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In re A.I.

Court of Appeals of The District of Columbia

July 11, 2019

In re A.I.; I.I., Appellant.

          Argued May 15, 2018

          Appeal from the Superior Court of the District of Columbia (NEG-290-15) Hon. Julie Breslow, Magistrate Judge, Hon. Yvonne Williams, Associate Judge

          Adriane R. Marblestein-Deare for appellant.

          Rhondalyn Primes Okoroma, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Stacy L. Anderson, Acting Deputy Solicitor General, were on the brief, for appellee District of Columbia.

          Lauren B. Schwartz, guardian ad litem, was on the brief in support of appellee.

          Karen E. Dunkley for the father, S.M., filed a statement in lieu of brief.

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

          BLACKBURNE-RIGSBY, CHIEF JUDGE:

         Before us is appellant I.I.'s interlocutory appeal of the trial court's decision to change the permanency goal from reunification to adoption of the minor child, A.I. On appeal, the birth mother I.I. challenges the trial court's determination that the criteria for a permanency goal change were satisfied. In re Ta. L., 149 A.3d 1060 (D.C. 2016) (en banc). We affirm.

         I. Factual and Procedural Background

         On July 26, 2015, the mother, I.I., was involuntarily committed to Washington Hospital Center due to her symptoms and behavior resulting from her untreated mental illness. As a result of her involuntary commitment and a lack of an available caregiver, her then-five-year-old biological son, A.I., was placed into the custody of the Child and Family Services Agency ("CFSA"). Following a neglect hearing on October 20, 2015, A.I. was adjudicated a neglected child due to I.I.'s inability to care for A.I. based on her ongoing untreated mental illness. The trial court held a disposition hearing on October 29, 2015, set I.I.'s permanency goal of reunification with A.I., and ordered that reunification with A.I. was predicated on I.I. receiving mental health treatment for her diagnosed schizophrenia. However, after only four visits to the psychiatrist recommended by CFSA, I.I. ceased going. I.I. also refused to pursue any additional mental health treatment or medication. I.I. denied having a mental illness to her psychiatrist, to the social workers, and to the court.

         A.I. was in foster care from July 2015 until September 2016, [1] and the government petitioned the court to change A.I.'s permanency goal from reunification to adoption.[2] Consistent with this court's decision in Ta.L., [3] the magistrate judge held an evidentiary hearing and determined that the government met its burden of showing by a preponderance of the evidence that a goal change to adoption was in the best interests of the child. In re Ta.L., 149 A.3d at 1078-79. The magistrate judge's decision was affirmed on review by an associate judge of the Superior Court pursuant to Super. Ct. Fam. R. D(e).

         The magistrate judge held a four-day Ta.L. evidentiary hearing on April 17, May 11, July 17, and July 19, 2017, after which she affirmed her initial decision to change the permanency goal from reunification to adoption. The magistrate judge heard the following evidence. In August 2015, shortly after A.I.'s removal, the court ordered I.I. to undergo a mental health evaluation. In October 2015, following A.I.'s neglect adjudication, CFSA prepared a written case plan and submitted the plan to the court. I.I. refused to participate in the case planning process despite repeated efforts by CFSA to engage I.I. The court thereafter considered CFSA's case plan and the record evidence, and ordered I.I. to "[c]omply with recommended mental health services at Family Matters, including attending therapy regularly and meeting with [the] psychiatrist regularly," regularly attend supervised visitation with A.I., and follow the social worker's direction at visits.[4]

         Pursuant to the initial hearing order, I.I. met with Family Matters forensic psychiatrist, Dr. Bahram Panbehi, for the first time in late-September or early-October 2015, and then approximately three times thereafter. Dr. Panbehi diagnosed I.I. with schizophrenia, noting that I.I.'s paranoia was mostly directed at CFSA "for taking her kids away." Additionally, her paranoia was also directed at the court[5] and at germs, which led her to clean herself with abrasive and toxic household cleaning products such as hydrogen peroxide and bleach. Dr. Panbehi's reports contain allegations that she cleaned her children with household cleaning products and vaginal lubricant.[6] As part of I.I.'s treatment plan, Dr. Panbehi recommended "anti-psychotic medications" to treat her schizophrenia. Dr. Panbehi's medical opinion was that until I.I. was on medication, she would remain a risk to herself and others. However, after only four visits with Dr. Panbehi, I.I. ceased attending therapy, and either ceased taking her prescribed medication or never began taking it.[7]

         I.I.'s mistrust of CFSA contributed to the particularly poor relationship with the initially assigned social worker, Lauren DeAnna, who was assigned to the case in August 2015. I.I. requested that her attorney e-mail Ms. DeAnna instructing her not to contact I.I. I.I. also filed two civil lawsuits against Ms. DeAnna, which were dismissed. Ultimately, I.I. ceased all contact with CFSA by October 2015, when she also stopped attending regularly scheduled visits with A.I. I.I. reconnected with CFSA in February 2016 but still had sporadic periods of absence. Specifically, I.I. did not attend any visits with A.I. from November 13, 2015, until February 2, 2016, and for another month from February 3 to March 9, 2016. I.I. then attended three visits and stopped attending visits for another almost two months from April 6 to May 25, 2016. After I.I. reconnected with CFSA in February 2016, CFSA supervisors Elizabeth Bowman and Marla Belian were communicating with I.I. directly in light of I.I.'s refusal to communicate with Ms. DeAnna. Additionally, family support worker, Rhonda Davis, handled supervised visits with A.I. Despite efforts and support from the team of CFSA social workers, I.I. remained mistrustful of CFSA's help and services, and visits with A.I. remained sporadic. For example, in May 2016, CFSA supervisor Ms. Belian asked I.I. to participate in a family team meeting with the newly appointed social worker who replaced Ms. DeAnna, Brittani Hawkins, and I.I. declined. I.I. responded with an e-mail, alleging that she did not have a mental illness, and that CFSA had "set [her] up." Because of her strong relationship with A.I., Ms. DeAnna initially continued to work with A.I. until May 2016, when she was replaced by social worker Brittani Hawkins and then by social worker Tamika Jones.

         I.I. and social workers Ms. DeAnna and Ms. Jones testified at the Ta.L. hearing. The magistrate judge found both of the social workers to be knowledgeable and credible, and fully credited their testimony. The magistrate judge found I.I.'s testimony to be "rambling and unfocused and demonstrated a strange and persistent fixation on social worker Lauren DeAnna," and therefore, the magistrate judge did not assign I.I.'s testimony much weight. The magistrate judge found that I.I. was not adequately participating in mental health treatment nor consistently attending weekly supervised visitation with A.I., which in the magistrate judge's view demonstrated that reunification was not feasible. The magistrate judge further noted that, "two years after the child's removal from his mother, [I.I.] still seemed to be thinking unclearly and still seemed to be demonstrating the same symptoms of mental illness she has demonstrated throughout the case."

         Accordingly, the magistrate judge changed the permanency goal from reunification to adoption after she found, by a preponderance of the evidence, that the government had satisfied the three disputed factors set forth in this court's en banc decision in Ta.L., finding that: (1) CFSA provided I.I. "with a reasonable plan for achieving reunification," (2) CFSA expended "reasonable efforts" to support I.I. in meeting the goals set out in the reunification plan, (3) I.I. "failed to make adequate progress toward satisfying the requirements of that plan," In re Ta.L., 149 A.3d at 1078, and (4) CFSA "adequately explored" "other options for avoiding the termination of parental rights, including kinship placements," In re K.C., 200 A.3d 1216, 1235 (D.C. 2019) (citing In re Ta.L., 149 A.3d at 1078-79).[8] The magistrate judge found that adoption afforded A.I. the greatest level of stability and permanency, and was in his best interests. Regarding I.I.'s lack of progress toward achieving the goals required for reunification with A.I., the magistrate judge noted that "[t]he crux of the [] neglect matter is the incapacity of the parents." The magistrate judge explained that I.I.'s "incapacity was due to her untreated mental illness, which impaired her ability to parent A[.I.]" and that I.I.'s "need for mental health treatment was the single largest issue in this case."[9] On review, the associate judge affirmed the magistrate judge's decision to change the permanency goal in a written order. In her decision, the associate judge concluded that a primary focus of I.I.'s reunification plan for the duration of the case was treatment of her mental illness. Despite a written case plan identifying I.I. as in need of mental health treatment, access to treatment and encouragement to attend treatment by CFSA and the court, by the time of the permanency goal change hearing there was still "no evidence demonstrating that Ms. I[]'s mental health condition improved." This appeal followed.

         I. Legal Standard

         In this appeal, as we noted, I.I. challenges the trial court's determination that the criteria for a permanency goal change were satisfied. In re Ta.L., 149 A.3d at 1078-79. We first review the legal framework for a permanency goal change.

         The trial court has broad discretion when deciding permanency goal changes, and our review on appeal is limited to an abuse of discretion. In re H.C., 187 A.3d 1254, 1264 (D.C. 2018) (citing In re Ta.L., 149 A.3d at 1081). We review the trial court's legal conclusions de novo, and we defer to the trial court's factual findings unless they are clearly erroneous. In re J.O., 176 A.3d at 153 (citing D.C. Code § 17-305(a) (2001)). While this is an appeal of the associate judge's order, we review "the findings and conclusions of the fact finder [the magistrate judge] on which that ruling is based." Id. (internal citation omitted).

         In 1997, Congress enacted the Federal ASFA, which replaced the Adoption Assistance and Child Welfare Act of 1980 in response to "too many children [] languishing in foster care," with a focus on moving children "more quickly into permanent homes." In re Ta.L., 149 A.3d at 1076 n.19 (citing H.R. Rep. No. 105- 77, pt. 1, at 8); see supra note 2. In 2000, the District of Columbia amended its own child welfare laws based on the Federal ASFA. The Adoption and Safe Families Amendment Act of 2000, D.C. Law 13-136 (2000) ("DC ASFA"). We therefore look to the federal statute, and its legislative history and implementing regulations, as well as the District's statutes and regulations, to understand the operative legal framework. See Jenkins v. United States, 80 A.3d 978, 991 (D.C. 2013).

         We also look to our case law interpreting the District's ASFA. To change the permanency goal from reunification to adoption, the government bears the burden of showing by a preponderance of the evidence:

[1] that it has provided the parents with a reasonable plan for achieving reunification, [2] that it expended reasonable efforts to help the parents ameliorate the conditions that led to the child being adjudicated neglected, and [3] that the parents have failed to make adequate progress toward satisfying the requirements of that plan.

In re Ta.L., 149 A.3d at 1078. If the trial court finds that the government has satisfied its burden, a change of permanency goal from reunification to adoption is "presumptively consistent with the requirement that we act in the best interest of the child." Id. It is I.I.'s challenge to the trial court's determination that the government had carried its burden under this multi-factor test that concerns us in this opinion.

         We first consider the first factor, whether the government has proven that the case plan was reasonable. The federal law sets the standard requirements for a case plan for a child in the foster care system, the District of Columbia's law was created in the federal law's image, and the permanency planning policy illustrates how these statutory mandates manifest on a practical level. The District requires that CFSA "prepare a [case] plan for each child," D.C. Code § 4-1301.09(b) (2012 Repl.), which is defined as:

[A] written . . . plan for assuring that the child receives safe and proper care and that services are available to the parents, child, and foster parents in order to improve conditions in the parents' home, [and] facilitate return of the child to his or her own safe home or to the child's permanent placement . . . .

D.C. Code § 4-1301.02(3) (2012 Repl.); see 29 DCMR § 4700 (establishing the standards under which CFSA and its subcontractors shall engage in case planning).[10]Under the DC ASFA, the case plan must be "a written" "plan for assuring that the child receives safe and proper care and that services are available to the parents, child, and foster parents in order to improve conditions in the parents' home." DC ASFA, Title II, § 201 (codified at D.C. Code § 4-1301.02(3)(B)). Similarly, under 42 U.S.C. § 675(1) (2018):

The term 'case plan' means a written document which meets the requirements of section 675a of this title and includes [inter alia] . . . [a] plan for assuring . . . services are provided to the parents, child, and foster parents in order to improve the conditions in the parents' home, facilitate return of the child to his own safe home or the ...

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