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In re Petition of T.W.M.

April 28, 2011

IN RE PETITION OF T.W.M.; A.E., S.E., AND T.B., APPELLANTS


Appeal from the Superior Court of the District of Columbia (ADA-373-03 & ADA-96-09) (Hon. Zoe Bush, Trial Judge)

Per curiam.

Argued January 19, 2011

Before GLICKMAN, KRAMER and BLACKBURNE-RIGSBY, Associate Judges.

We have previously had occasion to address this case in In re T.W.M., 964 A.2d 595 (D.C. 2009), where we vacated the trial court's order which granted T.W.M.'s petition to adopt T.E., her foster child, and denied A.E.'s competing adoption petition over the objection of S.E. and T.B., T.E.'s birth parents. Finding that the trial court failed to give appropriate consideration to the birth parents' preference to have A.E. (S.E.'s cousin) adopt T.E., we remanded to the trial court with explicit instructions to "determine anew whether T.B. and S.E. . . . [were] withholding their consent contrary to the best interests of T.E." Id. at 606. After a new trial presided over by a new judge, the trial court again granted T.W.M.'s adoption petition and denied A.E.'s petition. A.E. now appeals the trial court's order denying her petition to adopt T.E. and granting the competing petition of T.W.M. T.B. and S.E. also submitted briefs in support of A.E., whose adoption petition they had supported. T.E.'s guardian ad litem (GAL) also filed a brief in support of A.E.'s adoption petition. The parties claim that the trial court erred when it found, by clear and convincing evidence, that the adoption of T.E. by A.E. would be contrary to T.E.'s best interests, and that it erred by failing to consider T.E.'s opinion of her own best interests. For the reasons below, we affirm.*fn1

I. Factual Background

A. Background

Because the facts of the case are set out in detail in our first opinion, id. at 597-601, we briefly recount the most pertinent facts here. T.E. was born to T.B. (father) and S.E. (mother) on October 9, 2001. T.E. was placed in foster care on November 29, 2001, after her mother left her at the hospital. S.E. stipulated to neglect in January of 2002, and T.E. was placed in S.E.'s protective supervision while S.E. participated in a drug treatment program. In October of 2002, S.E. absconded from the program and left T.E. behind. After a brief placement with her maternal aunt, who was also caring for several of T.E.'s siblings, T.E. was placed in foster care with T.W.M. on November 21, 2002. Id. at 598.

Shortly thereafter, A.E., S.E.'s cousin, contacted the Child and Family Services Agency (CFSA) about getting custody of T.E. A.E. began supervised visits with T.E. on January 18, 2003, and was permitted unsupervised, overnight weekend visits starting May 5, 2003. In late 2003, T.B. and S.E. each formally consented to the adoption of T.E. by A.E. and T.W.M. filed a competing adoption petition. Id. at 598-99.

With the exception of a few-month period during which T.W.M. was deployed overseas, T.E. resided with her from November 2002 until May 2005. In May 2005, T.E. was removed from T.W.M.'s home due to a "hair incident" and placed with a different foster home. Id. at 599. "On May 19, 2006, after the trial concluded, the trial court ordered CFSA to place T.E. with T.W.M. and to terminate contact between A.E. and T.E." Id. at 600. On November 22, 2006, the trial court entered its order granting T.W.M.'s adoption petition and denying A.E.'s petition.

B. The First Appeal

T.E.'s birth parents, S.E. and T.B., appealed the trial court's order. A.E. did not appeal. After review, we held that the trial court erred by granting T.W.M.'s petition and denying A.E.'s petition because the trial court did not give weighty consideration to S.E. and T.B.'s choice of A.E. as adoptive parent. Id. at 603. "[I]n a case where there are competing petitions for placement of a child and one of the petitioners is favored by the natural parent, the party without the parent's consent has the burden of establishing by clear and convincing evidence that placing the child with the parent's preferred caregiver is contrary to the child's best interest." Id. at 604. We also held that the trial court abused its discretion when it found that A.E. would not be a fit caregiver. Id. at 603-04. We vacated the trial court's order and instructed the trial court to "determine anew whether T.B. and S.E. . . . [were] withholding their consent against the best interest of T.E." Id. at 606.

C. 2009 Trial

After we issued our ruling in T.W.M., T.E. continued to reside with T.W.M. and that placement remains undisturbed. Thus, T.E. has been continuously residing with T.W.M. since April 2006. A.E. was again granted supervised visitation with T.E., which then became unsupervised overnight visits every other weekend in July 2009. The trial court conducted ten days of evidentiary hearings, spanning from September 21, 2010 through November 3, 2010. "T.W.M. proffered six witnesses, including an expert; A.E. proffered seven witnesses, including an expert; the District of Columbia proffered two witnesses, including an expert; S.E., the birth mother, testified on her own behalf; T.B., the birth father, testified on his own behalf; and the guardian ad litem called no witnesses but actively participated in the examination of witnesses." The court noted that, as in the first trial, T.E.'s natural parents, her GAL, the District and A.E. supported adoption by A.E. while T.W.M. "stood alone."

The trial court exhaustively summarized the testimony of the witnesses in its forty-five page order. The trial court explicitly stated that it gave "weighty consideration to the birth parents' preference for A.E.," and it found that A.E. would be a fit caregiver. However, based largely on the facts that T.E. had been cared for by T.W.M. for all but two years of the girl's life, and that in T.W.M.'s care T.E. has "thrived and become a happy, well adjusted child," and based on the expert testimony of Dr. Missar, the court concluded that clear and convincing evidence demonstrated that the ...


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