IN RE Z.W. M.W., Appellant.
Argued
January 23, 2019
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Appeal
from the Superior Court of the District of Columbia
(NEG-390-16) (Hon. Julie Breslow, Magistrate Judge) (Hon.
Steven Wellner, Associate Judge)
Rosemarie Ricchiuto for appellant M.W.
Pamela
Soncini, Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Loren
L. AliKhan, Solicitor General, and Caroline S. Van Zile,
Deputy Solicitor General, were on the brief, for appellee the
District of Columbia.
Margie
M. Clark, guardian ad litem, for appellee Z.W.
Before
Glickman and Easterly, Associate Judges, and Ferren, Senior
Judge.
OPINION
Concurring
opinion by Senior Judge Ferren, with whom Associate Judge
Glickman joins, at page 1049.
Concurring
opinion by Associate Judge Easterly at page 1051-52.
Ferren,
Senior Judge:
Appellant
M.W., the biological father of minor child Z.W., appeals the
trial courts change of Z.W.s permanency goal from
reunification with appellant to adoption.[1] Because we find no
abuse of discretion in the trial courts ruling that a
preponderance of the evidence supports the goal change, we
affirm.
I. Factual and Procedural
Background
A. Removal from the Home
Z.W.
was born on February 5, 2015, and is the biological son of
mother M.G. and father M.W. On October 7, 2016, the District
of Columbia Child and Family Services Agency
("CFSA" or the "agency") received a call
on its child abuse and neglect hotline from the Metropolitan
Police Department, as the police had found Z.W., who was 20
months old at the time, alone at M.G.s home. M.G. was
charged with second-degree child cruelty, and was issued a
stay-away order prohibiting her from having contact with Z.W.
CFSA placed Z.W. in M.W.s care, informed him of the
stay-away order, and developed a safety plan with M.W. for
Z.W.s care. On October 25, 2016, agency staff again
discovered Z.W. alone in M.G.s home, where M.W. had left
him. CFSA removed Z.W. from the home that day, placed him in
shelter care, and filed a petition to open a neglect matter
in Superior Court.
B. The Neglect Matter
The
case came before Magistrate Judge Julie Breslow, who held an
initial hearing in October 2016, followed by a disposition
hearing in January 2017, at which she accepted M.W.s
stipulation that Z.W. was a neglected child. Two quarterly
disposition review hearings followed in May 2017 and
September 2017, and, finally, a permanency hearing occurred
in December 2017.[2] During this nearly fourteen-month
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period, there were three CFSA social workers on the case:
Michaela Henderson (from October 2016 to August 2017), Edgina
Sherman (from August to October 2017), and Molly Byrom (from
November to December 2017), all of whom were responsible for
working with the family to ensure the health, safety, and
well-being of the child and the parents. Meanwhile, Z.W. had
been placed initially in a traditional foster home (with a
non-relative). In June 2017, he was moved to the home of
B.W., who is M.W.s sister, where he stayed until November
2017, when B.W. indicated that she could no longer care for
Z.W. and arranged for relatives, the M.s, to foster him.
Because there is some dispute regarding what steps the court
ordered M.W. to take during this period, as well as when it
ordered him to take these steps and how much time it gave him
to comply, the specifics of each court order are laid out
below.
1.
October 28, 2016 Initial Hearing
At the
initial hearing on October 28, 2016, both M.W. and his
counsel were present, and Magistrate Judge Breslow made
findings that it was contrary to Z.W.s welfare to be in
M.W.s care because M.W. had left the child with M.G.,
despite knowing of M.G.s stay-away order, criminal charge,
and substance abuse. The courts order established the
following requirements for M.W. in the sections pertaining to
"visitation" and "services":
• Visitation between M.W. and Z.W.
• Visitation supervised by CFSA or its designee
• Services
• Parenting Skills
• Domestic Violence ("DV")
Assessment[3]
2.
January 13, 2017 Disposition Hearing
At the
disposition hearing on January 13, 2017, M.W. and his counsel
again were present. In the order issued at the disposition
hearing, the court took notice of a neglect stipulation that
M.W. had signed on December 16, 2016, stating that the
stipulation provided facts sufficient for the court to
adjudicate Z.W. neglected. The stipulation noted M.G.s
criminal case and the stay-away order; acknowledged the
incident in which M.W. left Z.W. with M.G.; and agreed that
Z.W. was a neglected child under D.C. Code §
16-2301(9)(A)(ii), due to having been left "without
proper parental care or control."
The
disposition hearing order contains a notation indicating that
the court took notice of a predisposition report from CFSA
and of a case plan prepared by CFSA. While the predisposition
report is included in the record on appeal, a written case
plan is not. It is unclear why the plan is missing, but a
later exchange between the court and the attorneys at the May
16, 2017 disposition review hearing confirmed that CFSA
social worker Michaela Henderson had prepared a written case
plan, which did not appear in the courts
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official file because of a glitch in the courts filing
system. However, both the magistrate judge and M.G.s counsel
acknowledged having a copy of the case plan stamped by the
Magistrate Judges Chambers. M.W.s counsel said that she
also thought she had the document, and Z.W.s guardian ad
litem said that she had a copy stamped by the Counsel for
Child Abuse and Neglect Office within the Family Court.
The
January 2017 disposition hearing order set out, at the top of
the first page, the dates for the upcoming disposition review
hearings (May 16, 2017 and September 15, 2017), as well as
the date for the permanency hearing (December 4, 2017). The
order also included the magistrate judges findings, based
upon the stipulation of neglect, that it was still contrary
to Z.W.s welfare to be in M.W.s care. She also made
findings that CFSA had made reasonable efforts to return Z.W.
safely to his biological familys home, stating that the
agency had facilitated visitation and that the social worker
was making efforts to improve agency communication with the
parents. M.W. objected to this communication finding, but the
basis for his objection is not explained. The magistrate
judge then made a notation in the "reasonable
efforts" section of the order that the social worker had
referred M.W. to "parenting, the Father Hood [sic]
Initiative and the Man 2 Man intervention
group,"[4] and that the social worker had begun
the DV assessment process. Finally, the magistrate judge set
the permanency goal for Z.W. as "reunification"
with a biological parent. Her order set out the following
requirements for M.W. in its sections pertaining to
"visitation," "orders," and
"services":
• Visitation between M.W. and Z.W.
• Visitation supervised by CFSA or its designee
• Orders[5]
• Cooperate with CFSA to ensure Z.W. receives audiology
screening and Strong Start referral (M.W. objected to this
order)
• No physical discipline
• Services
• Drug Testing[6]
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• Same-day spot-test
• If negative, future testing suspended
• If positive, weekly thereafter
• DV Assessment
3.
May 16, 2017 Disposition Review Hearing
At the
May 16, 2017 disposition review hearing, M.W. was not present
(for reasons that do not appear in the record), but his
counsel was. The order from the hearing indicates that the
agency filed a disposition report with the court in advance
of the hearing, but did not file a case plan. It is unclear
why a case plan was not filed, but, as noted earlier, there
was an exchange at this hearing which indicated that the
social worker had prepared a written plan and submitted it to
the court, but that, due to a technical glitch, that case
plan did not appear in the court file. The hearing order also
indicated, at the top of the first page, that the next
disposition review hearing was scheduled for September 15,
2017, and that a permanency hearing was scheduled for
December 4, 2017.
In her
order, the magistrate judge made findings that the agency had
thus far made "reasonable efforts" to reunify Z.W.
with M.W., based on the agencys monitoring and interventions
to support Z.W.s safety, placement, and well-being,
(including his medical and developmental needs and services).
She noted the agencys offering of supervised visits to the
parents; its efforts to help M.W.s sister obtain emergency
licensure as a foster parent; and its efforts to assess and
refer M.W. to various services and programs. M.W. objected to
these reasonable efforts findings. His counsel argued that
she did not know to which anger management class M.W. had
been referred, and that there had been a delay in CFSAs
referral of M.W. to a parenting class. M.W., however, was
already attending the parenting class at that point (and, as
discussed below, see infra section III.C, that class
included an anger management component that satisfied the
courts order).
The
magistrate judge also made findings that M.W. had made
"progress" toward the permanency goal of
reunification, based on his attendance at a parenting class
and his completion of a DV assessment, but she noted that
M.W. must complete any service recommended as a result of the
DV assessment, as well as the parenting class and an anger
management program.
The
courts order set out the following requirements for M.W.:
• Visitation between M.W. and Z.W.
• Visitation supervised by CFSA or its designee
• Visitation must be separate from mother and not at her
home
• Orders
• Anger management course
• Any service recommended by the DV assessment,
including Man 2 Man or other approved program
• Spot testing for drugs (available at the courthouse)
and continued testing until six consecutive negative tests
provided
• Regular visitation
• Engagement with speech therapist and participation in
Z.W.s speech therapy
• Services
• Drug Testing
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• Test prior to May 19, 2017