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In re D.A.

March 11, 2010

IN RE D.A.; E.L., APPELLANT.


Appeal from the Superior Court of the District of Columbia (TPR856-02) (Hon. Kaye K. Christian, Trial Judge) (Hon. Zinora Mitchell-Rankin, Motion Judge).

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

Argued January 27, 2010

Before THOMPSON and OBERLY, Associate Judges, and BELSON, Senior Judge.

The Family Court of the Superior Court ordered the termination of appellant E.L.'s parental rights in her son D.A. Seven months later, E.L. moved for reconsideration of that order. A magistrate judge of the Superior Court denied that motion. E.L. then moved for review of the order denying her motion for reconsideration, and that motion was in turn denied by a Superior Court judge. The District asserts that there is no authority for the Superior Court to consider such post-trial motions in a case involving termination of parental rights (TPR), but we need not decide whether such authority exists, as we would find no abuse of discretion in the rulings denying the motions on the grounds stated: that appellant had proffered no new evidence or changed circumstances and that the TPR did not, in any event, hinge upon the issues raised at the reconsideration and review stages. Accordingly, we affirm.

I.

D.A., a boy, was born in 1995. E.L. is his biological mother and K.A. is his maternal grandmother; a sister, C.L., was born in 2006 with serious health problems and died in 2008, some months after the termination of E.L.'s parental rights as to D.A.

E.L. has a history of drug abuse and has continued to use marijuana despite regular court-ordered drug tests. A mental health expert witness described E.L. as impulsive and poor at managing anger. D.A. has been diagnosed with numerous psychiatric disorders, manifest in violent and other ways and for which he takes medications and undergoes therapy. He is enrolled in special education.

In 2002, the Child and Family Services Agency (CFSA) determined that E.L. had beaten D.A. and filed a petition upon which he was adjudged neglected and committed to CFSA care. CFSA placed D.A. for the first time in January 2003 with the foster mother with whom he is now living and in whose care his problematic behavior has generally receded.

Initially, CFSA's goal for D.A. was reunification with his mother, E.L. Because E.L. failed to cooperate, in October 2003, CFSA changed the goal to guardianship with D.A.'s grandmother, K.A. In July 2006, he was placed with K.A., whereupon his behavior went "out of control." In late 2006, after D.A. threatened his grandmother with a knife and engaged in other serious misbehavior, he spent three weeks in inpatient psychiatric evaluation. A short time later, he was again placed with his foster mother. Following D.A.'s initial commitment, and until February 2007, E.L.'s visits with D.A. were sporadic. At that time, the court changed the permanency goal for D.A. to adoption. Subsequently, E.L.'s visits became more regular, but during these visits D.A. often spent the time on the computer rather than interacting with E.L. During this same time period, E.L. devoted much of her time to caring for the seriously ill C.L. The foster mother did not commit to adopting D.A., but another potential adoptive placement was identified.

The government moved in April 2007 for termination of E.L.'s parental rights. At the November 2007 hearing, a mental health expert witness testified that D.A. had bonds with both E.L. and his foster family and that remaining with E.L. was not in D.A.'s best interests because, among her other shortcomings, E.L. could not provide needed structure and attention and did not recognize the gravity of D.A.'s behavioral and emotional problems. In January 2008, after a three-day trial, Judge Kaye Christian entered findings of fact and conclusions of law, and ordered termination as being in D.A.'s best interests. The judge addressed each of the five required factors. She found weighing in favor of termination: E.L.'s inability to see to D.A.'s mental health, see D.C. Code § 16-2353 (b)(2) (2001); E.L.'s inability to provide a stable home, see § 16-2353 (b)(1); the obstacle that E.L.'s parental rights posed to any possible adoption, whether by D.A.'s foster mother or someone else, see id.; and E.L.'s continuing drug use, see § 16-2353 (b)(5). She found that the bond between D.A. and E.L., see § 16-2353 (b)(3), was outweighed by E.L.'s inability to provide a suitable environment. She also found that D.A.'s opinion regarding his best interests, see § 16-2353 (b)(4), was favorable to both sides but was undermined in any case by D.A.'s immaturity and lack of understanding.

In February 2008, E.L. appealed the TPR grant to this court, but E.L. has expressly waived her direct appeal of the TPR order and before this court challenges only the trial court's ruling on her post-trial motions.

In December 2008, Magistrate Judge Noel Johnson denied reconsideration, which E.L., claiming newly discovered evidence, had sought after initially filing the notice of appeal. As the legal basis for such a motion, E.L. cited first Super. Ct. Civ. R. 60 (b)(6), and then D.C. Code § 16-2324 (a)(3) (2005). The magistrate judge stated that neither provision was applicable. See Super. Ct. Neg. R. 1 (b), D.C. Code § 16-2324 (a)(3).*fn1 Consequently, he purported to exercise equitable powers on the theory that there was "no adequate remedy at law" and that substantively to apply § 16-2324 (a)(3) was "the nearest approximation of the legislature's intent." He first held that the death of C.L. was clearly not newly discovered evidence under § 16-2324 (a)(3), as it occurred subsequent to the trial and entry of the TPR order; that, even if it was, Judge Christian had relied on other significant factors in addition to the demands that C.L.'s care imposed on E.L.; and that, therefore, reconsideration was not warranted on this basis. He next held that Judge Christian had not relied on the potential adoption of D.A. by the foster mother and that the foster mother's alleged intention not to adopt D.A. also did not warrant reconsideration of the order for termination.*fn2

In July 2009, Judge Zinora Mitchell-Rankin denied E.L.'s motion for review of the magistrate judge's denial of reconsideration. See D.C. Fam. Ct. R. D (e)(1). Without deciding whether it was proper to apply § 16-2324 in a TPR case, Judge Mitchell-Rankin ruled that there was neither newly discovered evidence nor changed circumstances that would satisfy § 16-2324. Even if such evidence or circumstances existed, she added, relief was unwarranted because Judge Christian's decision did not depend on the issues identified and because E.L. had shown at trial neither that she was addressing her own mental health and drug problems, nor that she understood D.A.'s needs.

E.L. now appeals Judge Mitchell-Rankin's order refusing to overturn Magistrate Judge Johnson's ...


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