In re Petition of J.O. & P.O., Appellants.
June 14, 2017
from the Superior Court of the District of Columbia
(ADA-95-13) Hon. Errol R. Arthur, Magistrate Judge, Hon.
Hiram E. Puig-Lugo, Associate Judge
Patricia M. Spicer, for appellants.
Leon, guardian ad litem.
Melissa Colangelo, Children's Law Center, as amicus
A. Singh, for appellees.
A. Racine, Attorney General for the District of Columbia,
with whom Todd S. Kim, Solicitor General at the time, Loren
L. AliKhan, Deputy Solicitor General at the time, and
Rhondalyn Primes Okoroma, Assistant Attorney General, filed a
statement in lieu of brief, for appellee the District of
Blackburne-Rigsby, Chief Judge, Glickman, Associate Judge,
and Reid, Senior Judge.
Blackburne-Rigsby, Chief Judge.
case involves two competing petitions to adopt E.S., a little
girl born prematurely to K.S. on October 30, 2012, and
adjudicated neglected on February 27, 2013. E.S.'s foster
parents, appellants J.O. and P.O. ("the O.s"), and
E.S.'s guardian ad litem ("GAL"),
challenge the trial court's decision dismissing the
O.s' adoption petition, and granting the petition of
B.S.W. and S.E.W. ("the W.s").
appeal, the O.s argue that weighty consideration should not
have been afforded to the W.s because K.S. was incompetent at
the time she designated the W.s. Without the weighty
consideration, the O.s argue, the trial court would not have
found that granting the W.s' petition was in the best
interest of the child, E.S.
existing case law, when a parent consents to adoption of his
or her child by a preferred custodian, "unless it is
established that the parent is not competent to make
such a decision . . . a parent's choice of a fit
custodian for the child must be given weighty consideration .
. . ." In re T.J., 666 A.2d 1, 11 (D.C. 1995)
(emphasis added). In this case, we must clarify the standard
for determining whether a natural parent is competent to
designate a preferred caregiver, and thus recognize those
instances when a natural parent's choice of preferred
caregiver is not entitled to weighty consideration because
the parent is not competent to make such a decision. Based on
the record before us, we conclude that the natural parent,
K.S., was not competent to designate a preferred caregiver
because she could not make a determination about what was in
her child's best interest and plan for her child's
future accordingly. The trial court therefore erred in
concluding that K.S.'s designation of the W.s should be
afforded weighty consideration. Because the trial court erred
in assessing the W.s under the weighty consideration
doctrine, we remand to the trial court to reevaluate the
O.s' and the W.s' adoption petitions based solely on
the best interest of the minor child under the termination of
parental rights ("TPR") factors under D.C. Code
§ 16-2353 (2012 Repl.).
E.S.'s Placement in Foster Care and Permanency Goals Set
for Her Case
was born prematurely at Georgetown University Medical Center
on October 30, 2012. On the day of her birth, her biological
mother, K.S., who had a history of mental health problems,
was admitted to in-patient psychiatric care at the hospital,
where she remained hospitalized until December 13, 2012. The
hospital contacted the Child and Family Services Agency
("CFSA"), and social worker Sarah McDonald was
assigned to E.S.'s case. However, K.S.'s treating
psychiatrist, Dr. Thomas Cummings, Jr., prevented access to
K.S. by CFSA social workers and K.S.'s attorney because
of K.S.'s inability to make legal decisions. On November
16, 2012, E.S. was discharged from the hospital and into the
temporary care of the O.s, who were licensed pre-adoptive
November 18, 2012, CFSA held a Family Team Meeting
("FTM") to develop a case plan for E.S. Because
K.S. remained hospitalized, she could not participate in the
meeting. However, E.S.'s maternal grandmother (D.W.),
maternal aunt (J.E.), maternal uncle (E.W.), and E.S.'s
GAL, Mindy Leon, attended the meeting along with B.S.W. and
S.E.W. ("the W.s"), who were not biologically
related to K.S. but had been identified by D.W. as potential
adoptive parents for E.S. Social worker Sarah McDonald and
supervising social worker Eleanor Sanders also attended the
meeting, Ms. Sanders asked E.S.'s family members if they
were willing to have E.S. placed with them temporarily or if
they were interested in adopting E.S., and none of the family
members were willing or able to do so. The W.s, however,
expressed their interest in adopting E.S. The W.s, who
resided in Virginia, were not licensed foster parents, so
they agreed to begin the licensing process, which was
expected to take about four months. The result of the meeting
was a goal for potential reunification with K.S., and
alternatively, adoption by the W.s.
November 19, 2012, CFSA filed a neglect petition with the
Family Court Division of the Superior Court, which entered an
order formally placing E.S. in temporary foster care with the
O.s. Social worker Ms. McDonald then attempted to schedule
visits between K.S., E.S., and both of the potential adoptive
families, the O.s and the W.s. On January 22, 2013, K.S. was
taken to meet the W.s at CFSA; K.S.'s mother, D.W., was
also present at this meeting. This was also around the time
that court authorized visitation between E.S. and the W.s
began. Ms. McDonald supervised the visit, and during the
visit, K.S. told Ms. McDonald that the W.s might be a good
fit for E.S. At this visit, K.S. appeared anxious and
fidgety, and had blood stains in and around her ears, which
she admitted were a result of self-injury. K.S. cancelled her
January 8, 2013 visit that was planned with the O.s as well
as the December 31, 2012 and February 5, 2013 visits
scheduled with E.S. Although Ms. McDonald attempted to
schedule other dates, K.S. "wasn't sure that she
wanted to do that."
February 27, 2013, E.S. was adjudicated neglected under D.C.
Code § 16-2301 (9)(A)(ii) and (iii) (2012 Repl.),
the trial court committed E.S. to agency care for a period
not to exceed two years. The trial court set concurrent
permanency goals for both reunification with K.S. and for
adoption. The trial court noted that K.S. had a long medical
and mental health history. K.S. suffered a traumatic brain
injury at age nineteen. She had a history of substance abuse,
mood symptoms, attention deficient disorder, and had
previously been hospitalized on at least two occasions for
psychiatric reasons. Dr. Cummings diagnosed K.S. with mood
disorder, not otherwise specified, and psychosis, not
otherwise specified, and stated that K.S. continues to
require inpatient psychiatric hospitalization. The trial
court therefore determined that K.S. was "unable to
discharge her responsibility to and for the child due to her
hospitalization, mental incapacity, and lack of compliance
with mental health treatment." Additionally, K.S. had
little to no contact with E.S. since her discharge, and had
not made any efforts to inquire about E.S.'s well-being,
or provide any information about possible placement resources
for E.S. The trial court also noted that K.S. had not made
any "efforts to have someone else care" for E.S.
during the time she was hospitalized, and that E.S. was
"without proper parental care or control."
Petitions for E.S.'s Adoption
2, 2013 when E.S. was seven months old, the O.s filed a
petition to adopt E.S. In that same month, on May 29, 2013,
the W.s filed a petition to adopt E.S. K.S. was served with
both adoption petitions in September 2013, while she was
living in New York. Meanwhile, E.S.'s visitation with the
W.s increased. On June 5, 2013, the trial court approved of
unsupervised visits with the W.s, and on June 28th, the court
authorized overnight visitation. In early July 2013, E.S.
began weekend overnight visits with the W.s.
August 2013, the W.s obtained their license as foster parents
in Virginia. Prior to the W.s being approved, social worker
Amy Costello conducted a child- specific kinship home
study. Ms. Costello testified about the many
concerns she had regarding placing E.S. with the W. family,
who already had four boys with various mental health needs
and learning disabilities. Ms. Costello also had concerns
about S.E.W.'s anxiety levels and the fact that she
"was a little needy with this baby and how much she
wanted to care for the baby . . . almost like getting her own
needs met through this, this baby . . . ." After Ms.
Costello raised her concerns with her supervisor, she was
told "there was a strong raising of the fact that the
family was kin." Ms. Costello then approved the home
study with the understanding that there would be safeguards
in place to mitigate her concerns. She testified that she
would not have approved the home study had the W. family not
been identified as kin.
in a letter dated August 21, 2013, CFSA notified the O.s of
its intent to change E.S.'s placement to the W.s'
residence. On August 27, 2013, the O.s and the GAL requested
a Fair Hearing to challenge and stay CFSA's change in
placement. The Fair Hearing took place over the course of six
days between September 27, 2013 and January 17, 2014. On
March 7, 2014, the Fair Hearing examiner ruled in favor of
the O.s and GAL, finding that CFSA had failed to show by a
preponderance of evidence that removal was in E.S.'s best
interest. However, overnight visits between E.S. and the W.s
K.S.'s Consent to Adoption by the W.s.
to the Fair Hearing, Kathleen Ambroso, the newly assigned
social worker from March to October 2013, arranged with one
of K.S.'s friends, Mr. Coefed, for K.S. to be brought to
CFSA from New York to attend the hearing in order to
"involve [K.S.] in the case." Ms. Ambroso also
testified that her "understanding of the fair hearing
was about placement to determine whether E.S. would be placed
with the W.s."
September 27, 2013, the first day of the hearing, K.S. met
with Ms. Ambroso, and Zachary Schaeffer, the shadowing social
worker slated to take over K.S.'s case, at the CFSA
offices. Ms. Ambroso discussed E.S.'s living arrangement
with K.S. and talked about the two families who were seeking
to adopt E.S; she used simplified legal vocabulary in her
explanations to K.S and "just gave her an over-arching
status of the case and the fact that there were two parties
involved and the status of the petitions were being discussed
in court." Initially, K.S. exhibited confusion about
which family E.S. was residing with, and indicated to Ms.
Ambroso that she believed her daughter was residing with the
Ms. Ambroso clarified that E.S. was currently living with the
O.s and was having visits with the W.s. She showed K.S.
photos of the W.s from the January 22, 2013 visit in an
attempt to explain the situation.
Ambroso also simplified the current living arrangement in her
explanation to K.S. in an effort to communicate the amount of
time E.S. was spending with each family, explaining that E.S.
spends her weeks with the O.s and her weekends with the W.s,
even though this was not the exact schedule. She did not
explain how long this arrangement had been in place, even
though overnight visits of two nights every other week with
the W.s had begun recently in July of 2013. Ms. Ambroso then
asked K.S. if she wanted to meet with the potential adoptive
families, and helped K.S. develop questions for the families.
met with the O.s and S.E.W. for about fifteen minutes each at
CFSA.During her meeting with the O.s, E.S. was
sleeping. After meeting with the O.s and S.E.W., K.S. told
Ms. Ambroso that she wanted additional time to make a
decision. Ms. Ambroso then told K.S. not to feel
pressured and that she could not make a wrong decision. K.S.
again exhibited confusion about where her daughter was
residing, stating that she wanted her daughter to be adopted
by the W.s because she was living with them
longer. Ms. Ambroso clarified the living
situation again, explaining the percentage of time E.S. spent
with both families, and that she was living with the O.s.
K.S. then told Ms. Ambroso that she wanted E.S. to continue
visiting with both families and that she needed more time to
make a decision on which family to choose for adoption. Ms.
Ambroso explained that the "current visitation schedule
was not an appropriate, long-term solution" and that it
"was not an option to just continue visiting with both
families." She told K.S. that if she did not consent,
the decision about E.S.'s permanent placement would be
made in court.
Ambroso then spoke with K.S.'s attorney, Madhavan Nair,
at which time K.S. told Mr. Nair that she did not want to
consent that day. Mr. Nair reiterated what Ms. Ambroso
"had said about the upcoming court hearings and the
importance of her being involved in the case." Ms.
Ambroso also asked Mr. Nair to explain the different court
hearings to K.S., after which Ms. Ambroso again reiterated
her statement about E.S.'s permanent placement being
decided in court. Ms. Ambroso's testimony at this point
was a bit unclear-she stated that K.S. told her that
"she didn't want to consent today, that she -."
When prompted to complete her thought, Ms. Ambroso added,
"-wanted to be the one to make the decision on
E.S.'s permanency" and "wanted to consent to
point, Ms. Ambroso left the conversation, testifying that
"consent was a matter between her [K.S.] and her
attorney." Ms. Ambroso subsequently took Mr. Nair
and K.S. to the CFSA notary, where K.S. signed a written
statement of consent, which was notarized that same day and
filed for the adoption case.
October 18, 2013, the trial court changed the permanency goal
for E.S. from reunification to adoption. That same day, the
O.s and GAL filed a motion seeking to have K.S.'s consent
excluded, claiming that K.S. lacked mental capacity to give
consent as shown by her "bizarre
behavior" on the day she consented. The motion
also asserted that K.S. was not fully informed and was
coerced by third parties into giving consent. On November 15,
2013, the trial court denied the motion to exclude K.S.'s
K.S.'s Attempts to Withdraw Her Consent to Adoption by
early November, K.S. contacted her sister J.E as K.S. was
coming into town. During this conversation, K.S. told J.E.
that she had given custody to the family with four boys that
had E.S. since birth. J.E. then went to pick up K.S., who
wanted to get a present for E.S. in addition to new earplugs,
a new headband to cover her ears, and an X-ACTO knife, which
J.E. did not allow her to purchase.After picking out a
present for E.S., J.E. took K.S. to visit with E.S. at the
O.s' home. On the drive over to the O.s' home, J.E.
explained to K.S. that K.S. had signed papers for the W.
family, and that this was not the family E.S. had been with
since birth. J.E. understood that K.S. was fragile and did
not want K.S. to be surprised that E.S. was currently
residing with the O.s, who had actually had E.S. since birth.
the visit with E.S. at the O.s' home, K.S. told the O.s
that she did not know that E.S. had been residing with them
the entire time. K.S. expressed to her sister, J.E., that it
would be traumatic for E.S. to be moved, and that she wanted
E.S. to remain where she had lived all along. Following the
meeting, on November 11th and November 18th, K.S. left two
voicemail messages for her attorney, Mr. Nair, stating that
she did not want E.S. to be moved, that she wanted E.S. to
stay with the O.s, and that she had met the O.s at their home
and liked them. Mr. Nair attempted to contact K.S., but was
not able to reach her because she did not leave a valid
November 21, 2013, Mr. Nair filed a praecipe with the trial
court detailing the voicemails that he had received from K.S.
On November 25th, the O.s and the GAL renewed their motion to
revoke K.S.'s consent, arguing that K.S.'s consent
was based on a mistake of fact and was involuntary, due to
her mental illness. Attached to their motion was an affidavit
from J.E. attesting that K.S. was mistaken about the family
with whom E.S. had been ...