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In re D.T.

Court of Appeals of The District of Columbia

December 26, 2019

In re D.T.; J.T., Appellant.

          Argued January 17, 2019

          Appeal from the Superior Court of the District of Columbia (NEG253-16) (Hon. Carol Ann Dalton, Reviewing Judge) (Hon. Janet Albert, Trial Judge)

          Kimberly Glassman 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 Caroline S. Van Zile, Deputy Solicitor General, were on the brief, for appellee District of Columbia.

          Robyn Thorpe, guardian ad litem for appellee D.T., filed a statement in lieu of brief.

          Before Thompson, Beckwith, and McLeese, Associate Judges.

          OPINION

          Thompson Associate Judge

         This appeal is brought by J.T., the birth mother of now eleven-year-old D.T., who was removed from J.T.'s home in 2016 and adjudicated neglected. A Superior Court magistrate judge (the Honorable Janet Albert) initially established reunification with J.T. as D.T.'s permanency goal, but, several months later, changed D.T.'s permanency goal to concurrent goals of reunification and guardianship, and thereafter to a sole goal of guardianship. After an evidentiary hearing (which the court and the parties referred to as a Ta.L. hearing[1]), the court subsequently changed D.T.'s permanency goal to adoption. This appeal by J.T. followed after the reviewing associate judge (the Honorable Carol Ann Dalton) affirmed that permanency-goal change.[2]

         J.T. argues that the record did not permit the Superior Court to find by a preponderance of the evidence that the District of Columbia Child and Family Services Agency ("CFSA" or "the agency") established a reasonable case plan, made reasonable efforts toward reunification of D.T. with J.T., and adequately explored kinship placement alternatives to adoption, or to find that J.T. failed to make adequate progress toward reunification.[3] For its part, appellee District of Columbia ("the District") urges us to hold that the Superior Court's ruling was not a final, appealable decision and that we therefore lack jurisdiction over this appeal. The District further argues that even if this court has jurisdiction, J.T. has forfeited any claim that CFSA failed to provide adequate reunification services and that J.T.'s claims otherwise fail on the merits.

         For the reasons that follow, we conclude that we have jurisdiction over this appeal. We affirm the associate judge's ruling upholding the permanency-goal change to adoption.

         I.

         D.T. was removed from J.T.'s custody on August 5, 2016, because of J.T.'s drug use (specifically, her "chronic use of PCP and marijuana," including while D.T. was in her care), her inadequate supervision of D.T., and her inappropriate conduct in disciplining D.T. (including using her unshod foot to "kick push[]" him in the face).[4] On September 9, 2016, J.T. stipulated that D.T. was neglected within the meaning of D.C. Code § 16-2301(9)(A)(ii), (iii) (2019 Supp.). The court committed D.T. to the custody of CFSA, set a goal of reunification with J.T., and ordered J.T. to undergo psychological and psychiatric evaluations (including an extended psychiatric evaluation by the Department of Behavioral Health ("DBH")), to comply with all recommendations from those evaluations, and to undergo regular drug testing. J.T. was allowed supervised visitation with D.T.

         On April 6, 2017, the trial court added a concurrent goal of guardianship, reasoning that J.T. "had not engaged in the [mental health and substance abuse] services identified to achieve reunification." On August 16, 2017, over the District's objection that D.T.'s permanency goal should be changed to adoption, the court changed the goal from reunification to guardianship with Mr. S. At a permanency hearing on January 3, 2018, the District again asked the court to change the permanency goal to adoption.[5] On February 26, 2018, the court held an evidentiary hearing to determine whether to order that goal change. The court heard testimony from CFSA social worker Daniel Morris and from J.T.[6]

         On February 27, 2018, Magistrate Judge Albert issued a "Goal Change Order" that changed the permanency goal to adoption. She found that the agency had provided J.T. with a reasonable plan to achieve the goal of reunification and expended reasonable efforts to help J.T. achieve reunification, but that J.T. had repeatedly tested positive for drugs or missed the required weekly drug testing, refused to participate in an Addiction Prevention and Recovery Administration ("APRA") assessment or drug treatment, rejected the agency's offers of assistance in arranging mental health services, lacked self-awareness about her drug addiction and mental health issues, was unable to complete the court-ordered extended mental health evaluations because of her lack of sobriety, refused to sign waivers to allow the agency to learn of her treatment plan and progress when she did begin to receive therapy, did not share with her therapist information about the neglect case, and had been unable to progress toward unsupervised visitation with D.T. because of her unaddressed mental health and substance abuse problems.

         J.T. thereafter appealed Magistrate Judge Albert's decision. Associate Judge Carol Ann Dalton affirmed Magistrate Judge Albert's February 27, 2018, order.

         II.

         This court has jurisdiction over all "final orders and judgments of the Superior Court of the District of Columbia[.]" D.C. Code § 11-721(a)(1) (2013 Repl.). We have said that "an order is usually not final unless it completely resolves the case." In re K.M.T., 795 A.2d 688, 690 (D.C. 2002), overruled on other grounds by Ta.L., 149 A.3d at 1076. "In the context of neglect proceedings . . ., finality has generally been held to mean either a restoration of physical custody, a termination of parental rights, or an adoption." Id. at 690. "An order that is merely a step toward one of those acts is therefore not final and appealable." Id. In Ta.L., however, this court overruled K.M.T. with regard to orders changing permanency goals from reunification to adoption. Ta.L., 149 A.3d at 1075-76. We held that such orders are immediately appealable because they "effective[ly] sever[]" the parent-child relationship. Id. at 1075.

         The District argues that we should dismiss this appeal for lack of jurisdiction because it does not challenge an order changing the child's permanency goal from reunification to adoption. Instead, the District emphasizes, J.T.'s appeal is from an order that changed D.T.'s permanency goal from guardianship to adoption. Thus, the District argues, this case does not "fit into the narrow exception for interlocutory review carved out in Ta.L."

         This court considered a similar argument in In re J.M., 193 A.3d 773 (D.C. 2018), in which a mother sought review of a decision of the Superior Court that changed the permanency goal from concurrent goals of reunification and adoption, to a sole goal of adoption. Id. at 777. We concluded that "the holding of Ta.L., allowing an immediate appeal of a permanency-goal change to adoption, applie[d] in th[at] circumstance[] . . . ." Id. at 781. We explained that we "discern[ed] in the majority opinion in Ta.L. an intent to afford an evidentiary hearing and an immediate appeal whenever there is a permanency-goal change resulting in a sole goal of adoption[, ]" so as to "enable parents to present any . . . evidence that they believe supports a decision to continue with reunification efforts" and to avoid "a permanency goal decision that might lead to a situation that destroys family bonds." Id. (quoting Ta.L., 149 A.3d at 1079) (internal quotation marks and added emphasis omitted). At least the latter rationale is applicable here.[7] In addition, there is another reason why we conclude that we have jurisdiction. As more fully explained below, the Superior Court treated this matter, and the parties litigated it, as if the challenged ruling were an order changing D.T.'s permanency goal from reunification to adoption.[8]

         During the evidentiary hearing, the District's questioning of social worker Morris focused on Mr. Morris's communications to J.T. about "what she needed to do to unify with the child," "what needed to happen to achieve reunification[, ]" and the progress J.T. was making "towards reunification." Further, while Magistrate Judge Albert recognized that the matter was before her on the District's request to change D.T.'s goal of guardianship to a goal of adoption, she proceeded on an understanding that "[t]hroughout the life of a neglect matter, the [c]ourt is required to determine whether reasonable efforts have been made to achieve reunification with parents."[9] Consistent with that understanding, the Goal Change Order reasons that "[r]eunification is not viable when a parent is unable to have unsupervised contact with her child" and concludes that J.T. was "unable to make sufficient progress toward reunification[, ]" that "there is insufficient reason to believe that [J.T.] is addressing the mental health barriers to reunification[, ]" that J.T. "has failed to ameliorate [her drug-use] barrier to reunification[, ]" and that J.T. "has made reunification an unattainable goal."[10]

         In seeking review by an associate judge of Magistrate Judge Albert's ruling, J.T. filed a motion entitled "Motion for Review of Magistrate Judge's Order Changing the Permanency Goal from Reunification to Adoption" (emphasis added). The brief in support of J.T.'s motion argued that CFSA failed to set up a reasonable plan to achieve reunification and failed to expend reasonable efforts to help J.T. achieve reunification, and asserted that J.T. "made adequate progress . . . to achieve the goal of reunification[.]" The District argued in its opposition (entitled "Memorandum of Points and Authorities in Support of the District of Columbia's Opposition to Motion for Review of Magistrate Judge's Order Changing the Goal From Reunification to Adoption") that CFSA provided J.T. with a reasonable plan to achieve reunification, that the agency made reasonable efforts "to support the mother in achieving reunification[, ]" and that J.T. failed to make adequate progress toward achieving the goal of reunification. And far from objecting to J.T.'s focus on the goal change from reunification to adoption, the District argued that review by the associate judge would be the forum to "assess[] the [a]gency's efforts in total to achieve the plan for reunification."

         Reviewing Associate Judge Dalton identified the motion before her as a "Motion for Review of Magistrate Judge's Order Changing the Respondent's Permanency Goal from Reunification to Adoption[.]" Affirming Magistrate Judge Albert's ruling and rejecting J.T.'s contention that the magistrate judge abused her discretion by finding that the District "proved it made reasonable efforts towards reunification[, ]" Judge Dalton found that the District provided a reasonable plan for reunification and expended reasonable efforts to reunify the family, but that J.T. failed to make adequate progress toward satisfying the plan.

         On this record, we conclude that the issue of whether the record supported a goal change from reunification to adoption was "expressly or impliedly tried by consent of the parties[.]"[11] To state the point differently, by consent of the parties, Judge Dalton was asked to review whether Magistrate Judge Albert abused her discretion in ordering (in steps, over the course of several months) a change in D.T.'s permanency goal from reunification with J.T., to adoption. That having been the issue resolved by the Superior Court on the basis of the February 26, 2018, evidentiary hearing, we are satisfied that we have jurisdiction to hear this ...


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