In re TA.L.
| Decision Date | 22 August 2013 |
| Docket Number | 11–FS–1255,11–FS–1256,11–FS–1259,11–FS–1260.,11–FS–1258,Nos. 11–FS–1217,11–FS–1257,11–FS–1218,s. 11–FS–1217 |
| Citation | 75 A.3d 122 |
| Court | D.C. Court of Appeals |
| Parties | In re TA.L.; A.H. & T.L., Appellants. In re A.L.; A.H. & T.L., Appellants. In re Petition of R.W. & A.W.; A.H., T.L., & E.A., Appellants. In re Petition of E.A., Appellant. |
OPINION TEXT STARTS HERE
Leslie J. Susskind and N. Kate Deshler Gould for appellants A.H. and T.L.Joyce Aceves–Amaya, with whom Tanya Asim Cooper was on the brief, for appellant E.A.
Melanie L. Katsur, with whom Sarah A. Wilson, Lissa M. Percopo, Washington, DC, and guardian ad litem Kelly Venci, were on the brief, for appellees R.W. and A.W.
Stacy L. Anderson, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee District of Columbia.
John C. Keeney, Jr., and Kyle J. Fiet, Legal Aid Society of the District of Columbia, and David Reiser, Washington, DC, filed a brief as amicus curiae in support of appellants T.L., A.H., and E.A.
Before WASHINGTON, Chief Judge, BLACKBURNE–RIGSBY, Associate Judge, and REID, Senior Judge.
A.H. and T.L., biological parents of minor children A.L. and Ta.L., along with the children's great aunt, E.A., challenge the trial court's decision granting the adoption of A.L. and Ta.L. by their foster parents, R.W. and A. W., and denying E.A.'s adoption petition. On appeal, A.H. and T.L. argue that the trial court erred in changing the permanency goal for the children from reunification to adoption on May 14, 2009, and that they should have been permitted to appeal the change in permanency goal at that point in the neglect proceedings. In addition, A.H., T.L., and E.A. argue that the trial court erred in granting the W.s' adoption petition because it failed to give weighty consideration to the adoption petition of the biological parents' preferred caregiver, E.A. For the reasons stated below, we reverse and remand for the trial court to give E.A.'s adoption petition the weighty consideration it is due as the petition of the biological parents' preferred caregiver.
On March 24, 2008, A.L. and Ta.L. were removed from the care and custody of their biological parents, A.H. and T.L., following the arrest and incarceration of both parents for a domestic violence incident in the family's home. The Child and Family Services Agency (“CFSA”) immediately assumed custody of the children, placing them in foster care with R.W. and A.W. A.L. was sixteen months old and Ta.L. was three months old at the time. The children were both underweight, A.L. was not current on her immunizations, and Ta.L. had not seen a doctor since his discharge from the hospital after his birth. Ta.L. was diagnosed as failing to thrive, a condition characterized by being underweight due to decreased caloric intake. A.L. was found to suffer from significant medical problems, including chronic lung disease, severe asthma and sleep apnea, a severe eye disorder, and acid reflux. A.L.'s pediatrician testified that she was concerned that A.L. might not regularly be receiving the proper treatment required for these ailments, which could be life-threatening without treatment.
Two days after the children's removal from their biological parents' care, CFSA conducted a Family Team Meeting to identify family members who might provide a temporary placement for the children while A.H. and T.L. worked toward reunification. One of T.L.'s sisters, K.A.-R., attended the meeting and indicated that she would be willing to become a kinship foster care provider for the children. T.L.'s aunt, E.A., was also at the meeting and agreed to be a backup provider for K.A.-R. E.A. testified that it was her understandingthat if K.A.-R.'s foster care license was denied, she would be second in line to get the children as a kinship foster care provider.
Approximately two weeks later, K.A.-R. learned that her husband did not pass the requisite background check and, as a result, she could not be licensed to care for the children in her home. K.A.-R. told E.A. that she was unable to complete the licensing process, but reassured E.A. that the children's permanency goal was reunification, which T.L. confirmed to E.A. a short time later. E.A. testified that because she understood the children's permanency goal to be reunification, she did nothing to attempt to become a placement for the children. CFSA also did not make any attempts to contact E.A. and qualify her as a kinship placement.
A.L. and Ta.L. were adjudicated neglected on May 1, 2008, because they lacked proper parental care and control and because T.L. and A.H. were unable to discharge their parental responsibilities due to their incarceration and substance abuse problems.1 The trial court committed the children to CFSA's custody and care, with a permanency goal of reunification with the biological parents to be achieved by May 2009.
On May 14, 2009, the trial court held a permanency hearing during which the government moved to change the permanency goal from reunification to adoption on the basis that the biological parents had not been complying with court-ordered services and had thus made insufficient progress towards reunification. The trial court approved the change in permanency goal from reunification to adoption because T.L. and A.H. had not: complied with the trial court's order for drug testing or participated in drug treatment; regularly attended couples' counseling; consistently visited the children; secured stable housing; or been involved with the children's medical care and educational services.
Less than a month later, on June 12, 2009, A.W. and R.W. filed a petition to adopt Ta.L. and A.L. Shortly thereafter, E.A. was contacted by a social worker since T.L. had mentioned E.A. as a placement option for the children during the May 14, 2009 permanency hearing. E.A. began visiting the children in June or July 2009. Visits were moved to E.A.'s home in August 2009 and the children would visit with E.A. and their biological parents for one to two hours per week. E.A. testified that she requested more visits with the children, but her requests were denied.
On October 9, 2009, E.A. filed a petition to adopt A.L. and Ta.L. At a permanency hearing held on November 6, 2009, A.H. and T.L. indicated they were consenting to E.A.'s adoption petition and that it was in the best interest of the children to be adopted by E.A. rather than be returned to their care. E.A. began taking foster care classes in November 2009, and became a licensed therapeutic foster care provider in December 2009. An adoption social worker deemed E.A.'s home appropriate for children. CFSA, however, supported A.W. and R.W.'s petition citing the foster parents' ability to provide a stable home and meet all of the children's daily and medical needs, the children's bond with the W.s, and the biological parents' failure to do what was necessary to achieve reunification.
The adoption trial was held in May 2011. At the time of the adoption trial, the children had been in R.W. and A.W.'s care for three uninterrupted years. During the adoption proceeding, the W.s called psychologist Dr. James Venza as an expert witness. Dr. Venza conducted an attachment study between the W.s and the children in March 2010, when A.L. was three and Ta.L. was two. The children had been with the W.s for two years at that point, and had been visiting E.A. weekly for approximately nine months. Dr. Venza concluded that A.L. has a secure attachment to A.W., which is the optimal level of development, and that Ta.L. has an anxious avoidant attachment to A.W., due in part to his age. Dr. Venza noted substantial growth in the children's cognitive abilities while in the W.s' care and predicted the children would regress cognitively if separated from the W.s. Dr. Venza concluded that the impact of removing the children from the W.s' care would be potentially “devastating” to their long-term development, particularly given their early history of neglect, medical challenges, and developmental delays, and that the risk of permanent or irreparable harm was “clear” and “unmistakable.” Dr. Venza also concluded that the impact of the children's separation from the W.s would not differ based on where they were subsequently placed. Dr. Venza did not, however, study A.L. and Ta.L.'s attachment to E.A.
Dr. Sheryl Frank, a consulting psychologist with the Department of Mental Health's Assessment Center, testified about a court-ordered bonding study she performed in July 2010 between the children, the biological parents, and all the petitioners. Dr. Frank testified that the children's relationship with their biological family was positive and that E.A. ably directed the children's play, set appropriate limits, had a nice manner with the children, and was attuned to their needs. However, Dr. Frank concluded that A.L. and Ta.L. were “most attached” to the W.s and would suffer the greatest harm, in both the short- and long-term, if that bond were broken, notably the children's “emotional and behavioral development” were at a “high risk of derailment.”
E.A. called clinical psychologist Dr. David Missar as her expert witness to offer a critique of Dr. Venza's and Dr. Frank's assessments. Dr. Missar opined that Dr. Frank was not in a position to offer an opinion about the children's attachment to any party because she had only conducted an assessment of their bonding. As for Dr. Venza's evaluation, Dr. Missar found the primary limitation to be that he did not assess the children's attachment to their biological family, including E.A.
On August 31, 2011, the trial court granted A.W. and R.W.'s adoption petition over E.A.'s adoption petition. The trial court stated that it gave “weighty consideration” to the biological parents' preference for E.A....
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In re Ta.L.
...granted the petition by appellees R.W. and A.W. for rehearing en banc, thereby vacating its original opinion in this case, In re Ta.L. , 75 A.3d 122 (D.C. 2013), vacated sub nom. In re R.W. , 91 A.3d 1020 (D.C. 2014), in part because this appeal raises serious concerns about our prior decis......