In re Ta.L., Nos. 11–FS–1217

• Docket Nº: 11–FS–1218
• Citation: 149 A.3d 1060
• Case Date: December 08, 2016
• Court: Court of Appeals of Columbia District

149 A.3d 1060

In re Ta.L.

In re A.L.

In re Petition of R.W. & A.W.

In re Petition of E.A.

A.H. and T.L., Appellants.

Nos. 11–FS–1217
11–FS–1218
11–FS–1255
11–FS–1256
11–FS–1257
11–FS–1258
11–FS–1259 &
11–FS–1260

District of Columbia Court of Appeals.

Argued En Banc June 17, 2014
Decided December 8, 2016

Tanya Asim Cooper, with whom Joyce Aceves–Amaya was on the brief, for appellant E.A.

Leslie J. Susskind for appellant A.H.; N. Kate Deshler Gould for appellants A.H. and T.L.

Melanie L. Katsur, with whom Matthew D. McGill, Lissa M. Percopo, Christopher B. Leach, and Lindsay M. Paulin 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 at the time the brief was filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for appellee the District of Columbia.

Kelly Venci, guardian ad litem, filed a brief in support of appellees R.W. and A.W.

James Klein, Public Defender Service, filed a brief as amicus curiae in support of appellants A.H., T.L., and E.A.

Melissa Colangelo and Allen Snyder, Children's Law Center, filed a brief as amicus curiae on limited issue and in support of neither party.

John C. Keeney, Jr., Legal Aid Society of the District of Columbia, Kyle J. Fiet, and David Reiser filed a brief for amici curiae Legal Aid Society of the District of Columbia; National Association of Counsel for Children; Center for Family Representation, Inc.; Family Defense Center; and Family Law Professors Vivek S. Sankaran, Christine Gottlieb, and Martin Guggenheim in support of appellants A.H., T.L., and E.A.

Richard P. Goldberg and Jeremy C. Doernberger filed a brief for amicus curiae Dr. Robert S. Marvin in support of appellees R.W. and A.W.

Douglas H. Hallward–Dreimeier filed a brief for amici curiae Law Professors James G. Dwyer, J. Herbie Difonzo, Jennifer A. Drobac, Deborah L. Forman, William Ladd, Ellen Marrus, and Deborah Paruch, in support of appellees R.W. and A.W.

Before Washington, Chief Judge, Glickman, Fisher, Blackburne–Rigsby, Thompson, Beckwith, Easterly, and McLeese, Associate Judges, and Reid, Senior Judge.

Opinion by Chief Judge Washington, with whom Blackburne–Rigsby, Associate Judge and Reid, Senior Judge, join in full; Thompson, Associate Judge, joins in Parts III and V (except for footnote 38) and the judgment; Glickman, Fisher, and McLeese, Associate Judges, concur in the judgment; and Beckwith and Easterly, Associate Judges, join in parts III and IV, but dissent from the judgment.

Concurring and dissenting opinion by Glickman, Associate Judge, with whom Fisher and McLeese, Associate Judges, join in full, and Thompson, Associate Judge, joins in Parts III and IV, at page 1088.

Concurring and dissenting opinion by Associate Judges Beckwith and Easterly, with whom Washington, Chief Judge, joins in Part I and II, at page 1121.

Washington, Chief Judge:

A.H. and T.L., biological parents of minor children A.L. and Ta.L., along with the

149 A.3d 1068

children's 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. (the "W.s"), and denying E.A.'s adoption petition. This court 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 decision in In re K.M.T. , 795 A.2d 688 (D.C. 2002), where a division of this court held that permanency goal decisions of the trial court are not appealable.¹ Specifically, appellants A.H. and T.L. complain that the informal process used to change the permanency goal for their family from reunification to adoption, a decision they could not challenge on appeal and one that ultimately resulted in a termination of their parental rights, violated their constitutional due process rights. In addition, appellants argue that the trial court erred in granting the W.s' adoption petition because, in considering the competing adoption petitions, the trial court failed to give weighty consideration to the adoption petition of the biological parents' preferred caregiver, E.A. We agree with appellants that when the Child and Family Services Agency, ("CFSA")—the agency charged with assisting parents in their efforts to reunite with their children that have been removed from their home—requests that the trial court change the goal for the family from reunification to adoption, the parents must have the right to contest the goal change before they are forced to make a Hobson's choice between contesting the adoption petition of a stranger or consenting to the adoption of their children by a family member. Additionally, the parents should be able to appeal such a change because it marks a point in time when the trial court has effectively authorized CFSA to transfer its support to someone else to parent the child. Despite our ruling here today, we affirm the trial court's decision to grant the adoption petition of the W.s because it is supported by clear and convincing evidence that at the time of the adoption hearing, the biological parents, T.L. and A.H., withheld their consent to the adoption against the best interest of the children and there was clear and convincing evidence that adoption by E.A. was not in the best interests of the children.

I. Facts

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 CFSA immediately assumed custody of the children, and placed 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 suffered from significant medical problems, including sleep apnea and chronic pulmonary issues as well as an eye disorder and acid reflux. Ta.L. was diagnosed with failure to thrive syndrome and had not seen a doctor since birth. A.L.'s pediatrician later testified that she was concerned that A.L. might not regularly be receiving the proper treatment required for her ailments, which could be life-threatening without treatment.

149 A.3d 1069

Two days after the children's removal from their biological parents' care, CFSA conducted a Family Team Meeting² to identify family members who might provide a temporary placement for the children while A.H. and T.L. worked toward reunification. Two of T.L.'s sisters, K.A.–R. and E.A., attended the meeting. K.A.–R. indicated that she would be willing to become a kinship foster care provider for the children, and E.A. agreed to be a backup provider for K.A.–R. E.A. testified that it was her understanding that 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; however, E.A. did not take any steps to become a kinship foster parent at that time.

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 children 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.³ 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 because the biological parents had not made sufficient progress towards reunification. The trial court approved the change in permanency goal from reunification to adoption, finding that T.L. and A.H. had not: 1) complied with the trial court's order for drug testing or participated in drug treatment; 2) regularly attended couples' counseling; 3) consistently visited the children; 4) secured stable housing; and 5) been involved with the children's medical care and educational services.

Less than a month later, on June 12, 2009, R.W. and A.W., who had been caring for Ta.L. and A.L. since March 2008, filed a petition to adopt Ta.L. and A.L. Shortly thereafter, E.A. was contacted by a social worker because T.L. mentioned E.A. as a placement option for the children during the May 14, 2009, change of permanency goal hearing.⁴ E.A. began visiting the children in June or July 2009....