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In re K.C.

Court of Appeals of The District of Columbia

January 31, 2019

In re K.C.; D.C., Appellant.

          Submitted September 18, 2018

          Appeals from the Superior Court of the District of Columbia (NEG-84-15) (Hon. Janet Albert, Magistrate Judge) (Hon. John F. McCabe & Hon. Julie H. Becker, Reviewing Judges)

          Jennifer A. Renton was on the brief for appellant D.C.

          Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and Pamela Soncini, Assistant Attorney General, were on the brief for appellee.

          Allison Federoff, Children's Law Center, guardian ad litem, was on the brief for appellee K.C.

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

          Washington, Senior Judge.

         Appellant D.C., the biological mother of minor child K.C., seeks review of orders suspending her visitation with K.C. (Case No. 16-FS-899), changing K.C.'s permanency goal to adoption (Case No. 17-FS-1250), and terminating her parental rights (Case No. 18-FS-578).[1] These appeals were consolidated and, pursuant to D.C.'s unopposed motion, were submitted without oral argument. For the reasons that follow, we affirm the orders.

         I. Factual and Procedural Background

         Because these cases come to us after three years of extensive and intertwined factual developments and court proceedings, we set out the factual background and procedural posture in some detail.

         A. Removal from the Home

         On January 7, 2015, the District of Columbia Child and Family Services Agency ("CFSA" or "the Agency") received a call on its child abuse and neglect hotline regarding K.C., who was seven years old at the time. The caller alleged that K.C.'s mother, D.C., had serious mental health issues that were interfering with K.C.'s educational needs, as D.C. had enrolled and withdrawn K.C. in twelve schools, though he was only in second grade, and noted that K.C. could not read. CFSA opened a Family Assessment case, then converted the case to a Child Protective Services Investigation four days later upon learning that D.C. had just transferred K.C. to another school again.

         Over the next few weeks, Katie Grodin, an Agency social worker, met with K.C. at school twice, with D.C. several times, including at her home, and with staff at two of the schools that K.C. had attended. She also reviewed school records and consulted with a CFSA medical abuse/special needs liaison. D.C. appeared to be paranoid and delusional, as she believed, without any evidence, that her son was being mentally and physically abused at school, and, as a result, repeatedly moved him between schools. It also became apparent that K.C. was significantly academically and developmentally delayed, as he had missed significant periods of schooling as a result of the many school changes he had experienced - by Grodin's count, a total of sixteen placements, including public schools, charter schools, and homeschooling options.

         On March 10, 2015, CFSA received a report that K.C. had gotten into a fight with another student outside of a supermarket near the school, and that, when the students' parents and the police met at the school to discuss the incident, D.C. accused the principal of attacking her with a sword. Grodin again interviewed D.C. at her home the next day, where D.C. made further allegations against various school officials, including that they were falsely imprisoning and bribing K.C. Two days later, another CFSA social worker met with K.C. at home, though she had to interview him in front of D.C., as D.C. would not allow him out of her presence.

         On March 16, CFSA removed K.C. from D.C.'s home and placed him in foster care. Agency staff completed a Child Abuse and Neglect Complaint and Referral Form the same day, and, on March 18, submitted a petition to open a neglect case in Superior Court.

         On March 18 and 19, Magistrate Judge Janet Albert held an initial hearing and issued orders. The court granted D.C. weekly visitation with K.C., to be supervised by CFSA staff, with the conditions that D.C. was not to discuss the case with K.C., and D.C. was not to visit K.C.'s school except for arranged meetings or in the company of a social worker. The court also ordered D.C. to submit to drug testing, to have psychiatric and psychological evaluations done at the Department of Behavioral Health Assessment ("DBH") Center, and to follow the recommendations of the evaluations. Shortly thereafter, on the motion of K.C.'s guardian ad litem ("GAL"), the court issued an order on April 21 appointing a surrogate parent for educational purposes, who could make educational decisions for K.C.

         The court likewise ordered psycho-educational and speech and language evaluations for K.C., and ordered that he follow the recommendations of the evaluations. The initial evaluation showed that K.C. had significant academic, social, and emotional deficits, including specific learning disorder with impairment in reading, adjustment disorder with mixed disturbance of emotions and conduct, and low average IQ, including low and very low scores on cognitive functioning and achievement functioning tests. The evaluation also identified strengths and potential areas of growth, and recommended several services and interventions for K.C. At some point, K.C. was also diagnosed with Attention Deficit Hyperactivity Disorder and oppositional defiant disorder, which was consistent with the fact that he was considered a bully at school and had displayed aggressive behaviors toward others on several occasions.

         On June 11, 2015, D.C. entered a stipulation that K.C. was a neglected child, due to being left without proper education required by law. On June 19, Magistrate Judge Albert held a disposition hearing, at which she found that the Agency had made reasonable efforts to allow K.C. to return safely home, but that returning home at that time would be contrary to K.C.'s best interests. She set a permanency goal of reunification, meaning that CFSA was required to work to reunify K.C. with D.C., with the goal date set as May 15, 2016. The hearing order did not indicate that a CFSA case plan had been filed or attached, but specified:

The Mother shall participate in the following services in order to be considered for reunification with [K.C.]:
Individual Therapy and related services recommended by the provider;
Psychiatric consultation for possible medication;
Parenting Classes;
Medical examination to include a neurological assessment;
Allow the social worker to conduct a home assessment;
Attend educational and medical appointments for [K.C.].

         In addition to issuing the written order, the magistrate judge addressed D.C. orally in court, advising her of these requirements. The June 19 order also reiterated and expanded upon the conditions for D.C.'s supervised visitation with K.C., stating that D.C. was not to discuss the case with K.C., make disparaging remarks about any party (including the foster parent, school staff, or social workers), or whisper to K.C. during the visits.

         Following the June 19, 2015 disposition hearing, the court conducted periodic review hearings in the neglect matter, including on September 29, 2015, January 7, 2016, March 17, 2016, May 19, 2016, November 1, 2016, and April 13, 2017. D.C. was present at these hearings, and the magistrate judge informed her orally and in writing of the steps that she was required to take toward reunification.

         B. The Plan for Reunification

         In the months after K.C. was removed from the home, the Agency attempted to work with D.C. on a plan to reunify her with K.C., pursuant to the March 19 and June 19 orders. However, D.C. was resistant to engaging with the Agency on the plan. Mary Gordon, the CFSA social worker assigned to the case from the initial hearing in March of 2015, consistently attempted to discuss with D.C. what was required of her and what services she should be receiving, but D.C. refused to review the case plan that Gordon presented to her or to meet with Gordon to discuss the plan. At one point, D.C. even refused to give Gordon her phone number. Still, Gordon communicated the plan requirements to D.C.'s attorney and, because she was supervising D.C.'s visitation with K.C., used the visits to remind D.C. of the requirements. Both Gordon and Tania Abdulahad, the CFSA social worker who took over the case from Gordon in April of 2016, discussed court-ordered services with D.C. on many occasions.

         D.C. did have psychiatric and psychological evaluations done at the DBH Assessment Center in May of 2015, which resulted in her being diagnosed with delusional disorder and child neglect by a DBH psychiatrist and psychologist. However, while both evaluations recommended that D.C. engage in weekly individual therapy sessions, and while the court had specifically ordered D.C. to follow the recommendations of the evaluations, D.C. appeared to refuse therapy, asserting that she did not need mental health assistance.

         For example, on somewhere between five and twelve occasions, Gordon attempted to provide D.C. with the information for the Access Helpline, a CFSA service that connects individuals with mental health service providers, but D.C. refused to accept it, alleging that any services associated with CFSA would be biased against her.[2] Gordon also tried to discuss mental health services with D.C. several times, but she would always refuse. Several months later, Gordon discovered that D.C. had, in fact, been seeing her own personal therapist, Dr. James Ballard. However, when Gordon attempted to speak with him, D.C. would not waive her physician-patient privilege, so Gordon was initially unable to determine what services Dr. Ballard was providing and how the treatment was progressing. After the court issued an order waiving the privilege on December 31, 2015, and after making several attempts to contact him, Gordon finally spoke with Dr. Ballard in April of 2016. Based on what he shared with her, Gordon expressed her concerns to Dr. Ballard that he was not treating D.C.'s underlying mental health issues related to the neglect case, as he was treating her based solely on her self-reported situation[3] - without any attempt to review outside information, verify facts, or address her deficits, despite her diagnosis of delusional disorder. Gordon then provided Dr. Ballard with relevant information in an attempt to persuade him to change his approach, but he was unwilling to do so. Gordon then recommended to D.C. that she switch therapists, but D.C. refused. At some point later in 2016, D.C. did connect with Contemporary Family Services, another service provider, for mental health treatment, but, as with Dr. Ballard, she did not disclose the nature or scope of her situation, and the staff there were not made aware of D.C.'s involvement with CFSA until months later, just before a court hearing in 2017 at which a Contemporary Family Services employee was called to testify by D.C.

         D.C. completed a neurological evaluation and a home assessment, and she also took parenting classes. She likewise attended some educational meetings and medical and dental appointments for K.C. However, she refused to attend an educational meeting regarding K.C.'s individualized education plan, turning away from Gordon when Gordon attempted to hand her a letter about it, and, at an educational meeting that D.C. did attend, she refused to acknowledge K.C.'s educational needs and insisted that he could read and did not need remedial assistance. Moreover, she was disruptive during the medical and dental appointments she attended, including by banging on a door, taking a threatening tone with providers, and stating repeatedly that K.C. was being abused by school staff, such that CFSA staff eventually informed her that she would no long be permitted to attend certain appointments.

         D.C.'s visitation with K.C. was also tense. From March of 2015 on, K.C. remained in foster care and had weekly visits with D.C. For the first year, those visits were supervised by Gordon. Although K.C. was initially hesitant to see his mother and uncomfortable with the visits, the Agency made efforts to continue the visitation. Gordon eased K.C. into the visits by initially making them quite short and then increasing them to one hour. Gordon developed a signal with K.C. - a tap on the nose - that he could use to indicate when he wanted the visit to end early, and he did this at least twice toward the beginning of visitation. D.C. resisted allowing Gordon into her home for the visits, despite the court order allowing the Agency access to the home. For that reason, the visits often took place at a playground near the CFSA building, or, at D.C.'s request, in the lobby of the CFSA building.

         While K.C. gradually adjusted to the visits, they became increasingly difficult and problematic over time due to D.C.'s disruptive behavior. More specifically, D.C. would interrogate K.C. regarding whether anyone at school had hurt him, videotape him and state that he was being abused at school, disparage Gordon and the Agency to K.C., accuse the foster family of not feeding K.C. (including in front of other people in the CFSA lobby), whisper to K.C. in contravention of the court's order, and behave in a verbally and physically aggressive way toward Gordon. In one instance, D.C. showed K.C. pictures of several school staff on her phone and asked him to identify anyone who had abused him. During another visit, when K.C. told D.C. that he had a black eye as a result of getting into a fight with another child at school, D.C. insisted that the vice principal at the school had hit him and she made a child abuse hotline report about it. On yet another occasion, D.C. told K.C. to hit anyone who touches him, including Gordon and his foster mother. D.C. also shouted at Gordon and lurched toward her, and, during a visit with D.C. at which her adult son was present, D.C. and the adult son apparently pressured K.C. to falsely accuse his foster mother of mistreating him by forcing him to wash her feet and clean her room. Gordon consistently instructed D.C. to stop engaging in these behaviors, and the court repeatedly ordered D.C. not to engage in these behaviors at the review hearings, but she continued to do so. Gordon eventually scheduled a meeting with her supervisor, D.C., D.C.'s lawyer, and the government attorney to discuss D.C.'s inappropriate behavior during the visits. Gordon noted some improvement in D.C.'s conduct after the meeting, but her inappropriate behavior continued.

         Initially, K.C. appeared to be adjusting well to foster care and responding well to play therapy. However, as the visits with D.C. grew more difficult over the ensuing months, K.C.'s behavior in his foster home and at school worsened considerably, and he began skipping school and displaying aggressive behavior toward other students, school staff, his therapist, and his foster family. In April of 2016, the night after the visit in which D.C. and her adult son pressured K.C. to falsely accuse his foster mother of mistreatment, K.C. tried to choke his foster brother before running out of the house at night. He was found by the police, and was then psychiatrically hospitalized at Children's National Medical Center. Following a visit from his mother while he was in the hospital, K.C. again lashed out, becoming aggressive toward hospital staff and ripping a door off its hinges.

         C. Suspension of Visitation

         As a result of D.C.'s behavior immediately prior to and during K.C.'s psychiatric hospitalization, as well as its effect on K.C., on April 4, 2016, the government, representing the Agency, and supported by K.C.'s GAL, moved for temporary suspension of visitation. On April 11, the GAL also moved to appoint K.C.'s foster mother as his medical decision-maker. Magistrate Judge Albert held an emergency hearing on visitation and, on April 12, issued an order temporarily suspending D.C.'s visitation, and set dates for a hearing on visitation and permanency. After the temporary order was issued, but before the hearing was held, K.C. was psychiatrically hospitalized again, during which time the government moved for an emergency order authorizing the administration of medication to K.C., as D.C. refused to allow K.C. to be medicated while at the hospital. The magistrate judge issued the order on April 29.

         Magistrate Judge Albert conducted a full evidentiary hearing regarding visitation on May 11, 16, and 19, 2016. The magistrate judge heard testimony from Tiffanie Coates, K.C.'s play therapist at the time; Gordon, the CFSA social worker on the case from the time of K.C.'s removal until April 29, 2016; and Tania Abdulahad, the CFSA social worker who took over from Gordon and was the social worker on the case at the time, all of whom testified on behalf of the government. She also heard testimony from Dr. James Ballard, D.C.'s psychologist; Darryl Lasley, a CFSA family support worker who had assisted Gordon by supervising about a dozen visits between K.C. and D.C.; and D.C. herself, all of whom testified on behalf of D.C.

         On May 23, 2016, the magistrate judge issued an order suspending visitation. In assessing the credibility of the witnesses at the hearing, she found Gordon's testimony to be the most compelling and credible. She also credited Coates' and Abdulahad's testimony, and, while she credited Lasley's testimony, she found it to be of limited relevance, given the limited number of visits he supervised and the fact that he did so in a more observational role, without much interaction with D.C. or K.C. By contrast, the court found Dr. Ballard's testimony to be "utterly lacking in credibility," given that he had never seen D.C. and K.C. together, had in fact never met K.C., and had never attempted to verify information provided to him by D.C. using collateral sources, which the court found "curious," given D.C.'s delusional diagnosis.

         The magistrate judge then made specific and detailed findings of fact regarding what had transpired during one year of visitation, reflecting the developments discussed above. The court also found that D.C.'s behavior had a negative effect on K.C., and that, as a result of the visits, K.C. became less communicative and more disrespectful and aggressive. The magistrate judge took note of the play therapist's professional opinion regarding the effect that behaviors like D.C.'s could have on a child, including encouraging the child to tell lies, disrespect authority, and manipulate people. Based on these findings, the court concluded that D.C.'s behavior was "emotionally damaging and confusing" for K.C., and that visits were "very detrimental" to him, as evidenced by his recent "out of control behavior" following visits by his mother. Thus, continuation of visits at that time would not be in K.C.'s best interests. The court ordered that visitation be suspended until further notice - with the specific caveat that the Agency, the GAL, and K.C.'s therapist must revisit the issue quarterly to determine if visitation would no longer be detrimental and could be reinstated. It also issued an order on May 20 appointing K.C.'s then-foster mother as his medical decision-maker.

         D.C. then filed a motion for review by an associate judge of the Superior Court, requesting review of the May 23 order suspending visitation. There is no indication that D.C. attempted, while the motion was pending, to make a showing to the Agency that visits would no longer be harmful to K.C., or to request that the Agency move the Court to reinstate visitation. And, while the treatment team in fact assessed the visitation issue monthly, it determined that D.C.'s visits would still be detrimental to K.C., and did not decide to reinstate visits. Therefore, her visits never resumed.

         On August 4, Associate Judge John McCabe affirmed the May 23 order, concluding that "Magistrate Judge Albert conducted a thorough evidentiary hearing and did exactly the type of thoughtful, comprehensive analysis that is required by In re Ko.W., 744 A.2d 296 (D.C. 2011)." D.C. then appealed Judge McCabe's order to this court, though, due to delays as a result of D.C. changing counsel and moving for extensions of time, briefs were not filed until late 2017.

         D. Permanency Goal Change to Adoption

         In addition to suspension of visitation, Magistrate Judge Albert ruled on K.C.'s permanency goal. On May 19, the last day of the three-day evidentiary hearing on visitation in May of 2016, the court also held a permanency hearing. The magistrate judge then issued an order on May 24, 2016 - the day after the May 23 order suspending visitation - in which she changed K.C.'s permanency goal from reunification to adoption. Pursuant to this court's December 8, 2016 decision in In re Ta.L., 149 A.3d 1060 (D.C. 2016) (en banc), the magistrate judge revisited the permanency goal change in 2017. Because the Agency had, in the meantime, filed a motion to terminate parental rights on July 8, 2016, the court held hearings that functioned as both a retroactive Ta.L. inquiry into the permanency goal change and a trial on termination of parental rights ("TPR").

         The hearings were held on July 17-19, 24, and 26, and August 23 and 31, 2017, and the magistrate judge heard testimony from Gordon; Abdulahad; Jakob Klaus, a social worker with Family Matters of Greater Washington, who took over from Abdulahad in October of 2016; Dr. Seth King, a DBH psychologist; Michelle Dodge, K.C.'s play therapist at the time; and Sonique Nixon, a CFSA adoption recruiter, all of whom testified on behalf of the Agency. She also heard testimony from D.C.; Dr. Ballard; Shirlene Wood Walker, a program manager with Contemporary Family Services; Natalee Hollowell, a program manager with Collaborative Solutions for Communities; Dr. Allen Gore, a psychiatrist; and Ms. G.A., K.C.'s then-foster parent, all of whom testified on behalf of D.C.

         On September 29, 2017, Magistrate Judge Albert issued an order affirming the prior goal change, in which she conducted an analysis pursuant to Ta.L and concluded that the permanency goal for K.C. should remain adoption. She made extensive factual findings regarding the progress of the case over the preceding two years, and, based on these ...


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