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In Re Petition of R.E.S.

May 19, 2011


Appeal from the Superior Court of the District of Columbia (ADA249-06) (Hon. Carol Ann Dalton, Trial Judge)

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

Argued March 23, 2011

Before GLICKMAN and FISHER, Associate Judges, and REID,*fn1 Associate Judge, Retired.

This is the second time D.F. has come before this court in an effort to set aside a final decree granting R.E.S.'s petition to adopt his biological daughter D.T. without his consent. Following our remand for a hearing, D.F. now challenges the denial of his claim of ineffective assistance of counsel. We reject his contentions and affirm.

I. Background

D.T. was born in 1995 and removed from her mother L.B.'s care in 2001 due to allegations of neglect. Before then, D.F. was not aware of D.T.'s existence. Once a paternity test confirmed he was D.T.'s father, D.F. "wanted custody of D.T.[,]" but only visited her four times before he was arrested on drug charges. He pled guilty in October 2002, and soon thereafter was sentenced to prison, where he remained until May 2010.

D.T. resided in six different foster homes before March 1, 2006, when she was placed with R.E.S. A few months later, R.E.S. filed a petition to adopt D.T. Judge Dalton (then a Magistrate Judge) held a trial to determine whether the biological parents' consent to the adoption should be waived.R.E.S. and Linda Clausen, the social worker assigned to D.T.'s case, were the only witnesses who testified. D.T.'s guardian ad litem spoke in support of R.E.S.'s petition and she, R.E.S., and Ms. Clausen reported that D.T. wanted R.E.S. to adopt her. At the conclusion of the hearing, Judge Dalton found that L.B. and D.F. had abandoned D.T. and that it was in D.T.'s best interests to waive their consent to her adoption.*fn2

Judge Cheryl Long affirmed the decision to grant R.E.S.'s petition.

When we first addressed this appeal, D.F. argued, among other things, that he had been denied the effective assistance of counsel. In re R.E.S., 978 A.2d 182, 185 (D.C. 2009) (In re R.E.S. I). His ineffectiveness claim was based on his counsel's failure (1) to make arrangements for him to participate in the proceedings (he was still incarcerated at the time of the show-cause hearing), and (2) "to call any witnesses to support his preference that members of his family provide care for D.T." Id. at 194. We were unpersuaded by his independent arguments for a new adoption trial, but held that he had a statutory right to effective assistance of counsel, and remanded the record (not the case) for further inquiry concerning "the performance of his court-appointed counsel." Id. at 188-89, 195. In particular, we wanted to "know what the record would have looked like" if D.F. and his proposed caretakers had testified. Id. at 195. We also announced that the District of Columbia would apply the Strickland standard (tailored to fit the context) when evaluating claims that a parent has been deprived of the effective assistance of counsel in proceedings to terminate his or her parental rights. Id. at 191 (citing Strickland v. Washington, 466 U.S. 668 (1984)).

On remand, Judge Dalton (then an Associate Judge of the Superior Court) held a three-day evidentiary hearing for the limited purpose of determining whether appellant's counsel had been ineffective. The trial court heard testimony from D.F.; his trial counsel, Hope Umana; and his proposed caretakers -- his sisters M.F.T. and B.J., his niece's mother G.A., and his fianceee B.S. Ultimately, the court rejected D.F.'s ineffectiveness claim, concluding that he had not satisfied the prejudice prong of Strickland.*fn3

In the present case, the Court cannot find that the father was prejudiced nor is there a reasonable probability that if the father was present and the witnesses had testified that the decision of the Court would have been different. The respondent had been in foster care and numerous placements for years without permanency. The father was unavailable due to his incarceration and no family member had proceeded to permanency in any convincing manner.

D.F. argues that the trial court did not apply the correct standard when resolving his claim of ineffectiveness because it failed to give proper consideration to his preference that D.T. be placed with one of the caretakers he had proposed.*fn4 Appellant also claims that Judge Dalton abused her discretion when she did not permit him to call Ms. Clausen as a witness.

II. Ineffective Assistance ...

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