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In re A.B.

August 21, 2008


Appeal from the Superior Court of the District of Columbia (N882-05) (Hon. Laura A. Cordero, Trial Judge).

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

Argued June 24, 2008

Before RUIZ, Associate Judge, FARRELL, Associate Judge, Retired,*fn1 and KING, Senior Judge.

Appellant D.B., the biological mother of A.B., appeals from the trial court's order terminating her parental rights. D.B. presents two issues for review on appeal. First, she argues that the evidence presented did not support the trial court's order terminating her parental rights. Specifically, she contends that the trial judge erred in finding that D.B. was mentally ill and thus unable to care for A.B., and that the trial judge improperly took into account her own observations of D.B.'s behavior in court. D.B. also argues that the trial judge failed to give weighty consideration to D.B.'s choice of a custodian.*fn2 We affirm. I. Background

A.B. was born on October 16, 2003, and was removed from D.B.'s care on November 28, 2005, as a result of an investigation into unexplained bruises on her right cheek. A neglect petition was filed on December 1, 2005, and shortly thereafter the case was assigned to Judge Cordero. D.B. entered into a stipulation on January 5, 2006, acknowledging that A.B. was a neglected child as defined by D.C. Code § 16-2301 (9)(A)(i) (2008 Supp.). In the stipulation, the trial court set reunification as a goal and ordered D.B. to, among other things, attend parenting and anger management classes, undergo psychotherapy, and to take advantage of resources to which the Child and Family Services Agency (CFSA) referred her, including housing and job training. When A.B. was removed from D.B.'s care, J.J., A.B.'s maternal grandmother, was the only relative identified as a potential placement resource. J.J., however, was unable to care for A.B. because she was caring for D.B.'s teenage son and a sick relative.

Lisa Emmi, the first social worker assigned to work with A.B. and D.B., testified that D.B. initially completed parenting and anger management classes, a psychiatric evaluation, and a partial psychological evaluation. However, D.B.'s interest in the services was "ever changing." At times, D.B. expressed interest in participating, but at other times, she was unable to understand why CFSA was involved at all. Toward the end of Emmi's work with D.B., D.B. became "a little bit more defiant about participation in services," refused the services in which she was required to participate, and exhibited bizarre behavior, such as talking to herself and wearing inappropriate clothing to visits. Emmi also testified that D.B.'s visitation was reduced from two three-hour visits per week to two two-hour visits because three hours proved "to be a bit long for D.B." In mid-January 2006, contact was reduced to one one-hour visit per week after D.B. had missed several visits. Based on Emmi's observations and D.B.'s failure to participate in services, Emmi recommended the goal of reunification be abandoned in favor of adoption or guardianship.

During Emmi's work with D.B., D.B. underwent a psychological evaluation conducted by Dr. Seth King to determine her ability to parent and to identify any cognitive limitations or mental health issues. Dr. King diagnosed D.B. with depressive disorder and testified that her scores on cognitive tests were "consistent with the level that is associated with mild mental retardation." Dr. King further testified that D.B.'s level of cognitive functioning impaired her ability to care for A.B.

Marie Ellis, a family preservation specialist at the Columbia Heights / Shaw Collaborative, supervised visits between A.B. and D.B. for most of the time Emmi was assigned to the case. Ellis testified that, during a typical visit, D.B. would bring snacks for A.B. and was affectionate with her. Ellis also testified, however, that D.B. failed to discipline A.B. when she engaged in inappropriate or dangerous behavior. When Ellis attempted to discipline A.B. or curb any dangerous behavior, D.B. reacted negatively, and Ellis testified that D.B. "did not like the redirection" or "feel that her child needed to be disciplined."

A second social worker, Kara Falck, was assigned to work with A.B. and D.B. in July 2006, and she continued working with them until December 2006. Falck testified that early in a visit, D.B. and A.B. were affectionate with each other; however, after the first thirty minutes or so, D.B. would typically disengage from A.B. As the visits continued, Falck testified that she became concerned about D.B.'s behavior, including D.B. talking to herself and disengaging from A.B. at earlier stages during the visits. On September 15, 2006, the trial judge suspended D.B.'s visitation with A.B. because D.B. physically threatened Falck in A.B.'s presence during a visit on September 13. In her order, the trial judge required D.B. to begin weekly individual psychotherapy and to provide written verification that she had completed a mental health assessment through the Department of Mental Health (DMH). Although Falck learned that D.B. had been to a DMH core service agency, she was unable to verify that D.B. participated in any services. After the September 13 incident, Falck only saw D.B. when she stopped at CFSA two or three times to request public transportation tokens. Based on her interaction with D.B., Falck, like Emmi before her, recommended that the goal be changed to adoption, which the court later approved. On November 6, 2006, the Office of the Attorney General filed a motion for termination of parental rights (TPR).

D.B.'s and A.B's case was transferred to Linda Clausen, the third and final social worker, in mid-January 2007. She testified that the only face-to-face interaction with D.B. occurred when D.B. requested public transportation tokens. After that meeting, Clausen and another social worker contacted D.B. to encourage her to participate in court-ordered mental health services. Although D.B. never received mental health services from the providers recommended by CFSA, Clausen learned D.B. had been receiving medication management from another service provider but was not seeing a therapist. D.B.'s visits with A.B. resumed in June 2007, after Clausen provided the court with a copy of D.B.'s psychiatric intake assessment demonstrating that she had complied with the court's order to provide information to CFSA concerning her mental health needs and participation in mental health services.*fn3 Although D.B. would initially show affection towards A.B. during the three June visits that preceded the hearing on the TPR petition, which began on June 27, 2007, Clausen observed that D.B. would drift off and fail to properly supervise A.B. Clausen testified that D.B. "either [ ] doesn't give herself permission to be [a] mother, . . . or she just doesn't do it."

In January 2007, while Clausen was assigned to the case, M.J., a maternal cousin, attended a permanency hearing and identified himself as a placement resource. M.J. visited with A.B. approximately ten times after he identified himself as a placement resource, but missed between two and four visits. Although M.J. at times engaged A.B., Clausen testified that A.B. did not appear to be attached to M.J. and at times "wasn't so playful with him." M.J. applied for clearances, and Clausen conducted a phone interview and a home assessment. Clausen testified that M.J. lived in a three-bedroom apartment with his wife and their four children. M.J.'s two daughters shared a small bedroom, while his two sons shared a larger room. M.J. and Clausen discussed other housing options, including moving into a larger apartment, which M.J. understood to be a possibility based on a conversation with his landlord. Ultimately, however, Clausen concluded there was no room for another child, and she testified that M.J. never told her about the conversation he had with his landlord. In addition to housing issues, M.J. was unable to provide documentation of his salary, and Clausen learned that CFSA followed up on an incident in 2003 when M.J. passed out at an event downtown while he was with his nephew and children. Further, a background check revealed that M.J. had prior convictions for possession of marijuana and firearms in 2000 and 2001.

In contrast to Clausen's testimony, M.J. testified that he and A.B. had grown close as his visits progressed. M.J. also testified that he took leave from school to pursue the required clearances and licensing necessary to care for A.B.*fn4 He further testified that his income was approximately $1200 per month but varied because it was based on commissions; that he and his family received food stamps; and that they lived in subsidized housing. Although M.J. said he had a close relationship with A.B., he also testified that he did not take any steps to visit A.B. before identifying himself as a placement resource, and in his conversations with D.B., he never asked about A.B.

In her findings of fact and conclusions of law, the trial judge credited the testimony of all three social workers, Dr. King, and Ellis, the family preservation specialist. The trial judge also noted D.B.'s conduct during several other hearings over which the trial judge also presided. Specifically, she recalled that D.B. "repeatedly asked why her daughter was in the neglect system and why she had to get mental health services" and "was visibly agitated during ...

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