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S.M. v. R.M.

Court of Appeals of Columbia District

June 12, 2014


Argued December 12, 2013.

Appeal from the Superior Court of the District of Columbia. (DRB-1604-06). Hon. Alfred S. Irving, Jr., Trial Judge.

For appellant: Michelle R. Bonner.

R.M., Pro se.

Melissa Colangelo, Children's Law Center, with whom Katherine Zeisel was on the brief, for amicus curiae in support of child's best interests.

Before GLICKMAN and EASTERLY, Associate Judges, and FARRELL, Senior Judge.


Page 1129

Easterly, Associate Judge :

This case requires us to interpret the Safe and Stable Homes for Children and Youth Amendment Act of 2007, D.C. Code § § 16-831.01 to .13, 21-2301 (2012 Repl.), the child custody statute governing transfer of custody to non-parent third parties. Specifically, we consider whether the statutory parental presumption that custody with a parent is in a child's best interest applies beyond the initial custody transfer decision, to the modification of a third-party custody order.

In May 2006, R.M. (" the aunt" ) sought custody of T.P., the daughter of her sister S.M. (" the mother" ). After a November 2007 hearing at which the Superior Court (the Honorable Fern Flanagan Saddler) awarded the aunt temporary custody of T.P., the mother filed an emergency motion for a stay. However, at a subsequent December 2007 hearing, the mother, who appeared pro se, retracted the allegations she had made in her emergency motion and agreed that custody of T.P. should be given to the aunt. The mother consented to this arrangement with the understanding that, in a year, when she completed treatment for her acknowledged drug problem, she would get her " baby" back. This understanding was affirmed by the aunt, who repeatedly reassured the mother at the hearing that she would regain custody of T.P.

As the parties discussed the custody arrangement, the Superior Court largely remained silent. Although the court did note that the parties would have to file a motion to modify the custody order, it did not explain what such a proceeding would entail. At no point was there any acknowledgment that the aunt's complaint

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for custody had to be evaluated under the third party custody statute, D.C. Code § 16-831.01 et seq. (2012 Repl.), or that the third party custody statute recognizes a parental presumption that custody with a biological parent is in a child's best interest. At no point was there any acknowledgement that under the third party custody statute, the mother had three choices: (1) she could preserve her parental presumption by arranging, subject to her revocable consent, a temporary custody situation for T.P. with the aunt; (2) she could stand on her parental presumption and force the aunt to rebut it by clear and convincing evidence; or (3) she could waive the parental presumption by giving irrevocable consent to a custody transfer to the aunt, at which point the only concern in any future modification of custody proceedings would be whether, given a substantial and material change in circumstances, removal of T.P. from the custody of the aunt was in T.P.'s best interest. In fact, as reflected by its January 2008 order granting the aunt sole physical and legal custody of T.P., the Superior Court did not appear to be aware that the third-party custody statute governed these proceedings and cited instead to the intra-parental custody statute, D.C. Code § 16-914 (2012 Repl.).

The mother successfully addressed her drug problem, but she did not regain custody of T.P. Several years passed, during which the mother filed multiple motions to modify the 2008 custody order, as she had been directed to do at the 2007 hearing. It is the resolution of the fourth modification motion that concerns us. The mother, newly represented by counsel, asked the Superior Court (the Honorable Alfred S. Irving, Jr.) to incorporate the parental presumption under D.C. Code § 16-831.05 in its custody modification decision under D.C. Code § 16-831.11. In orders issued in December 2012, the Superior Court declined to apply the parental presumption and rejected the mother's motion for reconsideration. In an order issued in January 2013, the court ruled on the mother's motion for modification, finding that the mother had made a substantial change in her circumstances, but determining that modification of custody was not in the best interests of T.P.[1] These three orders are now on appeal.

The mother's central argument is that the Superior Court erred by not incorporating the parental presumption into its custody modification decision. Although she concedes that the parental presumption under D.C. Code § 16-831.05 ordinarily does not apply when a parent moves to modify a third-party custody order to which the parent initially consented, she argues that such consent must be knowing and intelligent, and that she did not understand at the December 2007 hearing that she was irrevocably relinquishing custody of T.P. to the aunt. Accordingly, the mother asserts that the parental presumption, having never been properly rebutted or waived at the 2007 hearing, was still in force when she filed the subject motion for modification. The aunt disputes the mother's contention that she did not knowingly consent to an irrevocable transfer of custody and argues that the parental presumption should not apply in this case. Amicus curiae Children's Law Center argues that the parental presumption is categorically inapplicable whenever the Superior Court

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is considering a motion to modify a custody order to a non-parent.

Examining the text of the modification provision, D.C. Code § 16-831.11, and the third party-custody statute as a whole, we determine that a parent's irrevocable consent to the transfer of custody of her child to a non-parent under D.C. Code § 16-831.05 (a) generally waives his or her parental presumption, such that the presumption will not apply in subsequent modification proceedings. As the third-party custody statute reflects, however, this general rule presumes that a parent's irrevocable consent to a transfer of custody to a third party is given with full knowledge and understanding of what she is consenting to and the consequences of that consent. We conclude that the current appeal presents the exceptional case in which the record does not support the finding that the mother knowingly and intelligently consented to an irrevocable transfer of custody of her child. We therefore reverse the Superior Court's judgment awarding the aunt sole legal and physical custody of minor T.P., and remand the case for further proceedings consistent with this opinion.

I. Facts and Procedural History

T.P. was born in February 2000 to the mother and J.P. (" the father" ), now deceased. In May 2006, the aunt sought custody of T.P. At the time the aunt's complaint was filed, the mother was housed at the D.C. jail. The father, who determined that he was unable to adequately care for T.P. due to his advancing age and failing health,[2] consented to the aunt's complaint for custody. For over a year, little action was taken in the case. In September 2007, the Superior Court held a hearing on the aunt's complaint and took sworn testimony. In November 2007, the parties received a ruling from the bench awarding the aunt temporary sole legal and physical custody with visitation to both parents, and a hearing was scheduled for May 2008 on the issue of permanent custody. Shortly thereafter, the mother filed a pro se emergency motion to stay the entry of the temporary order. The court granted the motion and the case was continued to early December 2007.

In December 2007 the mother, father, and aunt appeared for a status hearing; all were without counsel. The mother then retracted the allegations she had made in her emergency motion for a stay of the temporary order of custody. The mother told the court that she had made arrangements to enter a year-long drug treatment program and that she wished for the aunt to have custody of T.P. until she returned. Instead of simply issuing the order for temporary custody awarded in November, however, the court, sua sponte and without explanation, announced that it would issue an order granting the aunt permanent custody.

The court explained that the order would " say permanent custody, but it does not mean forever." Rather, the court informed the mother that it meant: " [A]nytime you want to change it, you file your motion." To this the mother responded: " I ain't going to want to change--I want her to keep . . . my daughter . . . [u]ntil . . . I come home and complete that program and show my sister that I don't have to use [drugs] to live my life."

The mother's explicit desire to regain custody of her child prompted no comment from the court other than an affirmation that filing a motion would be " all you have to do." After this exchange, the court appeared ready to quickly conclude the proceedings, but then realized that it needed to confirm that the father consented to

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a permanent transfer of custody to the aunt.

As the court spoke to the father, the mother repeatedly interjected with comments and questions. First, the mother informed the court that she wanted to return to court to regain custody of T.P. " this month next year before Christmas." The court explained that she could come back " whenever [she] want[ed] to do it." When the court asked the father if he consented " to the aunt having sole legal and sole physical custody," the mother asked: " What [does] that mean, legal custody'" The court told her that " it just means that [the aunt] gets to make decisions about education . . . religious affiliation . . . [and] medical issues," but that the aunt and the mother could still confer about these matters. The mother accepted this explanation, but then returned to her questions about regaining custody: " And I still get my daughter back when I . . . complete the program? Excuse me, Your Honor, I get my daughter back'" The aunt quickly responded to this question: " Yes." The court then qualified: " It's not automatic. What I'm trying to tell you is I'm giving her custody. If you want to get your daughter back, file a motion with the court."

The mother continued to express confusion, however, telling the court: " I don't understand that." Instead of getting an explanation from the court, she ended up in a dialogue with her sister:

AUNT: Just like how you came and filed that [emergency] motion, for to stop me?

MOTHER: I could file a ...

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