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In re Petition of N.N.N.

December 31, 2009


Appeal from the Superior Court of the District of Columbia Family Court (ADA 276-04; ADA 277-04) (Hon. J. Michael Ryan, Reviewing Judge) (Magistrate Judge Noel T. Johnson).

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge

Argued October 30, 2008

Before RUIZ, FISHER, and BLACKBURNE-RIGSBY, Associate Judges.

In this adoption matter, D.H. (appellant, birth mother) makes three arguments on appeal: First, she contends that the trial court lacked personal jurisdiction over her in the adoption proceeding below. Second, she argues that Super. Ct. Adoption R. 4 and her due process rights were violated because she was not personally served with the summons for the adoption hearing - the hearing at which the magistrate judge waived her consent to N.N.N.'s adoption of the minor child De.H. Third, she contends that the trial court erred in finding that she abandoned her birth daughter. Appellant asks that this Court reverse the judgment of adoption and remand this case for a new hearing. We affirm.

For the reasons discussed more fully below, we conclude as follows: First, given that the trial court acquired personal jurisdiction over appellant in the proceeding that led to a determination that her children were neglected (the "neglect matter"), it retained personal jurisdiction for the duration of the process of attempted family reunification and permanency planning (the "rehabilitative process"), which culminated in the adoption proceeding. Second,though personal service is the preferred method of giving notice, we find no statutory or constitutional infirmity in the manner by which appellant was provided notice in this particular case. Specifically, we find that appellant was provided notice in accordance with Super. Ct. Adoption R. 4 (e). Furthermore, we find her due process argument unpersuasive because the notice afforded in this case - i.e., constructive notice by posting, following an "unusually substantial" effort to accomplish personal service - was constitutionally sufficient insofar as it was "reasonably calculated, under all the circumstances, to apprise [appellant] of the pendency of the action and afford [her] an opportunity to present [her] objections." Mullane v. Cent. Hanover Bank & Trust Co., 399 U.S. 306, 314 (1950). Third, we conclude that any error in the trial court's finding of abandonment was harmless because on appeal she challenges only one of the two independent bases supporting the trial court's determination to waive her consent to the adoption. Therefore, the unchallenged (and sufficient) alternative basis for the trial court's determination precludes appellant's request for relief.


A. Factual and Procedural Background

De.H. (adopted child) was born to appellant on November 24, 1999. Four months later, on March 22, 2000, the Child and Family Services Agency ("CFSA") received a report that De.H.'s four siblings were playing in an alley without shoes, appropriate clothing, or adult supervision. CFSA learned that appellant's residence was roach-infested, its carpet was covered in feces, its interior reeked of stale urine, and the refrigerator was broken, without any food inside. Responding to these conditions, CFSA transferred the children to their mother's sister, P.H., on August 25, 2000. On May 1, 2001, the trial court adjudicated De.H. and the other children as neglected. Two years later, De.H. was removed from P.H.'s home as a result of the deplorable living conditions there.

De.H. was 3 1/2 years old when she was placed in foster care with N.N.N. on May 21, 2003. After De.H. was placed with N.N.N., appellant made no effort to contact De.H. or provide for her financial support. Nor did appellant contact CFSA seeking reunification, and when N.N.N. initiated phone contact between De.H. and appellant, appellant often cut short the calls. The court suspended appellant's visitation rights in September 2004 because she did not show up for visits on a consistent basis. Appellant did not challenge the suspension of her visitation rights.

On August 6, 2004, N.N.N. filed a petition to adopt De.H. While De. H.'s father consented to the adoption, appellant apparently did not.*fn1 On August 23, 2004, the court issued a "Notice to Mother of Pending Adoption Proceeding and Order to Show Cause" and sent copies, inter alia, to appellant and her trial counsel. The August 23, 2004 Order directed appellant to appear on September 21, 2004 for a "show cause" hearing, pursuant to Super. Ct. Adoption R. 4 (a)(1), so the court could determine whether appellant's consent to the adoption should be waived. Appellant was not personally served with the August 23, 2004 Order and she failed to appear on September 21, 2004. The show cause hearing was rescheduled for December 17, 2004.

On September 27, 2004, N.N.N. filed a motion to provide notice to appellant by posting, which included an affidavit of Mr. Heslep - an investigator from Child and Family Services - that detailed his efforts to locate appellant and serve notice on her. The magistrate judge, finding that diligent efforts had been made to locate appellant, granted the motion on September 29, 2004 and notice was posted in the Domestic Relations Clerk's Office in accordance with Super. Ct. Adoption R. 4 (e)(3) on October 4, 2004. Appellant did not show up for the rescheduled show cause hearing on December 17, 2004 either, but her lawyer made an appearance on her behalf and moved to quash service by posting. Magistrate Judge Johnson denied appellant's motion and proceeded with the hearing. Counsel for appellant participated in the hearing and argued on the merits against waiving appellant's consent to the adoption. Thirteen days later, Magistrate Judge Johnson issued a written decision waiving appellant's consent to the adoption, finding that she abandoned De.H. and, alternatively, that the waiver was in De.H.'s best interest.

B. Magistrate Judge's Findings

The trial court decided to waive appellant's consent to the adoption because it found that her "conduct demonstrate[d] that she ha[d] no interest in parenting [De.H.] and ha[d] not taken the necessary steps to develop or maintain a parental relationship with [De.H.]" Indeed, CFSA's initial goal for De.H. was to place her temporarily with her aunt, P.H., while appellant took advantage of parenting classes, psychological services, and help obtaining public benefits. Appellant failed to undertake the parenting classes, however, and she did not secure a psychological evaluation until almost three years after CFSA removed De.H. from her care. Further, appellant failed to take full advantage of her supervised visits with De.H. Ultimately, De.H.'s permanency goal was changed to adoption once it was determined that she could neither be reunified with appellant nor placed with a suitable relative. When CFSA initially placed De.H. with N.N.N. in March 2003, De.H. was dirty and had ten cavities. She also lacked personal possessions and had a limited vocabulary.

N.N.N., an honorably discharged member of the United States armed forces, who was employed as a dental hygienist at the time of De.H.'s placement, acted immediately to address De.H.'s most pressing physical and developmental needs. N.N.N. had De.H.'s cavities treated,enrolled De.H. in preschool, provided De.H. with speech and individual therapy, and personally worked with De.H. to improve her speech and vocabulary on a daily basis. De.H.'s social workers corroborated N.N.N.'s efforts, testifying that N.N.N. provided De.H. with a stable homeand a needed emotional connection. Further, Kinder Care, De.H.'s pre-school and after-school-care provider, described De.H. as academically, emotionally, and socially well-adjusted, and noted that N.N.N. and De.H. were bonding well. N.N.N. also ensured that De.H. maintained contact with her siblings.

Although supervised visits between De.H. and appellant resumed three months after De.H.'s placement with N.N.N., there was little interaction between the two during these visits. N.N.N. initiated phone calls between De.H. and appellant, but appellant often cut the calls short. These conversations seldom lasted more than five minutes. The magistrate judge also found that appellant "voluntarily failed to ...

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