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In re J.M.

Court of Appeals of The District of Columbia

September 20, 2018

In re J.M. & D.M.; S.M., Appellant.

          Argued April 18, 2018

          Appeals from the Superior Court of the District of Columbia (NEG-339-15, NEG-340-15) (Hon. Noel Johnson, Trial Judge) (Hon. Jennifer M. Anderson, Reviewing Associate Judge)

          Lauren B. Schwartz for appellant S.M.

          Jon S. Pascale filed a statement in lieu of brief, for appellee K.L.

          Pamela Soncini, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Acting Solicitor General at the time the brief was filed, and Stacy L. Anderson, Acting Deputy Solicitor General at the time the brief was filed, were on the brief, for appellee District of Columbia.

          Abraham Sisson, guardian ad litem, with whom Katherine McGiffin and Ileah Welch, guardians ad litem were on the brief, for appellants J.M. and D.M.

          Before Thompson and Beckwith, Associate Judges, and Pryor, Senior Judge.

          THOMPSON, ASSOCIATE JUDGE.

         S.M. (the "Mother"), the birth mother of the minor children J.M. and D.M. (the "children"), challenges a decision of the Superior Court that changed the permanency goal for the children from concurrent goals of reunification with S.M. and adoption to a sole goal of adoption. The Mother contends that the District of Columbia (the "District") did not show by a preponderance of the evidence that a permanency-goal change to adoption was supported by the factors this court outlined in In re Ta.L., 149 A.3d 1060 (D.C. 2016) (en banc). The District and the children's guardian ad litem (the "GAL") defend the goal change. The District and the GAL also contend that a review in 2017 of the October 2016 permanency-goal change (in response to the Mother's March 2017 request for a Ta.L. hearing) was not authorized by Ta.L., and the GAL argues in addition that neither a review by a Superior Court associate judge nor these consolidated appeals were authorized by Ta.L. under the circumstances of this case (i.e., a change from adoption as one of the concurrent permanency goals to adoption as the sole permanency goal). For the reasons set out below, we affirm the judgment of the Superior Court retaining the sole goal of adoption as the children's permanency goal.

         I.

         On August 19, 2015, after receiving a hotline referral, a District of Columbia Child and Family Services Agency (the "agency" or "CFSA") social worker found the Mother and the children, who at the time were ages three and eleven months, respectively, living in the Atlas Glass factory on Kenilworth Avenue, N.E., where there were open blades and speckles of glass on the floor, no furniture, and a temperature of almost 100 degrees. The agency arranged for emergency housing for the family at a hotel.

         On August 24, 2015, a social worker visited the family at the hotel and observed that D.M. had two black eyes as well as other visible injuries. The children were then transported to a hospital where they were examined by a physician. The physician found that the children did not have good hygiene; that J.M. had a scar on his ankle that was consistent with a burn mark, and had more than ten skin markings about the size of finger tips on his trunk, back, arms, and legs, most likely caused by J.M.'s having been "grabbed too hard"; and that D.M. had a bruise on each eye, lacerations on her legs, a marking on her thigh that looked like a healed scar from a burn, and swelling on her frontal scalp caused by a recent head trauma. D.M. told a CFSA social worker that the Mother had hit her.

         In an initial hearing on August 27, 2015, the magistrate judge ordered that the children be placed in shelter care. After a hearing on November 9, 2015, the children were adjudicated neglected and were committed to the custody, care, and control of CFSA. The magistrate judge established concurrent goals of reunification with the Mother and adoption and stated that "[i]n order for the children to safely return home[, ] the [M]other must demonstrate the capacity to keep the children safe through successful and consistent visitation." The Mother had a history of mental illness; according to the parties' briefs, she had been diagnosed with bipolar disorder and schizophrenia. The magistrate judge noted that the agency had made a referral for the Mother to undergo a mental health evaluation. On February 24, 2016, the magistrate judge found that the Mother had yet to complete a mental health assessment and parenting classes, had not visited with the children on a regular basis, and for two months had not had contact with the agency. The magistrate judge retained the concurrent goals of reunification and adoption, but ordered a mental health evaluation. On June 30, 2016, the magistrate judge found that the Mother had completed the mental health assessment but "ha[d] refused the recommended services from the evaluation."

          On October 12, 2016 - two months before this court issued its en banc opinion in Ta.L. - the court held a permanency hearing and at the conclusion changed the children's permanency goal from reunification concurrent with adoption to adoption only. The order changing the permanency goal stated the following rationale:

The [M]other has not engaged with therapeutic services as recommended. She has not demonstrated an ability to safely parent the [children] by moving towards unsupervised visits. To date, the [M]other remains noncompliant with services and her contact with the agency has been minimal to non-existent. She visited only once with the [children] since July 2016. [She] resists engaging in therapy and/or signing release of information to allow the social worker to communicate with service providers.

         Thus, as the magistrate judge later summarized, he made the October 2016 permanency-goal change upon a determination that the Mother "had failed to engage in recommended services and attend visits with the [children] consistently."

         On March 17, 2017, the magistrate judge granted the Mother's request for an evidentiary hearing on the permanency-goal change pursuant to Ta.L. The court ordered that the evidence at the hearing would pertain to the time period from the inception of the case until October 12, 2016, when the permanency goal was changed.[1] The Mother does not challenge that ruling in these appeals.

         The magistrate judge presided over a two-day hearing on May 22 and July 6, 2017. The court heard testimony from Stephanie Gittinger, the social worker who was assigned to the case in August of 2015; from Lucy Aderibigbe, the social worker assigned to the case starting at the end of February 2016; and from Julius Ngole (the only witness called by the Mother), who identified himself as a community support worker with a service agency known as MBI. Mr. Ngole testified that his role was to "[e]ducate [the Mother] about her services, encourage [the Mother] to engage in receiving the mental health services," and "[m]ak[e] sure that [the Mother was] in compliance with what is required of her." Although the Ta.L. hearing was the Mother's opportunity to "testify, under oath concerning any alleged failure on the District's part to provide the requisite services and resources" and to testify about her "own efforts to meet the goals set forth in the plan that was developed to promote reunification," Ta.L., 149 A.3d at 1079, the Mother was not present for any portion of the proceedings on May 22 and did not testify during the hearing.

         Following the hearing, the magistrate judge affirmed the permanency-goal change to adoption in an order dated July 18, 2017. The magistrate judge first determined that the "[g]overnment [had] provided the parents with an appropriate and reasonable plan for achieving reunification." See id. at 1078. The magistrate judge cited "the circumstances of removal"[2] (i.e., the Mother's "history of mental health issues," "allegations of physical abuse," and "the family's lack of appropriate housing") and Ms. Gittinger's "in depth" explanation of the "agency's rationale for each of its plan requirements" (including that "all three of [the Mother's] older children had been removed from her care due to allegations of neglect that stemmed, at least in part, from her mental health issues"). The magistrate judge observed that "the agency case plan focused on improving [the Mother's] mental health, coping skills, and daily parenting behavior," maintaining the parent-child bond, and on the Mother's securing safe and appropriate housing. Finding that the case-plan requirements were "narrowly tailored to help [the Mother] remedy the circumstances that led to the [children's] removal" and to help her "parent the children on her own safely," the magistrate judge concluded that the agency's plan for reunification was "reasonable and appropriate."

         The magistrate judge next found that the government had "expended reasonable efforts to reunify the family." More specifically, the magistrate judge found that the agency had "made reasonable efforts to communicate the requirements of the plan" to the Mother (in that, at every visit, both Ms. Gittinger and Ms. Aderibigbe "spoke with [the Mother] about the plan requirements and the importance of complying with services"). The magistrate judge also found that the agency had "made reasonable efforts to assist [the Mother] in achieving the goals of the plan." The magistrate judge noted that social workers referred the mother to MBI for individual therapy and mental health services, made referrals to MBI's housing program and CFSA's parent advocacy program for parenting classes, encouraged the Mother to participate in anger management and parenting skills classes, ensured that visits with the children were scheduled at times and locations most convenient for the Mother, "reach[ed] out . . . by phone, text, as well as through family" when the Mother failed to attend visits with the children, and provided transportation and accompanied the Mother to assist her to obtain housing.

         Further, the magistrate judge found that the Mother "failed to make adequate progress toward satisfying the requirements of the case plan to achieve the goal of reunification." The court found that while the Mother "completed a mental health evaluation . . ., she failed to engage in any of the recommended services including individual therapy, parenting skills classes, and anger management classes." The magistrate judge noted that Mr. Ngole (who testified that the Mother participated in a mental health day program "akin to group therapy" "[s]ometime in 2015") was "unable to . . . describe her level of compliance with individual therapy prior to the . . . goal change" or to say "if [the Mother] had participated in individual therapy at all prior to the goal change." The court also found that the Mother "stopped attending visits altogether in July and August 2016," that the agency's multiple attempts to contact the Mother during that period were unsuccessful, and that the Mother had attended only a single visit with the children in September 2016.

         Finally, the magistrate judge found that the agency had adequately explored vehicles for avoiding pursuit of termination of parental rights, specifically, kinship placements. The court noted that the agency had been unable to pursue one of the children's maternal aunts as a placement resource because the aunt "never followed up on the agency's referral [for assistance with finding the larger housing she would need to accommodate the children] or obtained larger housing." The magistrate judge found that the Mother ...


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