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In re C.A.B.

September 23, 2010

IN RE C.A.B. & H.N.B.; L.M.F., APPELLANT.


Appeal from the Superior Court of the District of Columbia (ADA239-06 & ADA280-06) (Hon. Laura A. Cordero, Trial Judge).

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

Argued May 27, 2010

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

Appellant L.M.F., the grandmother of minor child L.S., appeals from a final decree of the Family Court of the Superior Court denying her petition to adopt L.S. and granting the competing adoption petition of C.A.B. and H.N.B., the child's foster parents. In the same proceeding, the court terminated the parental rights of S.S., the child's natural mother, and also the parental rights of the child's natural father, Lo.S., who did not seek review of the magistrate judge's order to that effect. The mother had consented to the grandmother's adoption petition and withheld her consent from the foster parents' petition. The grandmother, L.M.F., argues that the trial court applied an incorrect standard, preponderance of the evidence, when evaluating the merits of the competing petitions. Appellee foster parents oppose this argument on the ground that the finder of fact, the magistrate judge, specifically made the necessary finding by clear and convincing evidence. Appellee Guardian ad Litem (GAL) of the child makes the same argument. Appellee the District of Columbia argues similarly that the magistrate judge's finding under the preponderance standard was harmless error, as she found against appellant under the clear and convincing standard as well. Appellees also argue that we should dismiss the case for lack of jurisdiction, for lack of standing, or because this court cannot afford an adequate remedy. While we disagree with appellees' justiciability arguments, we agree with appellees that the trial court did not abuse its discretion in its evaluation of the competing petitions. Accordingly, and for the reasons stated herein, we affirm.

I. The Neglect and Adoption Proceedings

Because of the nature of the issues involved, we set forth the procedural history and the most relevant facts in some detail. L.S. was born on January 30, 2005, to mother S.S. and father Lo.S. In February of 2005, doctors discovered that the child suffered from a "posterior urethral valve" and "poor renal function" that caused significant problems for him in voiding urine. At the age of two-and-a-half weeks, the child underwent vesicostomy surgery at Children's National Medical Center to "relieve the urinary obstruction."*fn1 He was released to the mother on February 21, with instructions for his care. Two days later, the child had to be hospitalized again because of alleged neglectful treatment by the mother in administering the care he needed. On February 23, he was placed in shelter care and, on March 2, when he was less than five weeks old, he was placed in the foster parents' home, where he remained until the time of trial.

On June 2, 2005, the mother, S.S., entered into a stipulation with the government that she had a history of mental illness and had been diagnosed with bipolar disorder. On that same day, the Superior Court found, pursuant to D.C. Code § 16-2301 (9)(A)(iv) (Supp. 2007), that the child was neglected and committed the child to the care and custody of the Child and Family Services Agency. The court initially set reunification with the mother as the permanency goal, but on May 8, 2006, that goal was changed to adoption and guardianship by the maternal grandmother, L.M.F. The grandmother was already caring for four children, including three of the mother's other children.

On September 15, 2006, the court again changed the reunification goal, this time to adoption by the foster parents. On September 27, the foster parents filed a petition to adopt the child. On November 27, the grandmother filed a competing adoption petition. On December 1, 2006, a Superior Court judge consolidated the cases with respect to the competing adoption petitions and the neglect case. On July 17, 2007, the mother filed a consent to the grandmother's adoption petition. A trial was held on the competing petitions and motions to terminate parental rights on October 22, 23, 29, and 30, November 28 and 30, and December 11, 2007, before Magistrate Judge Janet Albert. The GAL supported the foster parents' adoption petition.

At the trial, the magistrate judge received testimony and exhibits relating to the relative merits of the petitioners, including testimony from social workers, family members, the petitioners, and the natural parents.*fn2 The magistrate judge found, inter alia, that the child had lived virtually his entire life with the foster parents and had a "strong and secure" attachment to them. The magistrate judge credited the testimony of Dr. Susan Theut, a child psychiatrist with Youth Forensic Services who specialized in the bonding and attachment of children ages zero to three. Dr. Theut conducted attachment evaluations of the child to the foster parents and of the child to the grandmother. Dr. Theut found that the foster parents' contact with the child was "warm, rich, and emotionally textured." Dr. Theut also found that there was a "good connection" between the child and the grandmother, but of the competing petitioners, the foster parents' attachment to the child was stronger. She concluded that the child viewed the foster parents as his mother and father, and she opined that removing the child from the home of the foster parents "would seriously affect his emotional or mental health," and "would likely impair his ability to form secure and loving attachments."

In addition to crediting the testimony of Dr. Theut, the magistrate judge found that the foster parents "demonstrated a more mature emotional health" than the grandmother, who at times put her own emotional needs before those of the child's. The magistrate judge found the foster parents capable and reliable in dealing with the child's medical problems, in that they had never missed a doctor's appointment or a single dose of medication for the child. The child appeared to be healthy and well adjusted in their care. The magistrate judge found that "there was not a shred of doubt" that the foster parents "would meet [the child's] future medical needs, no matter how extensive, expensive or time-consuming." By contrast, the grandmother had "only attended a handful" of the child's numerous medical appointments and was frequently late to those she attended. She appeared withdrawn when doctors would attempt to discuss the child's medical needs, either out of frustration or a fear that she was being judged for her lack of knowledge. The magistrate judge was left with "no confidence" that the grandmother would be able to meet the child's ongoing medical needs.

The magistrate judge found that the child had positive relationships with the other children in the grandmother's household and that the child would have the greatest ongoing contact with his birth family if he lived with the grandmother. However, the magistrate judge also found that the mother's continuing presence would have a negative effect on the child. Specifically, the court noted that the mother was a source of "tension and instability" when she would visit the grandmother's household, evidenced by the fact that on two occasions the grandmother took out protective orders against the mother. The court found that in addition to her mental condition, the mother had admitted to a long history of using marijuana and PCP. Further, the court found that the grandmother was under a great deal of stress from taking care of four other grandchildren already, and that, "Under the best of circumstances, [the grandmother] is spread extremely thin without significant outside support."*fn3 Ultimately, the magistrate judge concluded that the grandmother "is not a viable placement option" for the child.

On April 3, 2008, the magistrate judge issued an order (1) denying the grandmother's adoption petition, (2) waiving the consent of the biological father and mother to the foster parents' adoption petition, and (3) granting that petition. Five days later, on April 8, 2008, she issued an amended order (1) denying the grandmother's adoption petition, (2) waiving the mother's and father's consent to the foster parents' adoption petition, and (3) ordering that CFSA "proceed to make all necessary preparations to proceed to final decree" in the foster parents' petition.*fn4 In considering the petitions before her, the magistrate judge found by clear and convincing evidence that both parents were withholding consent to the adoption by the foster parents against the best interests of the child, pursuant to D.C. Code § 16-304 (e). In so doing, the court analyzed the case in light of each of the factors in D.C. Code § 16-2353 (b). The court also found by clear and convincing evidence that the parents had abandoned the child pursuant to D.C. Code § 16-304 (d).

Having found that the parents' consent should be deemed waived, the magistrate judge proceeded to analyze the merits of the competing petitions to determine which placement was in the child's best interest, using a preponderance of the evidence standard. Counsel for the grandmother argued that under this court's decision in In re T.J., 666 A.2d 1 (D.C. 1995), the court could override the mother's choice of custodian only if it found by clear and convincing evidence that the placement would not be in the child's best interest. The magistrate judge disagreed, citing this court's decision in In re J.D.W., 711 A.2d 826 (D.C. 1998), and concluded that once a determination has been made by clear and convincing evidence that the natural parents are withholding their consent to the adoption petition contrary to the best interest of the child, the two competing adoption petitions may be compared using the preponderance of the evidence standard.

In a footnote, however, the magistrate judge articulated her further conclusion that the court would find, even under a "clear and convincing evidence" standard, that placement with the grandmother was not in the child's ...


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