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

December 23, 2010

IN RE PETITION OF A.O.T. NL.R., APPELLANT.


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

I.

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 ...


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