In re Z.W.

         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 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

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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 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

• 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 court’s

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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]

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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 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

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• Test prior to May 19, 2017