In re Petition of J.O. & P.O., N.B. & Ki.B., Appellants.
from the Superior Court of the District of Columbia
(ADA-116-14) (Hon. Noel T. Johnson, Magistrate Judge) (Hon.
Craig Iscoe, Reviewing Judge)
October 18, 2016
S. Rappaport for appellant N.B.
J. Susskind for appellant Ki.B.
Patricia M. Spicer for appellees J.O. and P.O.
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
Fisher and Thompson, Associate Judges, and Ruiz, Senior
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.
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.
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.
Trial Court Proceedings as to Mr. B.
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.
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.
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
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. 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. 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.
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
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.
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. 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.
Trial Court Proceedings as to Ms. B.
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.
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
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.
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
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
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." 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
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, " ...