heroin and cocaine, and that she participated in a methadone treatment program. The child was born with and continues to suffer from respiratory and feeding problems, which required her continued hospitalization from the time of her birth until 1993.

Soon after A.S.C.'s birth, S.L.C. relocated to New York City to join A.C. When both were contacted in September 1989 by A.S.C.'s social worker at Howard University Hospital (Hospital) about the need for parental consent to perform surgery on the child, they withheld consent until December 1989. S.L.C. was known to be in the District of Columbia in November 1989, but she neither visited A.S.C. nor contacted the Hospital. After the same social worker informed S.L.C. of the need for her to visit her daughter at least twice per week, S.L.C. made only one visit. For the next eight months, neither birth parent visited their daughter nor contacted the Hospital. A neglect petition was filed against the parents in February 1990, and the trial court concluded that the child had been abandoned by her birth parents due to their failure to promptly provide medical consent and their failure to make reasonable efforts to visit with and care for the child.

1. The First Termination of Parental Rights Proceeding

The first termination of parental rights proceeding took place in November 1991. By that juncture, the birth parents had little or no contact with the child. Appellee F.E.S., formerly a recreational therapist at the Hospital for Sick Children (HSC), testified at that proceeding and indicated that she had undergone training in order to take the child out on day passes; that caring for the child was very complicated at first, but less so as she gained experience; that the equipment she was required to take home for the child's care included a five-foot oxygen tank, a portable oxygen tank, a feeding pump, medications, and various baby items; and that at that juncture, appellee did not feel she was in a position to adopt because she was single and worked full-time at a new job. The birth mother testified that she lived in Brooklyn, New York with the birth father and two of their eight children, aged 7 and 11; admitted to a drug problem when the child was born, and was thus neither emotionally nor physically prepared to care for her; and that at the time of the proceeding, she was in a methadone maintenance program in New York six days a week and was not using other drugs. During the proceeding, there was also testimony by a DHS caseworker indicating that although S.L.C. indicated she wanted to care for her daughter, she did not follow up. Although the caseworker testified as to how the child was presently thriving, she had not undertaken a home study of the birth mother's home in New York. The trial court concluded that the termination of parental rights would be in the best interests of A.S.C.

2. The Appeal of the First Termination of Parental Rights Order

After the trial court decided in favor of terminating parental rights in the best interests of the child, the birth parents appealed, arguing that the decision was not supported by clear and convincing evidence, that there was no evidence of parental unfitness, and that there were no reasonable prospects for the child's adoption. This court agreed with appellants and reversed and remanded, finding that termination of parental rights was premature although "the case is a close one." In re A.S.C., 671 A.2d 942, 944 (D.C. 1996). Key to this court's finding that such a drastic measure was premature was the fact that DHS had not undertaken a home study of the birth parent's residence in New York; the parents testified to not having used drugs since April 1991; both parents were participating in a methadone maintenance program; there were social workers in New York that could assist them; they appeared to have a home with ample space; and the child remained in institutional care with no prospects for adoption. However, we qualified our conclusion by stating that "[t]he circumstances might be quite different if the child's prospects for adoption were greater or a prospective placement had been shown," id. at 951, and we left open the possibility that a second termination of parental rights motion could be filed in the event of "a material change in circumstances affecting the child's best interests." Id. at 951 n.15.

3. The Petition for Adoption and the Second Termination of Parental Rights Motion

During the course of the first appeal, appellee F.E.S. filed a petition for adoption and, in January 1997, the guardian ad litem filed a second motion for termination of parental rights. These two cases were subsequently consolidated for trial. In November 1997, the trial court entered an Order to Show Cause pursuant to D.C. Code § 16-304 (e) as to why the birth parents' consents to the adoption should not be waived based on their abandonment of the child and their failure to provide her with financial support. *fn3 The trial court decided that the show cause hearing would serve as an alternative hearing approach to this case since a termination of parental rights ...


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