January 17, 2019
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.
Thorpe, guardian ad litem for appellee D.T., filed a
statement in lieu of brief.
Thompson, Beckwith, and McLeese, Associate Judges.
Thompson Associate Judge
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), 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
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. 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
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.
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). 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.
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. 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.
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
thereafter appealed Magistrate Judge Albert's decision.
Associate Judge Carol Ann Dalton affirmed Magistrate Judge
Albert's February 27, 2018, order.
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
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
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. 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.
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." 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
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."
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.
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[.]" 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 ...