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In re Petition of J.O.

Court of Appeals of The District of Columbia

December 12, 2017

In re Petition of J.O. & P.O., Appellants.

          Argued June 14, 2017

         Appeals 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.

          Mindy Leon, guardian ad litem.

          Melissa Colangelo, Children's Law Center, as amicus curiae.

          Sharon A. Singh, for appellees.

          Karl 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 Columbia.

          Before Blackburne-Rigsby, Chief Judge, Glickman, Associate Judge, and Reid, Senior Judge.


          Blackburne-Rigsby, Chief Judge.

         This 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").

         On 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.

         Under 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.).[1]

         I. Factual Background

         A. E.S.'s Placement in Foster Care and Permanency Goals Set for Her Case

         E.S. was born prematurely at Georgetown University Medical Center on October 30, 2012.[2] 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 foster parents.

         On November 18, 2012, CFSA held a Family Team Meeting ("FTM")[3] 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.[4] Social worker Sarah McDonald and supervising social worker Eleanor Sanders also attended the meeting.

         At 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.

         On 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."

         On February 27, 2013, E.S. was adjudicated neglected under D.C. Code § 16-2301 (9)(A)(ii) and (iii) (2012 Repl.), [5] and 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."

         B. Petitions for E.S.'s Adoption

         On May 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.

         In 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.[6] 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.[7]

         Thereafter, 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 continued.

         C. K.S.'s Consent to Adoption by the W.s.

         Prior 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."

         On 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 W.s.[8] 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.

         Ms. 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.

         K.S. met with the O.s and S.E.W.[9] for about fifteen minutes each at CFSA.[10]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.[11] 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.[12] 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.

         Ms. 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 the W.'s."

         At this point, Ms. Ambroso left the conversation, testifying that "consent was a matter between her [K.S.] and her attorney."[13] 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.[14]

         On 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"[15] 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 consent.

         D. K.S.'s Attempts to Withdraw Her Consent to Adoption by the W.s

         In 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.[16]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.

         During 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 telephone number.

         On 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 ...

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