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In re Petition of T.J.L.

July 22, 2010

IN RE PETITION OF T.J.L. AND B.J.L. Z.W., APPELLANT


Appeals from the Superior Court of the District of Columbia (A-155-05, A-156-05) (Hon. Juliet J. McKenna, Trial Judge).

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

Argued April 30, 2008

Before RUIZ, Associate Judge, and TERRY and FARRELL, Senior Judges.*fn1

In this case concerning the adoption of infant twins, a boy (D.W.) and a girl (I.W.), the birth mother appeals from the trial court's decision to grant the adoption petition of T.J.L. and B.J.L. The mother argues that the trial court was without jurisdiction to waive her consent to the adoption and that it erred in granting one of the two competing petitions for adoption, rather than the other. We affirm the trial court's order.

I.

D.W. and I.W. ("the twins") were born on October 21, 2004, at a local hospital. Z.W. is their mother; the identity of their biological father is unknown.

Z.W. had very limited contact with the twins prior to her discharge from the hospital on October 24. They had been exposed to cocaine in utero, and the male twin, D.W., tested positive for the drug shortly after he was born. Consequently, the twins were not deemed to be medically ready for discharge from the hospital until November 10, when they were in fact discharged. During the seventeen-day period when the twins remained alone in the hospital, Z.W. did not visit them, but twice she made telephone calls to the hospital to ask about their condition. The twins were taken into the care of the Child and Family Services Agency ("CFSA") on November 9, and within a day or two thereafter CFSA placed them with foster parents T.J.L. and B.J.L.

An Intake and Investigations Worker from CFSA was assigned to investigate whether the twins were neglected children. On November 10, 2004, the District of Columbia filed a petition in the Superior Court alleging that the twins were neglected. After a hearing on the District's petition, the court issued an order on March 14, 2005, finding that the twins were neglected because they had been abandoned by Z.W., their mother. T.J.L. and B.J.L. filed a petition to adopt the twins on May 26, 2005.

Earlier, in September or October of 2004, P.J. and A.J. had learned that Z.W. was pregnant with twins. A.J., the husband of P.J., is a member of the twins' extended family (he is a distant cousin). After the twins were born, P.J. and A.J. contacted the CFSA social worker assigned to the twins' case and asked for information about adopting them. A few months later, on August 31, 2005, P.J. and A.J. filed a petition to adopt the twins. Before the hearing on the two competing adoption petitions, P.J. and A.J. visited with the twins on several occasions, and in October of 2005 the twins spent a week with Mr. and Mrs. J. at their home in South Carolina. P.J. and A.J. completed all the formal requirements for interstate placement under the Interstate Compact on the Placement of Children.

On September 8, 2005, an investigator with the CFSA Diligent Search Unit personally served Z.W. with notice of the adoption petitions and a court order to show cause why her consent to adoption should not be waived. Z.W. did not appear in court in connection with the adoption or neglect proceedings (though she was represented by counsel, who did appear), did not sign a consent to either of the two competing adoption petitions, and did nothing to indicate that she had a preference between those two petitions.

The identity of the twins' father was initially thought to be unknown. After the court appointed an attorney for the unknown father, he was served, via posting in the Domestic Relations Clerk's Office, with notice of the adoption petitions and an order to show cause why his consent should not be waived. Some time later, however, the court learned that Z.W. had named B.M., the father of one of her other children, as the father of the twins,*fn2 and it issued an order appointing an attorney to represent him "out of an abundance of caution," even though B.M. himself had "reportedly questioned the possibility of paternity."

A three-day hearing began on November 28, 2005, in which the court first considered the waivers of parental consent and then the competing adoption petitions. As of November 28, B.M. had not been served with notice of the adoption petitions and the order to show cause. Nevertheless, the court, with the consent of the parties present, decided to begin the hearing on the condition that B.M., if he could be served and thereafter could prove paternity, would then be allowed to ask the court to reopen the record on the question of whether his consent should be waived.*fn3 The trial court issued a notice of the adoption proceeding and an order to show cause to B.M. on November 28. Two days later, on November 30, the court issued a supplemental notice and order to show cause to B.M. However, B.M. was not served with any of these notices and orders before the conclusion of the hearing.

In considering whether the consent of the birth mother and the consent of the putative or unknown father should be waived, the court took judicial notice of its earlier order dated March 14, 2005, in which it had found "that the twins were neglected children pursuant to D.C. Code § 16-2301 (9)(A)(i) and (vii)." The court then found that there was clear and convincing evidence that the twins' father - whoever he might be - had abandoned them, since "[n]o one claiming to be the father of the twins or seeking to assert a parental relationship with [them] has ever made himself known to the Court, the assigned social worker, or the foster parent who has cared for the children since their birth." The court thus waived the consent of the putative father (B.M.), or the unknown father, under D.C. Code § 16-304 (d). In addition, the court found that Z.W., the mother, had abandoned the twins, noting that she had "demonstrated no interest in assuming a parental role in the twins' life or even in visiting with them," and further, that she had failed to appear at the hearing even though she had been served with formal notice. Accordingly, the court waived Z.W.'s consent to adoption under D.C. Code § 16-304 (d).

In the second portion of the bifurcated hearing, the court considered the two competing petitions to adopt the twins. After the hearing had ended and the parties had filed final written statements, the court issued a 26-page order on December 16, 2005, containing detailed findings of fact and conclusions of law.*fn4 It stated at the outset of its conclusions of law that both sets of petitioners were fit to adopt the twins under D.C. Code § 16-309 (b)(2), and that the twins were suitable for adoption within the meaning of D.C. Code § 16-309 (b)(1). The court then concluded, after considering the relevant statutory factors, that granting the adoption petition of T.J.L. and B.J.L. would be in the best interest of the twins.

Several weeks later, the court issued an order for alternative service and posting, in which it stated that the Diligent Search Unit of the CFSA had attempted unsuccessfully to serve B.M. personally with the earlier notice and order to show cause. The CFSA investigator filed an affidavit, informing the court that she had spoken to B.M. over the phone, but that he refused to provide an address for service. Given these representations of the investigator, the court concluded that B.M. was deliberately avoiding service and ordered that he be served by posting. The court ordered B.M. to appear at the next scheduled hearing or file an objection to the adoption petitions; if he failed to do so, the court said, any objection he might have would be waived. B.M. did not file any objection, nor did he appear at any subsequent hearing.

On May 21, 2007, the court issued final decrees of adoption for both twins. From those orders Z.W. filed timely notices of appeal; she is the only appellant before us. P.J. and A.J. did not file notices of appeal, but they have filed a statement in this court advising us that they "support" Z.W.'s appeals. Appointed counsel ...


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