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In re Petition of J.O.

Court of Appeals of The District of Columbia

January 11, 2018

In re Petition of J.O. & P.O., N.B. & Ki.B., Appellants.

         Appeals from the Superior Court of the District of Columbia (ADA-116-14) (Hon. Noel T. Johnson, Magistrate Judge) (Hon. Craig Iscoe, Reviewing Judge)

          Argued October 18, 2016

          Carla S. Rappaport for appellant N.B.

          Leslie J. Susskind for appellant Ki.B.

          Patricia M. Spicer for appellees J.O. and P.O.

          Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, Loren L. AliKhan, Deputy Solicitor General, and Rhondalyn Primes Okoroma, Assistant Attorney General, filed a statement in lieu of brief in support of appellees.

          Charles Feezor, guardian ad litem, filed a statement in lieu of brief.

          Before Fisher and Thompson, Associate Judges, and Ruiz, Senior Judge.

          Ruiz, Senior Judge.

         This appeal concerns the petition of appellees J.O. and P.O. to adopt K.B., which was granted on June 15, 2015. Appellants N.B. And Ki.B. (Mr. B. and Ms. B.), who are the child's natural parents, separately appeal the adoption. Mr. B. challenges the waiver of his consent to the adoption, and Ms. B. the denial of her motion to revoke her consent to the adoption. We conclude that the trial court's determination that Mr. B. is an unfit parent and that he withheld his consent contrary to the best interests of the child was not an abuse of discretion. We also conclude that the finding that Ms. B.'s consent was voluntary is supported by the record. Therefore, we affirm the grant of the O.'s adoption petition.


         K.B. was born on October 23, 2011. When he was ten months old, K.B. was removed from appellants' care by the Child and Family Services Agency following Ms. B.'s arrest for possession of marijuana. He was placed with appellees as foster parents the same day. The government alleged that K.B. was a neglected child within the meaning of D.C. Code § 16-2301 (9)(A)(iii), and appellants stipulated to his neglect in November 2012.[1]

         Initially, K.B.'s permanency goal was reunification with his parents, and the court ordered parenting classes and drug-testing services for appellants. However, citing concerns about appellants' continued substance abuse and failure to consistently visit K.B., the court changed the goal to adoption by the appellees on January 7, 2014. On June 24, 2015, the appellees filed a petition for adoption.

         A. Trial Court Proceedings as to Mr. B.

         The trial court heard a great deal of testimony about Mr. B.'s history of mental illness and substance abuse. Dr. Seth King, a psychologist who completed evaluations of both appellants in November 2012 (two years prior to trial), testified about his evaluation of Mr. B. Dr. King diagnosed Mr. B. with schizophrenia, major depressive disorder, post-traumatic stress disorder, and marijuana and nicotine dependence. He based these diagnoses on Mr. B.'s reports, mental health records, and symptoms observed during the evaluation. Dr. King testified that Mr. B. rated a 40 (on a zero to 100 scale) on the Global Assessment of Functioning, which "indicated] that he was having some symptoms of mental health problems, difficulties, which affected his stability and his functioning." Dr. King expressed concern that Mr. B.'s mental health symptoms and use of marijuana "would interfere with a person's ability to focus effectively, consistently, to be able to care for a child's needs." He also opined that ongoing treatment "would be a step in the right direction, " but that he would still have concerns about Mr. B.'s long-term parenting ability even with treatment. Dr. King noted that he was troubled by Mr. B.'s reliance on Ms. B. as part of his support system in parenting K.B., since he felt that, in light of Ms. B.'s own issues with mental illness and substance abuse, this meant there would be times when there was no stable adult in the household.

         Amanda Giordano, Mr. B.'s case manager at Community Connections since July 2014, testified about Mr. B.'s ongoing mental health treatment. Ms. Giordano testified that Mr. B., who had been diagnosed through Community Connections with schizoaffective disorder and poly substance dependence, received the most intensive level of services available. He was a "model consumer" of treatment who regularly attended his appointments and was medication-compliant. She described his symptoms as "a tendency to be tangential, a little disorganized in his thought process and speech, " but said that those symptoms had decreased during the time she had been working with Mr. B. However, she also testified that she had become concerned about Mr. B.'s possible substance use after noticing that he seemed disoriented during meetings.

         Mr. B. testified that he had been in treatment for schizophrenia for twenty years. He acknowledged that he had used marijuana in accordance with his Rastafarian religion, but testified that he stopped using it when the court ordered him to in connection with the neglect proceeding in 2012 and had been clean for two years. Mr. B. testified that he had instead been smoking K2, a form of synthetic marijuana. The records of Mr. B.'s court-ordered drug testing (between August 28, 2012, and November 18, 2014) indicated that he had tested positive twice, had tested negative nineteen times, and had missed sixteen tests; the lab did not test for synthetic marijuana.[2]

         The court also heard testimony about Mr. B.'s relationship with K.B. India Ford, the ongoing social worker in K.B.'s neglect case, testified that since K.B. was placed in foster care in August 2012, Mr. B. initially engaged in court-ordered weekly visitation, but failed to appear for his visits between September and December 2013, and again between March and July 2014.[3] She also testified that, when she asked Mr. B. in November 2013 why he was not visiting, he said that he "thought that [the Child and Family Services Agency] had taken [K.B.] away, like it was just a done deal at that point." He said he was "sad" about K.B. Ms. Ford reassured him that he could "absolutely have visitation." Mr. B. visited K.B. after December 2013 until his incarceration in March 2014.[4] He did visit consistently once he resumed visitation again after July 2014, and did not miss any visits. During his visits, Mr. B. was energetic and engaged with K.B., and K.B. was typically happy to spend time with his father. K.B. called Ms. B. "mommy, or mama, " and Mr. B. "daddy, or dad." However, Ms. Ford testified that in the two months before her trial testimony, K.B. had cried until he was put back in the car to leave the visit.

         The magistrate judge found that Mr. B. was not a fit parent. The judge cited Mr. B.'s mental health diagnoses and Dr. King's concerns about Mr. B.'s reliance on Ms. B., who also has mental health and drug issues, and found that "absent a support system involving a constant, appropriate adult presence, the father's mental health issues render him presently unable to safely care for [K.B.]." He also cited Mr. B.'s "refusal to abstain from mind-altering substances" and found that Mr. B. had not "sufficiently addressed his substance abuse issues." The magistrate judge concluded as follows:

The father's mental health and substance abuse issues, combined with his lapses in visitation and his inability to articulate a plan for resuming care of the respondent make plain that he is not presently capable of caring for the child. Furthermore, the evidence established that there is very little chance that he will become ready to do so in the foreseeable future. The father has been engaged with services designed to address his issues for an extended period of time now, and has not made sufficient progress. As such, the Court finds by clear and convincing evidence that the father is not a fit parent.

         The magistrate judge also found that, weighing the statutory factors to be considered for termination of parental rights, Mr. B. had withheld his consent to the adoption contrary to K.B.'s best interests.[5] As such, he ruled that Mr. B.'s consent should be waived pursuant to D.C. Code § 16-304 (e), and that adoption by the appellees is in K.B.'s best interests. The associate judge affirmed the trial court's finding of parental unfitness and determination to waive the father's consent, and Mr. B. filed this appeal.

         B. Trial Court Proceedings as to Ms. B.

         Similar testimony was presented about Ms. B.'s ability to care for K.B. Dr. King, who evaluated Ms. B. in 2012, and Dr. David Ault (Ms. B.'s treating psychologist at Green Door) both testified that Ms. B. had been diagnosed with major depressive disorder; post-traumatic stress disorder; and alcohol, cannabis, and tobacco use disorders. Dr. Ault also testified about Ms. B.'s alcohol consumption, including the fact that her alcoholism was not considered to be in remission because she had not been alcohol-free for the past twelve months. He also reported that Ms. B. had had alcohol-induced seizures, which were being treated with medication, and that she had suffered from occasional memory lapses, auditory hallucinations, and unexplained anger attacks. Ms. Ford, the social worker in the neglect case, testified about Ms. B.'s relationship with K.B., and about her decision to recommend supervised visits after Ms. B. relapsed by drinking, during an overnight unsupervised visit K.B. had with his parents in August 2013, and passed out and assaulted Mr. B.'s sister.

         The foregoing testimony took place during the first three days of trial in November 2014. When trial resumed on January 12, 2015, the proceeding opened with P.O.'s testimony. P.O. testified about her family's relationship with K.B. and about his health and developmental delays. She testified that K.B. had exhibited some delays in his physical development, including not walking until he was eighteen months old, but that he was now "doing fine in that area." She also stated that K.B. had some "language delays, and maybe some cognitive delays." For example, at three years old, K.B. should have been able to speak in complete sentences, but he only used one word sentences, "more like . . . where a child would be functioning if they were a year and a half." P.O. previously worked as a school psychologist and was a special education teacher for fifteen years. She testified that she was "working with [K.B.] at home every day" to address his delays, and that she was considering the possibility of speech and language therapy in the future. P.O. also testified that, if the adoption petition were granted, she would want K.B. to maintain some contact with appellants, because she wanted him "to know who [his] biological parents are" and "to have a good healthy relationship with them." Appellees have another adopted child, who has maintained contact with his birth mother since his adoption. After P.O.'s testimony was concluded, Ms. B.'s attorney, Kathryn Graham, informed the court before the luncheon recess that she hoped to speak with Ms. B. as soon as she was able to return to the courtroom.

         When the trial resumed after lunch, Ms. B. asked the court if she could have a different lawyer, and said that she already knew who she wanted to represent her. The court denied her request, stating that it would be disruptive "in the middle . . . of a multi-day trial" to bring in a new lawyer. Ms. B. then asked if Ms. Graham could "receive assistance from another attorney, " which the court also denied as "[un]necessary." Ms. B. gave no further grounds for her request, nor did the trial judge inquire as to the reason. After Ms. Graham consulted with the trial judge about the proper procedure, the court asked her to file a motion to withdraw so that it could be noted on the record.

         Ms. Graham and appellees' attorney then asked for a ten-minute recess so that Ms. B. and P.O. could speak with each other off the record. After this recess, Ms. Graham indicated that the conversation was "really beneficial" and that Ms. B. "is not prepared to consent [to the adoption] right now, but, is contemplating it."

         Ms. B. took the stand the next day, January 13, 2015. She testified about her history of substance abuse and the steps she had taken towards sobriety, as well as about her mental health. Ms. B. testified that she was "a hundred percent committed" to her sobriety and mental health treatment. She also stated that having K.B. back was "the most important thing in the world" to her. Ms. B. admitted that she had recently been incarcerated, and that she was currently on probation and had at least one criminal charge pending against her at the time. She also testified about her struggles with relapses, but stated that she had been alcohol-free for the past eleven months. On cross-examination, Ms. B. was questioned about her pending criminal charges, and about her alcohol use and the relapse she had during one of K.B.'s unsupervised overnight visits.

         The court adjourned for the day before Ms. B.'s testimony was finished, so she took the stand again on the morning of January 14, 2015. K.B.'s guardian ad litem briefly cross-examined Ms. B. regarding her alcohol use while she was pregnant with K.B. Ms. B. testified that this was a planned pregnancy and that she had stopped drinking and smoking marijuana as soon as she became aware that she was pregnant, which occurred "within a month."[6] On redirect examination, Ms. B. stated that she would ensure K.B.'s safety with "a stable family support system" if she were to relapse again. She testified about the positive changes she had made in her life in order to be better able to parent K.B., including abstaining from substance use, taking her medication, and having a stable relationship with Mr. B., which she described as "a loving committed relationship where we put our children's needs first, and foremost before our own." Ms. B. concluded her testimony as follows:

[I am a] hundred percent committed to my sobriety. I want my sobriety because I want to get better. I want a better life for myself, for my kids, for my future. I plan to go back to school. I have a lot of aspirations that will keep me focused on wanting, and having a better life for myself, and for my kids.

         As soon as Ms. B.'s testimony was concluded, and before closing arguments began, Ms. Graham asked the court for a brief recess to consult with her client. After conferring with Ms. B. for just over one minute, Ms. Graham informed the court that "at this time my client has indicated that she wishes to consent to the adoption." She further indicated that Ms. B. had "reviewed the consent, and we have talked about it at length, this week, and this morning before court." The court was surprised, given the testimony that Ms. B. had just completed, and Ms. Graham stated, "I'm telling her this is her opportunity." Ms. B. then spoke up, telling the court that she "want[ed] the best for [her] son, " ...

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