In re C.L.O., Nos. 11–FS–727

• Citation: 41 A.3d 502
• Decision Date: 12 April 2012
• Docket Number: Nos. 11–FS–727,11–FS–898.
• Parties: In re C.L.O.;E.P., AppellantandIn re A.H.;E.P., Appellant.
• Court: Court of Appeals of Columbia District

41 A.3d 502

In re C.L.O.;E.P., AppellantandIn re A.H.;E.P., Appellant.

Nos. 11–FS–727

11–FS–898.

District of Columbia Court of Appeals.

Argued Dec. 14, 2011.Decided April 12, 2012.

Thomas C. Devlin, Washington, DC, appointed by the court, for appellant E.P.

Anthony C. Biagioli, with whom Paul M. Schoenhard, Washington, DC, was on the brief, for appellee C.L.O.

Murphy B. Henry, appointed by the court, filed a statement in lieu of brief for appellee K.H.Monica A. Myles, appointed by the court, Guardian ad litem for appellee A.H., filed a statement in lieu of brief.Stacy L. Anderson, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, and Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, filed a statement in lieu of brief, for appellee the District of Columbia.

Before GLICKMAN and OBERLY, Associate Judges, and FERREN, Senior Judge.

FERREN, Senior Judge:

This case presents the challenge by an unwed, noncustodial father—who was unaware of his child at birth—to the adoption of his child by her foster parent with the consent of the natural mother. After finding that clear and convincing evidence supported a court-ordered waiver of the father's required consent in the child's best interest, the trial court ordered the waiver and granted the adoption. Perceiving no abuse of the court's discretion, we affirm.¹

I. Statement of Facts and Proceedings

Beginning in the winter of 2006–2007, E.P. had a sexual relationship with K.H. The relationship ended after seven or eight months because E.P. disapproved of K.H.'s drinking habits. Not long thereafter, on October 6, 2007, K.H. gave birth to A.H.

For the first three months of her life, A.H. lived with her mother in homeless shelters. On January 28, 2008, the District's Child and Family Services Agency (CFSA) removed A.H. from her mother's care. On January 31, CFSA filed a petition for neglect, and A.H. was committed forthwith to the agency for placement in foster care.² On March 28, a magistrate judge granted the government's motion for constructive service of process on the unknown father, and a notice was posted on March 31 in the Juvenile and Neglect Clerk's Office for a period of two weeks stating “that a neglect proceeding has been scheduled” for A.H. “born to [K.H.] on October 6, 2007.” The notice ordered the unknown father to appear at the next scheduled hearing, with date and time provided, adding that he had a right to seek custody of the minor child, that he had a court-appointed attorney, and that failure to respond to the notice could result in the court proceeding without the father being present.

Five weeks later, on May 7, K.H. stipulated before the magistrate judge that her daughter, then seven months old, was a neglected child, and the judge entered an order to that effect. K.H. also submitted an affidavit of paternity that identified the father as either a man named E. or a man named N. She was unable to provide last names or any other identifying information, but she said that she could point out addresses where these men could be found.

District of Columbia law requires a hearing, within one year after a child's entry into foster care, to determine a plan for the child's permanent custody. ³ Accordingly, on May 21, 2008, the magistrate judge confirmed that the permanency goal was reunification of A.H. with her mother, K.H., and ordered the provision of appropriate social services to facilitate that goal. Three months later, on September 3, the magistrate judge reiterated that the permanency goal was reunification but recognized that the case was likely to move toward guardianship or adoption. Were that to happen, the natural father would have to either claim or waive his right to custody; ⁴ thus, the judge asked the parties to launch an effort to locate A.H.'s father. Thereafter, social workers were often unable to reach K.H., who also missed two appointments with the investigator assigned to locate the father. A court-appointed counsel for the unknown father also hired an investigator, who was unsuccessful in finding the father.

At a hearing on December 8, 2008, the magistrate judge ordered the permanency goal changed from reunification to adoption, and on January 16, 2009, a motion was filed ⁵ to terminate the parental rights of both K.H. and the child's father. Sometime in January, if not earlier, the petitioner, C.L.O., expressed an interest in adopting A.H., who was moved, as a result, from her first foster home to C.L.O.'s care on January 25. The child was a little over one year old. C.L.O. brought A.H. to medical and dental appointments, as well as to developmental, language, and speech assessments. Over the course of a year, social workers expressed satisfaction at several status hearings that, under C.L.O.'s care, A.H. was thriving and on target developmentally.

C.L.O. filed a petition for adoption on October 19, 2009,⁶ when A.H. had just turned two years old. K.H. received a notice of the petition within a few days, and efforts were made to serve notice on a man named E.T. (not E.P.) and another named N. Meanwhile, as he acknowledged later at trial, E.P. had learned from his cousin some two months earlier, in August 2009, that “K. had the baby and that K. wanted [E.P.] to come and get the baby.” E.P. further testified that he then knew “it might have been a possibility” that the baby was his child, and that he decided to seek out K.H. to “see what the problem was since she said [to his cousin] she couldn't handle ... having the baby.” Not knowing where to find K.H., E.P. initially relied on his cousin to contact her. He waited two weeks for his cousin to report back; he heard nothing from her. E.P. then went with his cousin to K.H.'s grandmother's house.⁷ He learned from K.H.'s family that she had left the house with her baby, implying that she would return. E.P. returned to the grandmother's house three or four more times over the next “month or less,” without finding K.H. or the baby there. He made no further effort to find mother or child.

At the next hearing on January 26, 2010, K.H. consented to A.H.'s adoption. Arrangements were made once more for K.H. to accompany a CFSA investigator, who was also a process server, to try to locate A.H.'s father. This time they succeeded. E.P. was served with a notice for termination of parental rights (TPR) on January 28—five months after he had learned about the child—and with a notice of the proposed adoption a month later on February 23. E.P. maintains that he had been unaware that A.H. was in a foster home until he was served with the TPR notice in January, and that he had not been certain the child was his until a DNA test confirmed his paternity in March 2010. Immediately after the DNA result, E.P. said, he contacted CFSA. Without waiting for a court order, the agency arranged for E.P. to have two, one-hour supervised visits with A.H.

E.P. attended the next scheduled status hearing on March 25, 2010 and notified the magistrate judge that he wished to work toward gaining custody of his child. Because E.P. had just been identified as the father, the judge chose to maintain the goal of adoption. However, he deferred a hearing on the adoption petition, giving the parties additional time to discuss their respective positions. Taking into account the child's young age and the absence of information about E.P.'s ability to care for her, the magistrate judge formalized E.P.'s visitation rights with an order allowing supervised visits of at least one hour each week, and he granted CFSA, the guardian ad litem, and the foster mother (C.L.O.) discretion to determine together whether to permit unsupervised visits.

Four months later on July 26, 2010, having failed to obtain permission for unsupervised visits, E.P. filed a motion for unsupervised visitation and for appointment of an independent social worker. The magistrate judge denied the motion as well as a motion to reconsider. The judge held a permanency hearing on September 14, at which E.P. withheld his consent to A.H.'s adoption.

On October 14, 2010, the magistrate judge convened a show cause hearing ⁸ to evaluate whether the court, in the child's best interest, should waive the statutory requirement for E.P.'s consent to the adoption. By that time, A.H. had just turned three years old. She had been in foster care for all but three months of her life, and the petitions for TPR and adoption had been pending for nine months and eight months, respectively. The parties presented extensive evidence over the course of four days, including testimony from C.L.O. and E.P., as well as from three of E.P.'s daughters (by other mothers); the mother of one of his daughters; E.P.'s own mother; four social workers who had been supervising the case; A.H.'s daycare teacher; a child psychiatrist; and a clinical psychologist.

C.L.O. testified that she has a bachelor's degree, as well as a master's degree in social work, from Howard University. She has been employed by CFSA as a supervisory social worker for twenty years. C.L.O. has one biological teenage daughter for whom she has always been the primary caretaker. She lives with L.A.L., her daughter's biological father, and she owns her home. She was forty-nine years old at the time of the hearing, she said, and was in good health except for high blood pressure controlled by medication.

C.L.O. then testified about the close relationship A.H. has developed with C.L.O. and her family. A.H. refers to C.L.O. as “mom.” She refers to C.L.O.'s biological daughter as her sister or her best friend. L.A.L. and A.H. have a positive relationship, and A.H. refers to L.A.L. as her “daddy.” C.L.O. further testified that she believed removal of A.H. from her home would be “traumatic” for the child. C.L.O. also testified that, if the adoption were approved, she would agree to allow E.P. to develop a relationship with his daughter, beginning by...