Appeals from the Superior Court of the District of Columbia (DR3169-98) (Hon. Mary Ellen Abrecht, Trial Judge).
The opinion of the court was delivered by: Wagner, Senior Judge
Before FARRELL, Associate Judge, and WAGNER,*fn2 and BELSON, Senior Judges.
Appellants, W.D. and B.T., appeal from an order of the trial court granting permanent custody of their minor son, K.T., to unrelated third parties, appellees, C.S.M. and E.T.S., a married couple. Appellees instituted the action by filing a complaint for custody in a domestic relations proceeding asserting as the basis for the court's jurisdiction D.C. Code §§ 11-1101 (4) (2001)*fn3 (providing the Family Division of Superior Court with exclusive jurisdiction of actions seeking custody of minor children) and 16-4503 (specifying grounds for asserting jurisdiction in child custody cases). Guided primarily by statutory factors enumerated in D.C. Code §§ 16-911 (a), -914 and D.C. Code § 16-2353 (b) (termination of parental rights), the trial court granted appellees, who were serving as third party custodians in an ongoing neglect proceeding, permanent custody of the child in this domestic relations case (DR-3169-98c). Preliminarily, we conclude that the trial court exceeded its authority in awarding permanent custody of the child to unrelated third parties in the domestic relations case. Therefore, we vacate its findings and order and remand the case for further proceedings under the applicable neglect statutes and, if appropriate, the subsequently enacted Foster Children's Guardianship Act, D.C. Code §§ 16-2381 et seq. (2006 Supp.) (providing for creation of permanent guardianships). In light of our disposition, we need not address the remaining issues raised on appeal.
K.T. was born to B.T. on December 15, 1997. On December 20, 1997, the Corporation Counsel filed a neglect petition alleging that the mother had attempted to remove the child from the hospital on two occasions against medical advice, that the child had tested positive for cocaine at birth, and that it was believed that B.T. uses cocaine. The petition named as the father, C.T., and stated that he was the primary caregiver for one of B.T.'s other children and was willing and able to care for K.T. The trial court ordered that the child reside with C.T. pendente lite. In March 1998, the guardian ad litem for the child filed a motion to change the child's placement on the grounds that C.T. had failed to provide appropriate care for the child and requested a hearing. A hearing was held on March 9, 1998, and it was determined that C.T. was not the father. W.D. was in court on that date, and he stated that if paternity tests showed that he was K.T.'s father, he wanted custody of the child. The court ordered paternity tests, and it placed the child pendente lite with appellees, C.S.M. and E.T.S. C.S.M. had met B.T. while his law partner represented her in a domestic violence case, and they developed a personal relationship that continued after the firm ceased to represent her. C.S.M. first met the child in January 1998. At the time, C.S.M. and E.T.S. were interested in adopting a baby.
On May 5, 1998, paternity tests confirmed that W.D. was K.T's father. C.S.M. took K.T. to W.D.'s residence so that he could visit with the child on May 11, 1998. On May 22, 1998, the guardian ad litem requested a continuance of the scheduled trial date, which was apparently reset until October 14, 1998. On October 19, 1998, W.D. filed a motion for a home study so that the child could be placed with him, or alternatively for an evaluation of a relative's home. In that motion, he asserted that he had previously requested the study in June 1998. On November 9, 1998, the court entered an order for a home study to determine the propriety of placement of the child with W.D.
On December 4, 1998, the District moved to amend the neglect petition to include an allegation that W.D. had abandoned the child. See D.C. Code § 16-2301 (9)(A). On December 9, 1998, C.S.M. and E.T.S. notified the court in the neglect proceeding that they had filed a verified complaint for permanent custody of K.T. in the Domestic Relations Branch of the Family Division on October 14, 1998 in Case No. 98-DR-33169-C.
Following the neglect trial, the trial court (Judge Diaz) found that K.T. is "a neglected child pursuant to D.C. Code § 16-2301 (9)(C) in that the mother is unable to discharge her parental responsibilities due to her incarceration." The court further found that the government had failed to meet its burden of proving that W.D. had abandoned the child. The court explained in that regard that
[t]he evidence shows that subsequent to being notified of his paternity on May 5, 1998, [W.D.] expressed a willingness to have visitation with [K.T.], and even made effort towards obtaining physical custody of his son. Additionally, [W.D.] has consistently reported to the instant neglect and abuse proceedings, further reinforcing the perception that he harbors a genuine interest in maintaining a parental relationship with respondent.
C.S.M. and E.T.S. requested that the court reconsider its decision finding that the government had failed to prove abandonment, or alternatively, that it vacate that portion of its decision. The court denied the motion for reconsideration. The court entered a formal order granting W.D. supervised visits with the child.
Subsequently, a trial was held on the civil complaint for permanent custody that had been filed by C.S.M. and E.T.S. against the child's parents in October 1998. At the conclusions of the trial, the court (Judge Mary Ellen Abrecht) found that the best interests of the child required granting the complaint for permanent custody. The court specifically found that B.T. is not fit to parent the child, but it declined to address W.D.'s fitness to parent the child. However, the court found that W.D. had not grasped his opportunity interest to parent the child. In deciding the case, the court relied upon the statutory factors set forth in D.C. Code §§ 16-911 (a), -914 (custody incidental to divorce actions) and D.C. Code § 16-2353 (b) (termination of parental rights).*fn4
Although the domestic relations case filed by appellants was consolidated with the neglect proceeding, the trial court's award of permanent custody to appellees was based upon its apparent view of its authority to act under D.C. Code §§ 11-1101 and 16-911, -914.*fn5 We reach this conclusion for the following reasons. First, the order was entered in response to appellees' complaint for custody which they candidly characterize as a "civil, private-party, child custody case that had been filed by appellees in the DR branch pursuant to D.C. Code §§ 11-1101 (4), 16-301 (b)(3), and 16-4503." Second, the trial court's order granting appellees' permanent custody specifies that it made its findings of fact and conclusions of law in light of the relevant facts set forth in "D.C. Code § 16-911 (a)[(5)], -914 dealing with custody. . . ."*fn6 Third, the neglect case was consolidated with the domestic relations case only after completion of the trial on the neglect complaint, and the entry of a disposition order providing for private placement with appellees for an indeterminate period not to exceed two years, specified visitation rights for the father and a date for an intermediate review. Fourth, the purpose of consolidation was not to address the issues in the context of a neglect proceeding, but rather, as appellees concede, to provide for the child's parents the benefit of free legal services from the attorneys who ...