In re T.W.M., No. 06-FS-1537.
| Citation | 964 A.2d 595 |
| Decision Date | 05 February 2009 |
| Docket Number | No. 06-FS-1537.,No. 06-FS-1552. |
| Parties | In re Petition of T.W.M.; T.B., Appellant; and S.E., Appellant. |
| Court | Court of Appeals of Columbia District |
Stephen L. Watsky for appellant, T.B.
Joanne Schamest for appellant, S.E.
Larry Banks Blackwood, Guardian Ad Litem, for T.E.
Sanya Sukduang, with whom Timothy B. Donaldson was on the brief, for appellee, T.W.M.
Linda Singer, Attorney General for the District of Columbia at the time the statement was filed, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Catherine Ferrando, Assistant Attorney General, filed a statement in lieu of brief, for the District of Columbia.
Before WASHINGTON, Chief Judge, and FISHER and BLACKBURNE-RIGSBY, Associate Judges.
Appellants T.B. and S.E., the natural parents of T.E. ("the child"), appeal the Superior Court's order granting the adoption petition of T.W.M., the child's foster mother, and denying the competing adoption petition of A.E., T.E.'s second cousin and the natural parents' choice of caregiver for the child. We reverse and remand.
T.E. was born prematurely on October 9, 2001, to Appellants T.B. (the father) and S.E. (the mother). S.E. left the child at the hospital, and on November 29, 2001, T.E. was placed in foster care. S.E. was not able to care for the child due to her substance abuse problems, so she was allowed only two-hour weekly supervised visits with T.E. On November 30, 2001, a petition was filed alleging that T.E. was a neglected child pursuant to D.C.Code §§ 16-2301(9)(B) and (C) (1997 Repl.).1 On January 31, 2002, S.E. stipulated to neglect pursuant to D.C.Code § 16-2301(9)(C). T.B. did not participate in the neglect proceedings, as he was incarcerated at the time and did not appear before the neglect judge.
Following a Disposition Hearing, on January 15, 2002, the neglect judge placed T.E. in her mother's protective supervision while she participated in the Nurture for Life ("NFL") drug treatment program. The NFL program provided S.E. with housing, substance abuse therapy, parenting classes, and General Equivalency Diploma (GED) study courses. S.E. absconded from the program in October 2002, leaving T.E. behind. Subsequently, the child was placed in foster care with her maternal aunt, who was already caring for several of T.E.'s siblings.
On October 18, 2002, at a Permanency Hearing, the neglect judge committed T.E. to the Child and Family Services Agency ("CFSA") and determined that she should remain in her maternal aunt's custody. The neglect judge also allowed Appellants supervised visits with T.E. and set forth certain criteria with which S.E. and T.B. had to comply if they wished to regain custody of T.E. Subsequently, on November 21, 2002, T.E. was removed from her maternal aunt's care and placed in foster care with T.W.M.
Shortly after T.E. was placed into foster care with T.W.M., A.E., T.E.'s second cousin, contacted CFSA about getting custody of the child. A.E. is a divorcee2 and single mother with a stable job. CFSA arranged supervised visits between A.E. and T.E., which began January 18, 2003.3 A.E. consistently met with the child whenever the visits could be arranged.
A.E. and T.E. developed a good relationship, as did T.E. and A.E.'s young son. A.E. took the child to festivals, family gatherings, various sporting events, and the circus. A.E. enrolled her in gymnastics classes, and bought clothing and shoes for T.E.
On March 13, 2003, the permanency goal for T.E. was changed from reunification to adoption by A.E., and on May 5, 2003, the court ordered unsupervised, overnight weekend visits between A.E. and T.E. A.E. picked up the child from CFSA Saturday mornings and returned her on Sunday evenings.
On August 1, 2003, T.B. executed a Consent of Biological Parent ("consent") to the adoption of T.E. by petitioner A.E. On September 3, 2003, T.W.M., T.E.'s licensed foster mother, filed a petition to adopt T.E. The father's consent to adoption was filed September 16, 2003, and three months later S.E. joined T.B. in consenting to the adoption of T.E. by A.E., although S.E.'s consent was not filed until January 13, 2004.
During a Permanency Hearing on November 16, 2004, before the Honorable Odessa Vincent, A.E. suggested that T.W.M. had improperly cut parts of T.E.'s hair, while T.W.M. asserted that the child's hair loss was due to A.E. braiding her hair too tight. In support of her allegation, T.W.M. presented to the trial court a report from T.E.'s physician dated March 23, 2004, which indicated that the child's hair was being braided too tight. After viewing T.E.'s scalp in court, the trial court ordered that the child's hair only be loosely braided and not put in tight braids like cornrows.
In December 2004, T.W.M. noticed that T.E. was suffering from blisters and pimples on her scalp. On January 7, 2005, T.W.M. argued to the trial court that T.E.'s reaction was a result of someone tightly cornrowing the child's hair again, in violation of the court's November 16th order. Based on the representation by T.W.M., the trial court placed visitation restrictions on A.E. until the matter could be resolved. On February 15 and 16, 2005, the trial court held an evidentiary hearing on the hair issue, during which both petitioners testified. After the hearing, the trial court ordered both petitioners to cease doing T.E.'s hair, and it further ordered that only a particular professional hair stylist handle T.E.'s hair needs.
On May 3, 2005, Judge Vincent received a letter from the selected stylist alleging that someone other than she had braided, and cut or shaved, T.E.'s hair. At a Status Hearing held two days later, both petitioners denied knowledge of, or responsibility for, T.E.'s hair loss. Despite the petitioners' attestations that they had not violated the court's order, Judge Vincent removed the child from T.W.M.'s home and placed her in another foster home until the court issued its final decision on the adoption petitions in April 2006. During that period of time, the petitioners were only allowed supervised visits with T.E.
After the competing adoption petitions were consolidated, Judge Vincent oversaw a four-day trial, which began on September 29, 2005. Both petitioners testified. S.E. and T.B. testified in support of A.E.'s petition for adoption, as did at least three social workers assigned to T.E.'s case.
The social workers believed that either A.E. or T.W.M. would be a good caregiver for the child; but in the interest of maintaining familial relationships, they opined that placing the child with A.E. would be in T.E.'s best interest. Because none of the social workers offered compelling evidence that would distinguish the two petitioners in terms of ability to parent T.E., the court appeared to give more consideration and weight to the experts' testimony.
The first expert, Child Psychiatrist Floyd B. Galler, testified about his February 2005 psychiatric evaluation of T.E. and both petitioners. After separately observing both petitioners with T.E. for approximately one-half hour each, Dr. Galler determined that A.E.'s parenting skills were not particularly good, especially as compared to T.W.M.'s parenting skills which he deemed superior. However, the doctor further testified that, based on his attachment study, T.E. saw A.E. as her "psychological parent" — the person T.E. essentially felt she wanted to take care of her. Dr. Galler admitted that he questioned his own conclusion since T.E. had spent most of her life with T.W.M., while the child had only spent a limited amount of time with A.E. However, after mulling the matter over in a very interesting critical self-examination on the stand, the doctor concluded that his opinion supporting A.E.'s adoption petition was sound.
Another expert, Dr. Roselyn E. Epps, Chief of Dermatology at Children's National Medical Center, was called to testify regarding T.E.'s scalp conditions. Dr. Epps had examined T.E. on July 13, 2005, and diagnosed the child as having tinea capitis, a scalp fungal infection, and alopecia areata, a hair loss condition. The doctor did not opine on the cause of T.E.'s scalp conditions, noting that her blistering and hair loss could have been caused by any number of things, including stress or bacteria. And since the cause of both scalp conditions was unknown, Dr. Epps was unable to say with certainty whether it was the braiding, or other conduct, causing T.E.'s scalp problems. However, the doctor did note that both conditions were common and treatable with medication.
The Guardian ad Litem ("The Guardian") did not testify at the trial. But shortly after the trial concluded on October 25, 2005, the Guardian submitted to the trial court a recommendation in favor of A.E.'s petition for adoption. In the Guardian's recommendation, he factually summarized the circumstances of both petitioners and determined that they were both qualified and generally comparable, but he ultimately favored A.E. over T.W.M. given A.E.'s age and family structure.
On May 19, 2006, after the trial concluded, the trial court ordered CFSA to place T.E. with T.W.M. and to terminate contact between A.E. and T.E. Six months later, on November 22, 2006, the trial court issued an order denying A.E.'s adoption petition and granting T.W.M.'s competing petition.
After hearing all of the evidence, the trial court made several significant factual and legal findings in its Memorandum and Order entered November 22, 2006. First, in its findings of fact, the trial court credited the testimony of Dr. Epps, and concluded that T.E.'s scalp irritation and hair loss was due to her naturally occurring scalp conditions. But because the cause of T.E.'s scalp condition was inconclusive, the trial...
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