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In Re Petition of A.O.T. Nl.R.


December 23, 2010


Appeal from the Superior Court of the District of Columbia Family Court (ADA 72-06, 73-06, 74-06) (Hon. Anita Josey-Herring, Trial Judge)

The opinion of the court was delivered by: Glickman, Associate Judge:

Argued January 28, 2010

Before RUIZ and GLICKMAN, Associate Judges, and TERRY, Senior Judge.

Nl.R. appeals the trial court's waiver of his consent to the adoption of his daughters and the accompanying termination of his parental rights. We agree with appellant's contention that notwithstanding provisions of the District of Columbia Family Court Act of 2001, under the Family Court's General Rule D (c), a magistrate judge is not authorized to conduct an adoption trial without the parties' consent. Because appellant withheld his consent to trial before a magistrate judge, we reverse and remand for a new adoption trial before an associate

judge of the Family Court.*fn1


Appellant Nl.R. is the biological father of I.R., M.R., and Ne.R. The three girls were born in 1994, 1996, and 1998, respectively. Appellant gained sole legal custody of the children in 2000 after they were removed from the care of their mother, L.B., following allegations of neglect. L.B. has not been involved in the girls' lives since that time.

The children lived with appellant until February 2005, when he was arrested and jailed on drug charges. He later was sentenced to serve a prison term of 18 months.*fn2 On March 15, 2005, the three girls were placed together in the foster home of A.O.T., the woman who eventually would seek to adopt them. The children have lived with A.O.T. continuously since then.

Following the foster care placement, the District filed petitions in Superior Court alleging that I.R., M.R., and Ne.R. were neglected children within the meaning of D.C. Code § 16-2301 (9)(A)(ii) and (iii) as a result of appellant's incarceration.*fn3 Appellant stipulated that he was unable to discharge his parental responsibilities while in jail. The stipulation, executed by appellant, his counsel, an Assistant Attorney General for the District, the guardian ad litem for the children, and a Child and Family Services Agency ("CFSA") social worker, recited that [Nl.R.] loves his children very much and is solely concerned with what is in their best interest. All parties agree that the case goal for [I.R., M.R., and Ne.R.] is reunification with [Nl.R.] without the court's supervision. [Nl.R.] agrees to cooperate with CFSA and to accept, pursue and complete all reasonable service referrals provided to her [sic] by CFSA.

In May 2005, Magistrate Judge Tara J. Fentress adjudicated the children neglected on the basis of appellant's stipulation and committed them to CFSA's care, specifying reunification with appellant as the ultimate permanency goal. Reunification remained the goal identified in CFSA's three reports to the court between May and November 2005. However, at a permanency hearing on November 3, 2005, Magistrate Judge Fentress changed the goal from reunification with appellant to adoption. The reason given for the change by the magistrate judge in her permanency hearing order was that reunification. The current foster parent, with whom the children have been placed since March 15, 2005, is willing to adopt.

Appellant objected unsuccessfully to the change in goal.*fn4

On February 27, 2006, the District moved in the neglect cases to terminate appellant's parental rights, and on March 29, 2006, A.O.T. filed petitions to adopt I.R., M.R., and Ne.R. By court order, the adoption cases were consolidated with the neglect cases and were assigned to Magistrate Judge Fentress.

Appellant moved to have the adoption and termination of parental rights ("TPR") trial reassigned to a Superior Court associate judge. He argued that reassignment was required under Family Court General Rule D (c) and D.C. Code § 11-1732 (j)(5) (Supp. 2010), which provide that a magistrate judge may not conduct such proceedings without the parties' consent,*fn5 and under Canon 3(E)(1) of the Code of Judicial Conduct, which requires a judge to recuse herself when her impartiality reasonably might be questioned.*fn6 Appellant declared that he did not consent to have Magistrate Judge Fentress preside over the adoption and TPR trial because he had reason to believe she had "pre-judged the case." As appellant explained, he perceived that when she decided in November 2005 to change the permanency goal in the neglect cases to adoption over his objection, the current Magistrate Judge . . . determined, based upon information she received from various sources, that it would be in the best interest of the children if they were adopted by their current foster parent. The issue of whether it is in the best interests of the children to be adopted is the central issue to be litigated. Therefore, there is the appearance that the present judicial officer has pre-judged the case, having already ruled on this issue.

In the neglect cases, appellant also claimed, the magistrate judge had "heard, and accepted as true," unreliable hearsay evidence that was "highly prejudicial" to him.*fn7 "Given this imbalance at the outset of trial," appellant concluded, "it is only fair that a new judge be assigned to hear the case."*fn8

Magistrate Judge Fentress denied appellant's motion, finding "no binding authority that justifies certification of these cases to an Associate Judge."*fn9 Appellant petitioned the Presiding Judge of the Family Court, Judge Anita Josey-Herring, to review that decision. Although she ruled that the appeal was premature, Judge Josey-Herring also opined that the party-consent requirement applicable to magistrate judges generally by virtue of § 11-1732 (j)(5) had been superseded by the enactment of D.C. Code § 11-1732A (Supp. 2010) in the District of Columbia Family Court Act of 2001. Section 11-1732A sets forth "[s]pecial rules for magistrate judges of the Family Court of the Superior Court and the Domestic Violence Unit." Specifically, in contrast to § 11-1732 (j)(5), § 11- 732A (d)(2) empowers magistrate judges to conduct proceedings in Family Court without conditioning their authority to do so on the parties' consent.*fn10 Judge Josey-Herring did not address the impact of § 11-1732A (d)(2) on Family Court General Rule D (c), however.

In August 2007, the adoption and TPR trial was held before Magistrate Judge Fentress, who ultimately found it in the children's best interests to waive the parental consents and grant A.O.T.'s petition to adopt I.R., M.R., and Ne.R. On review, Judge Josey-Herring affirmed that decision. In doing so, the judge reaffirmed her earlier conclusion that consent of the parties was not required for the magistrate judge to conduct the proceedings.


Whether Magistrate Judge Fentress was authorized to preside over the adoption trial without appellant's consent turns on whether Congress overrode the consent requirement of Family Court General Rule D (c) when it passed the District of Columbia Family Court Act of 2001.*fn11 The Superior Court has not amended or revoked Rule D (c) in the several years that legislation has been on the books. If the Rule is irreconcilable with the Family Court Act, however, the Rule cannot prevail.*fn12 On the other hand, if the Rule is compatible with the legislation, appellant was entitled to invoke it. The question concerns two provisions added by the Act to the D.C. Code: § 11-1732A (d)(2), which specifies the authority of magistrates to conduct proceedings in the Family Court, and § 11-1104, which imposes the "one family, one judge" requirement for Family Court cases. As the issue before us is one of statutory interpretation, our review is de novo.*fn13

We agree with appellant that Rule D (c) does not conflict with § 11-1732A (d)(2). The Rule, promulgated years before the Family Court Act, implemented the requirement in D.C. Code § 11- 1732 (j)(5) that magistrate judges generally must have the parties' consent in order to conduct trials and other proceedings in Superior Court (including its Family Division). Congress chose to exempt magistrate judges in Family Court from that statutory restriction when it enacted § 11-1732A (d)(2) as part of the Family Court Act.*fn14 Its evident purpose in doing so was to enable magistrate judges to shoulder much of the burden of the Family Court's caseload (particularly its child abuse and neglect docket). Nonetheless, it does not follow from the omission in § 11-1732A (d)(2) of a statutory party-consent requirement that Congress meant to foreclose the Superior Court from adopting (or, as happened, retaining) such a requirement by court rule.*fn15 The statute's silence on the necessity for party consent to magistrate judge trials in Family Court is some indication that Congress was satisfied, in the interests of preserving the Court's flexibility, to leave the latter question ultimately to the Court's discretion, as exercised via its rule-making power.*fn16 As part of the Family Court Act, Congress reaffirmed in subsection (n) of § 11-1732 (the original magistrate judge statute) that the Superior Court Board of Judges "may promulgate rules, not inconsistent with the terms of this section [i.e., § 11-1732], which are necessary for the fair and effective utilization of magistrate judges in the Superior Court." (Emphasis added.) It is not suggested that Rule D (c) is beyond the Superior Court's power under § 11-1732 (n), and nothing in § 11-1732A expressly purports to countermand or limit that power. Rather, as appellant emphasizes, § 11-1732A (d)(2) provides (repeatedly) that the Family Court magistrate judge's adjudicative authority is "subject to the rules of the Superior Court."*fn17 Given that specific language, we are hard pressed to find a clear contradiction between § 11-1732A (d)(2) and Rule D (c). We have been given no reason to believe that the party-consent requirement in the Rule has, in practice, impeded the statutory goal of maximizing the use of magistrate judges to conduct Family Court proceedings, or that it is likely to do so in the future.

We likewise conclude that Rule D (c) is compatible with D.C. Code § 11-1104. The statute embodies a core policy of the Family Court Act of 2001 -- that "[t]o the greatest extent practicable, feasible, and lawful," all cases involving members of the same family "shall be assigned to the same judge or magistrate judge" in Family Court.*fn18 We perceive no fundamental tension between that statutory policy and the choice afforded by Rule D (c). A Superior Court associate judge who hears a family matter (because a litigant has exercised the option not to consent to trial before a magistrate judge) can continue to hear other related matters, fulfilling the "one family, one judge" goal. The statute expresses a policy in favor of there being one decision-maker, but it does not express a preference for magistrate judges over associate judges. The potential for a rule of court permitting parties to withhold consent to the assignment of their cases to magistrate judges to undercut the "one family, one judge" policy arises only when there exists a related case that already has been decided by, or that already is pending before, a magistrate judge. Even then, it often may be possible to avoid or alleviate any conflict between the right granted by Rule D (c) and the statutory policy by reassigning the pending related case to an associate judge or by assigning the new case to the same associate judge who would review (or has reviewed) the magistrate judge's decision in the related case pursuant to D.C. Code § 11-1732 (k). (Possibly the latter course could have been followed here.)

Moreover, the "one family, one judge" policy is not absolute or ironclad. There are countervailing considerations. The Rule recognizes that a litigant may have many valid reasons to seek adjudication by an associate judge rather than a magistrate judge. And by its terms, "one family, one judge" is not to be followed if it would be impracticable, infeasible, or unlawful to do so. Illustratively, in his testimony before Congress, then-Chief Judge King envisioned limitations required as a matter of due process: "For example," he said, "a termination [of parental rights] trial might require a judge who had not spent years listening [in related neglect proceedings] to hearsay and hearing third-hand comments from social workers about other family members, and so on, just to give the elements of a fair trial in the termination process."*fn19 In addition, D.C. Code § 11-1104 (b)(3) specifically provides that compliance with the "one family, one judge" policy is "subject to applicable standards of judicial ethics."*fn20 Notably, under Canon 3(E)(1), on which appellant relied in this case, the "one family, one judge" rule must give way if the judge's impartiality "might reasonably be questioned."*fn21 In short, considerations of adjudicative fairness and judicial impartiality may override "one family, one judge."

On the record before us, appellant's stated reason for withholding his consent to the magistrate judge's conduct of the adoption trial was fully consistent with § 11-1104 (b)(3) and the overriding goal of ensuring a fair trial before an impartial trier of fact.*fn22 There is no reason to believe that appellant's stated reason was pretextual. We cannot conclude that appellant misused Rule D (c) to thwart the appropriate sweep of the "one family, one judge" policy.

Furthermore, we have no data indicating the frequency with which litigants object to magistrate judges in Family Court, let alone how often they do so in a manner that undermines the objective of the "one family, one judge" requirement. In the absence of such information, we think it fair to assume that litigants generally do not seek to evade the "one family, one judge" regime. So far as appears, in other words, the tension between the Rule and the "one family, one judge" requirement is more theoretical than real. We therefore cannot find that Rule D (c) is incompatible with D.C. Code § 11-1104.


We conclude that under D.C. Code § 11-1732A (d)(2) and Family Court General Rule D (c), Magistrate Judge Fentress lacked authority to conduct the adoption and TPR trial without appellant's consent. Because appellant lodged an objection, we must vacate the judgment and remand the cases for a new trial before an associate judge of the Family Court.*fn23

So ordered.

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