Appeal from the Superior Court of the District of Columbia (ADA249-06) (Hon. Cheryl M. Long, Reviewing Judge) (Hon. Carol Ann Dalton, Magistrate Judge).
The opinion of the court was delivered by: Fisher, Associate Judge
Before REID, GLICKMAN, and FISHER, Associate Judges.
D.F., the biological father of D.T., appeals from a final decree of the Superior Court allowing his daughter to be adopted over his objection. He asserts that he did not have a meaningful opportunity to participate in the show cause hearing and that he was denied the effective assistance of counsel. We remand the record for further inquiry concerning the performance of his court-appointed counsel.
I. The Factual and Procedural Background
D.T. was born on October 10, 1995, and remained in the care of her mother (L.B.) until 2001, when she was removed as a result of neglect. In early 2002, D.F. purportedly learned of D.T.'s birth for the first time when he was asked to undergo a paternity test. D.F. consented to the test, which established his paternity. Acknowledging that he was D.T's father, D.F. visited her on a handful of occasions until October 2002, when he was arrested. He was later convicted of conspiring to sell drugs and sentenced to prison.
The original plan to reunify D.T. with her mother was changed to a permanency goal of adoption in July 2002. D.F. met with D.T.'s social worker in 2002 and suggested two of his sisters as possible caretakers for D.T. The social worker referred D.F.'s sisters to the agency's licensing branch so that they could become certified foster-care providers. D.F. also requested that G.A., his "sister-in-law,"*fn1 who was a licensed foster care provider, be considered as another placement alternative. The social worker visited G.A.'s home in May and August 2002 and determined that there was not enough room for D.T. D.F.'s fiancee (B.S.) also expressed interest in caring for D.T.
On March 1, 2006, D.T. was placed in the home of R.E.S., who filed a petition to adopt her on September 29, 2006.D.F. was served with notice of the adoption proceedings on December 11, 2006. Two weeks later, he wrote to the Clerk of the Superior Court, opposing the adoption and expressing his view that "I can not give consent for my daughter to be adopted because she will be happier with us." A supplemental notice was served on D.F. on January 10, 2007. In February 2007, Magistrate Judge Dalton received a letter from D.F. requesting that his family be allowed to "appear in court on [his] behalf . . . ." He also asserted that his sister-in-law, G.A., and his fiancee, B.S., "both are qualified to be a foster parent thru [sic] classes and [G.A.] has been a foster parent for about ten years."
The attorney who represented appellant at the show cause hearing was first appointed in the neglect proceedings. In the joint pre-trial statement filed by the parties on February 23, 2007, appellant's counsel stated that he intended to call "family members who had indicated an interest in caring for the child." Counsel later represented that he had not at that time been able to consult with appellant about which witnesses he wanted to call. The trial court granted counsel's March 14, 2007, motion to amend the joint pre-trial statement to identify specific witnesses, including appellant, M.F. (one of appellant's sisters), B.S., and G.A.
On the morning of the July 20, 2007, trial, appellant's counsel moved for a short continuance, stating that he had "just found information where [appellant] is." Magistrate Judge Dalton denied counsel's request, and the trial proceeded. Counsel did not call any witnesses on appellant's behalf.
In her Findings of Fact, Conclusions of Law, and Order, dated August 21, 2007, Magistrate Judge Dalton concluded that D.F.'s consent to R.E.S.'s adoption of D.T. should be waived. She found that "[t]he evidence is beyond clear and convincing" that D.F. had abandoned D.T. by failing to contribute to her support and failing to visit or contact D.T. "by letter, telephone, or through the social worker." The court also found that "[n]either parent has appeared in person or telephonically," and D.F.'s "fail[ure] to appear at the Show Cause hearing" was "additional independent evidence" of his abandonment of D.T. In light of the relevant statutory factors and the strong relationship D.T. had established with R.E.S., Magistrate Judge Dalton also found that D.F. was "withholding [his] consent to R.E.S.'s petition for adoption contrary to the best interest of the child."
Appellant D.F. filed a pro se motion to vacate that ruling, arguing, among other things, "that my Court Appointed Attorney has been of no assistance . . . [and] has not represented my best interest. . . ." Finding "that the father was properly represented" by counsel, Magistrate Judge Dalton denied the motion to vacate on October 1, 2007. On November 17, 2007, the court entered a final decree granting R.E.S.'s petition for adoption. Appellant's counsel filed a Motion for Review and Appeal of the Magistrate Judge's Order of Adoption on December 14, 2007.
Before denying D.F's motion for review, Judge Long conducted a careful and extensive analysis of the issues. She held that Magistrate Judge Dalton erred by "imply[ing] that [appellant's] physical absence from the trial proceeding was a voluntary expression of disinterest" but determined that "this reference to the father's failure to appear for trial should not be magnified into reversible error" because the other factors considered were sufficient to find that D.F. had abandoned D.T. Judge Long concluded "as a matter of law that the Magistrate Judge acted within her discretion as the finder of fact in determining that  D.F. had abandoned" his daughter. Judge Long also observed that "[t]he 'best interests' analysis by itself would be a sufficient basis for waiving the father's consent to the adoption" and concluded that D.F. had "challenge[d] only the alternative ground for waiver of consent, i.e. the finding that D.F. had 'abandoned' his daughter." This appeal followed.
II. Appellant Was Entitled to Participate in the Hearing
The District of Columbia concedes that, as D.T.'s biological parent, D.F. had a constitutional right "to meaningful participation in a proceeding that terminates his parental rights." See Armstrong v. Manzo, 380 U.S. 545, 552 (1965) ("A fundamental requirement of due process is 'the opportunity to be heard' . . . which must be granted at a meaningful time and in a meaningful manner.") (citation omitted). Although this right was not extinguished by his incarceration, appellant had no right to appear in person. In re Adoption/Guardianship No. 6Z980001, 748 A.2d 1020, 1023 & n.2 (Md. Ct. Spec. App. 2000) (collecting cases). Courts generally agree that "'such prisoners do not have the right to be brought into the state for the termination hearing, as long as the parent is represented by counsel and provided with alternative means of participating in the hearing.'" Id. (quoting Philip M. Genty, Procedural Due Process Rights of Incarcerated Parents in Termination of Parental Rights Proceedings: A Fifty State Analysis, 30 J. FAM. L. 757, 775-76 (1991-92)). These "alternative means" may include participation by telephone, or by reviewing a transcript of the hearing and providing rebuttal testimony, sometimes by deposition. See generally In re Baby K., 722 A.2d 470, 473-75 (N.H. 1998); Division of Youth & Family Services v. M.Y.J.P., 823 A.2d 817, 841-43 (N.J. Super. Ct. App. Div. 2003).
Counsel apparently planned to have his client participate by telephone, and there is every reason to believe that would have been allowed. Magistrate Judge Dalton explained that she "has presided over many adoption trials and has always permitted parties, especially incarcerated parties, to participate by telephone when requested to do so." In this case, however, she "did not receive a [timely] request from counsel to have the biological father participate at trial by ...