Argued
January 23, 2019
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
FERREN, SENIOR JUDGE
Appellant
M.W., the biological father of minor child Z.W., appeals the
trial court's change of Z.W.'s permanency goal from
reunification with appellant to adoption.[1] Because we find
no abuse of discretion in the trial court's 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 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
court's 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 o Parenting Skills o 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 court's official file
because of a glitch in the court's 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 judge's 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 family's 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]
• 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 agency's monitoring and
interventions to support Z.W.'s safety, placement, and
well-being, (including his medical and developmental needs
and services). She noted the agency's 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 CFSA's 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 court's 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
court's 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
• Test prior to May 19, 2017
• Weekly testing thereafter until six consecutive tests
provided
4.
September 15, 2017 Disposition Review Hearing
M.W.
and his counsel were present at the September 15, 2017
hearing. Like the disposition hearing review order from the
May 2017 hearing, the order from the September 2017 hearing
indicates that an agency disposition report was filed, but a
case plan was not. The order also noted that "CFSA filed
a written notice of a request to change the permanency goal
to ADOPTION and an evidentiary permanency hearing has been
scheduled." And, like the orders from the two prior
quarterly hearings, the September 2017 order noted, at the
top of the first page, that that permanency hearing was
scheduled for December 4, 2017.
The
magistrate judge's order included findings that the
agency had engaged in "reasonable efforts," through
its social workers, toward reunification based on their
visits with Z.W. to monitor his well-being and his transition
to B.W.'s foster-care home; their efforts to attend to
Z.W.'s medical and developmental needs, including speech
and language therapy; their enrollment of Z.W. in day care;
and their efforts to assess and refer M.W. to other services
and programs. M.W. objected to the reasonable efforts
findings, although the basis for his objection was not
explained.
The
magistrate judge also made findings that M.W. himself had not
made "progress" toward reunification, based on his
failure to complete the recommended DV program (Man 2 Man),
visit Z.W. consistently, or drug test as ordered. M.W.
likewise objected to these findings, asserting that that he
had a job and housing, had completed a parenting course, was
visiting Z.W. regularly, and was not ordered to complete the
Man 2 Man DV course until that day. Yet, M.W. had indeed been
ordered to complete Man 2 Man prior to that day. At the
January 2017 hearing, the magistrate judge had ordered M.W.
to undergo a DV assessment and specifically mentioned the
agency's referral of M.W. to Man 2 Man. And, at the May
2017 hearing, the magistrate judge had ordered M.W. to follow
the recommendations of the DV assessment, explicitly
referring to Man 2 Man. In fact, M.W.'s counsel
represented at the May 2017 hearing that M.W. had begun
attending the Man 2 Man course and enjoyed it.
In sum,
in the September 2017 hearing order, the magistrate judge
required:
• Visitation
• Visitation supervised by CFSA or its designee
• Visitation must be separate from mother and not at her
home
• Orders
• Drug testing (weekly)
• APRA [Addiction Prevention and Recovery
Administration] assessment and any recommended drug treatment
• Completion of Man 2 Man program
• Consistent visitation
• Participation in Z.W.'s speech therapy
• Services
• DV counseling: Man 2 Man
• Drug testing
• Spot test on September 20, 2017
• Weekly testing thereafter
• APRA assessment and compliance with ...