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In re W.E.T.

March 14, 2002

IN RE W.E.T. AND I.J.T. D.B., APPELLANT
IN RE W.E.T. AND I.J.T., APPELLANTS



Appeals from the Superior Court of the District of Columbia (A-86-98) (Hon. Arthur L. Burnett, Trial Judge)

Before Wagner, Chief Judge, and Terry and Glickman, Associate Judges.

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

Argued September 25, 2001

In this adoption case, D.B., the natural mother of the child K.D.B., seeks reversal of the trial court's order waiving her consent to the adoption. See D.C. Code § 16-304 (e) (2001). The adoptive parents, W.E.T. and I.J.T., cross-appeal from the trial court's order vacating and re-entering the final adoption decree to enable D.B. to file her notice of appeal, which would otherwise have been untimely. We affirm both orders.

I.

The Department of Human Services ("DHS") removed K.D.B. from D.B.'s care when D.B. was arrested for panhandling while K.D.B. was with her. K.D.B. was born in April 1992; at the time of his mother's arrest in August 1993, he was sixteen months old. After D.B.'s arrest, DHS placed K.D.B. at St. Ann's Infant Home. Thereafter St. Ann's contacted I.J.T., D.B.'s aunt (K.D.B.'s great-aunt), and asked her if she would take care of K.D.B. I.J.T. agreed to do so and, together with her husband, W.E.T., has cared for K.D.B. in her home since January 1994. *fn1

During the pendency of the neglect case that arose out of D.B.'s failure to care for her child, D.B. did not attend some of the hearings because of an outstanding warrant for her arrest. Later, D.B. entered into a "service agreement" with her social worker in which she agreed to work toward completing her high school diploma, to participate in mental health therapy and physical therapy, and to undergo drug treatment. However, at the time of the hearing below, D.B. had only partially complied with the terms of the agreement. She was still working on her high school diploma, but she had participated in mental health therapy only until her therapist retired, and had not begun any physical therapy. When asked whether she had "also agreed to participate in drug rehabilitation," she answered, "I don't recall that." Although D.B. did seek drug treatment at the House of Ruth, a private social service agency for women and children, she was removed from the program (according to her testimony) because of her "attitude" after she became involved in a dispute with a staff member.

During the hearing, D.B. admitted that she had had a long history of drug abuse since she was a teenager. PCP was her drug of choice, but she also used crack cocaine. D.B. also had a history of criminal conduct. In addition to her panhandling arrest, she had been arrested on other occasions for disorderly conduct and grand larceny. At the time of the hearing, she was serving a sentence of two and a half years in Virginia for the latter offense. The evidence also showed that D.B. had maintained a transient lifestyle from time to time in the past. She had lived in her mother's home until her mother's death; thereafter she had sometimes resided either on the street or in a shelter. At the hearing D.B. testified that she had an apartment on L Street, S.W., even though she was incarcerated, and that her grandmother was paying the rent for that apartment.

At the time of the hearing, D.B. had not visited K.D.B. for more than two years. Before that, a court order had authorized her to visit K.D.B. at the home of W.E.T. and I.J.T. on alternate Sunday afternoons. D.B. came to see K.D.B. at these appointed times for a few months, but then her visits became irregular, and around the middle of 1996 they stopped altogether.

When K.D.B. first came to live with W.E.T. and I.J.T., he was small for his age, suffering from asthma, and not verbalizing at a level commensurate with his years. At the hearing, however, I.J.T. testified that he was now an energetic, healthy six-year-old who addressed her and her husband W.E.T. as "Mommy" and "Daddy." According to the evidence, he has performed well in school ("he is above average in all of [his] academic activities") and is involved in a variety of family activities with them, including reading, gardening, and participating in the children's choir at their church. K.D.B. learned to read in kindergarten and has started to read to his younger brother, K.B. *fn2 He has also learned to use a computer, and I.J.T. and W.E.T. have obtained "[computer] programs to help him enhance his school activity." I.J.T. said that she and her husband intend to "provide him with a stable home [and] a good education. We certainly have plans that he would go on to college."

In February 1998 W.E.T. and I.J.T. filed a petition to adopt K.D.B. D.B. opposed the petition. On August 22, 1998, after a two-day hearing, the trial court issued a detailed "Memorandum of Findings of Fact, Conclusions of Law and Order" in which, among other things, the court waived the consent of D.B. to the adoption. *fn3 An attachment to the order stated that copies had been mailed to various interested parties, specifically including "counsel for the mother" by name. On October 2, 1998, a Final Decree of Adoption was filed, and on October 6 it was entered on the docket.

On September 7, 1999, nearly one year later, D.B. moved to set aside the Final Decree and to reissue it in order to permit a timely appeal. As grounds for the motion, counsel for D.B. claimed that he had never received notice of the decree. *fn4 The trial court granted the motion in an order filed September 15, citing as reasons both counsel's representation that he had received no notice of the Final Decree and the fact that the motion was filed within one year of the decree, so that the decree could therefore "be vacated for good cause." A "Reissued Final Decree of Adoption" was filed and entered on the docket the same day.

D.B. filed a timely notice of appeal from the reissued Final Decree. *fn5 W.E.T. and I.J.T. noted a timely cross-appeal from the order granting D.B.'s ...


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