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In re Petition of S.M.

December 10, 2009


Appeals from the Superior Court of the District of Columbia (ADA70-07, NEG851-03, NEG852-03, TPR851-03, TPR852-03 & ADA69-07) (Hon. William M. Jackson, Trial Judge)

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

Argued September 29, 2009

Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge, and STEADMAN, Senior Judge.

Before us is an appeal from two adoption decrees that terminated the rights of a father with respect to his twin boys. Because, as the District itself now acknowledges, the adoption proceedings did not sufficiently take into account the preference applicable to a fit father, we vacate the adoption decrees and remand the case for further proceedings consistent with this opinion.

I. Factual Background*fn1

This case first came to court on a neglect complaint filed by the District of Columbia on December 22, 2003, against K.D. (mother)*fn2 and H.O. (father, appellant) with respect to their two biological children, Ka.D. and J.D., twin boys born in April of 2001. The complaint asserted both unsanitary conditions in the home and an allegation of sexual abuse by K.D.'s biological daughter, T.D., age 12, against H.O.*fn3

At the time, K.D. and H.O. were living with the boys and with S.D., age 7, another daughter of K.D.'s, in H.O.'s apartment. S.D. and T.D. are not related to H.O., and T.D. was not living with H.O., K.D., and the other children at the time of the alleged abuse.

On January 12, 2004, K.D. stipulated that the boys were neglected. Because K.D. had been admitted to the Family Treatment Court Program (FTCP) for drug abuse, the boys were placed there in order to remain with their mother, a decision to which H.O. understandably did not object. No ruling with respect to neglect chargeable to H.O. was ever made. The treatment provided to K.D. at the FTCP was unsuccessful, and later in 2004 she violated the terms of the FTCP. In November, the court revoked K.D.'s protective supervision and placed the boys into the custody of the Child Family Services Agency. At that time, custody with H.O. was not an option for the boys because H.O. was temporarily in prison following his arrest for sexual abuse. Upon removal from their mother at the end of September, the boys were placed with a foster parent, Ms. Wright, with whom they would reside for the next two years.

At a January 6, 2005, hearing, the court changed the boys' permanency goal from reunification with K.D. to reunification with H.O., saying it would wait to make further changes to the permanency goal pending the outcome of H.O.'s criminal case. In August, 2005, H.O. was convicted of two counts of misdemeanor sexual abuse and one count of simple assault, stemming from the charges leveled against him by T.D. At a September 13, 2005, permanency hearing, the permanency goal was changed to adoption. H.O. objected, through counsel, requesting custody for himself. The sexual abuse conviction was a key reason the court listed for changing the permanency goal from reunification with H.O.

Matters then proceeded along the adoption route. On November 1, 2005, the District filed petitions to terminate H.O.'s and K.D.'s parental rights, pursuant to D.C. Code § 16-2351 et. seq. The case was transferred to the present trial judge, who held a further permanency hearing on February 7, 2006. By that time, S.M. and R.S., the petitioners in the adoption case, had begun meeting with the boys pending receipt of a necessary license, but the boys remained in foster care. At this hearing, H.O. requested the permanency goal be changed back to reunification with him, a request the court denied. The District's termination motion was held in abeyance. As had been the case since the commencement of the proceedings in December of 2003 and was to continue until the adoption decree, H.O. faithfully and regularly visited with the boys during this period.

The boys moved into S.M. and R.S.'s home on December 22, 2006. The adoption petition*fn4 was formally filed on March 22, 2007. H.O. was served with notice of the adoption petition on April 20, 2007. He was instructed to show cause why his consent to the adoption was being withheld "contrary to the best interest of the child pursuant to D.C. Code § 16-304 (e)."

Hearings on the petition commenced on May 15, 2007, and continued over a number of separate days to the end of September. The court heard the testimony of H.O., various social workers, witnesses to the interactions of the boys with S.M. and R.S., and witnesses to the interactions of the boys with H.O. On November 9, 2007, the court issued its order waiving parental consent on the ground that the father was withholding consent against the best interests of the boys. On June 26, 2008, the court issued findings of fact and conclusions of law. A final decree of adoption was issued on July 15, 2008. H.O. timely appealed. H.O.'s brief asserts that he last saw the boys on August 16, 2008, little more than a year ago.

Subsequent to the entry of the adoption decree, this court heard oral arguments on H.O.'s appeal from his convictions, found nonharmless error in limitation on cross-examination of the complainant T.D., and reversed the convictions and remanded for a new trial. [O] v. United States, 964 A.2d 147 ...

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