MATTER OF BABY GIRL D.S.

• Decision Date: 27 November 1991
• Docket Number: No. 89-1513,89-1513
• Citation: 600 A.2d 71
• Court: D.C. Court of Appeals
• Parties: In the Matter of BABY GIRL D.S. Appeal of V.V., Appellant.

600 A.2d 71

In the Matter of BABY GIRL D.S.Appeal of V.V., Appellant.

No. 89-1513.

District of Columbia Court of Appeals.

Argued February 28, 1991.

Decided November 27, 1991.

Appeal from the Superior Court, John H. Suda, J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Robert E. Sylvester, Washington, D.C., appointed by the court, for appellant.

Donna L. Wulkan, Washington, D.C., appointed by the court, for appellee T.S.

Before FERREN, STEADMAN, and SCHWELB, Associate Judges.

FERREN, Associate Judge:

In this case, the trial court denied, without prejudice,¹ a guardian ad litem's motion to terminate the parental rights of a fifteen-year-old natural mother, T.S. In declining to terminate, the court did not conclude the mother was a fit parent. Rather, by looking ahead to a pending adoption contest in which the foster mother and the maternal grandparents both sought to adopt the baby girl, the court concluded that termination would harm the child by cutting off access to both her mother and her grandparents, the E.s, before the adoption issues could be resolved. Appellant V.V., the court-appointed foster mother of the baby girl, D.S., has appealed. Having intervened in this proceeding because of her interest in adopting the child, V.V. claims, primarily, that the trial court (1) abused its discretion by failing to consider the physical, mental, and emotional health of the mother, T.S., as the statute requires; (2) improperly considered a "grandparent" factor in deciding not to terminate the mother's parental rights; and (3) improperly weighed the impact of termination on the pending adoption proceeding. V.V.'s contentions may have some merit when considered wholly in the context of the termination proceeding. But we perceive a fundamental procedural flaw in the earlier refusal of the trial court (not the trial judge here) to consolidate this case with the contested adoption proceeding. Therefore, rather than order a new termination proceeding, we reverse and remand for consolidation of this case with the pending adoptionproceeding. Termination can — and should — be considered without further delay, but the proper way to do so at this point, in the best interest of the child, is in connection with V.V.'s and the E.s' competing petitions to adopt her.

This case is significant for two reasons. First, it presents the question of the role of a separate termination proceeding when an adoption proceeding for the same child — indeed, a contested adoption proceeding — is pending. Second, the case raises the question of the relevance and role, if any, of the child's noncustodial maternal grandparents in a proceeding to terminate the parental rights of the mother. We conclude that, in this case, the proceedings should have been consolidated once V.V., the foster mother (who also is seeking to adopt D.S.), intervened in the termination proceeding. A consequence of V.V.'s intervention was that the court, instead of treating the proceeding exclusively as one for termination of parental rights, permitted evidence and made findings as though contested adoption issues were also before the court. This led — as suggested by the second significant concern here —to an improper focus on the maternal grandparents and a cursory treatment of the fitness of the child's mother herself. As a result, the trial court denied termination because the court apparently thought that the grandparent issue would better be resolved in the adoption proceeding. Thus, this proceeding became neither fish nor fowl — neither termination nor adoption. The better course now is to recognize the problem and to remand for consolidation of all termination and adoption issues, since this will be in the child's best interest.

I.

D.S. was born July 9, 1986 to T.S., then fifteen years old, who herself had been adjudicated a neglected child in 1985. Because appellant V.V. was acting as T.S.'s foster mother, V.V. was appointed on July 17, 1986 to take care of D.S. as well when the baby girl was eight days old. Both mother² and child returned to V.V.'s home after the child's birth, but the mother, T.S., soon left. V.V. has remained the uninterrupted custodian of D.S.

The Department of Human Services (DHS) filed a child neglect petition on July 11, two days after D.S.'s birth, alleging that the mother, T.S., had emotional problems, a history of drug dependency, and abscondences from agency group homes. DHS was concerned that T.S. would disappear with the baby. When D.S. was five months old, the trial court, in accordance with a stipulation signed by the mother, found D.S. to be a neglected child within the meaning of D.C.Code § 16-2301(9)(B) and (C) (1989).³

In February 1988, V.V., the foster mother, filed a petition to adopt D.S. Ten months later in December 1988, when D.S. was 29 months old, her guardian ad litem⁴ filed a motion to terminate T.S.'s parental rights. The motion stated that T.S. had not visited D.S. since May 1987, that T.S. was still emotionally unstable and continued to escape from her residential placementswith her present address unknown, and that she did not wish to avail herself of parenting assistance which DHS had offered. The motion noted that D.S. "continued to grow and thrive in the care of [V.V.]" and that "there are no known relatives who might be suitable for placements for [D.S.]." The accompanying memorandum also noted that the foster mother, V.V., had developed a "warm, loving parent-child relationship" with D.S., [R. 40] while her maternal grandparents, the E.s,

have expressed an interest in caring for [D.S.] but not on a permanent basis. There has been only occasional contact between [D.S.] and her grandparents and a parent-child relationship has not developed nor has it been attempted.⁵

Two days after this motion was filed, the court ordered the weekly supervised visits between mother and child reduced to monthly visits if T.S. had two consecutive no-shows with less than 24 hours notice of cancellation. Except for one visit in January 1989, T.S. did not visit D.S. from the time the motion to terminate was filed in December 1988 until the termination hearing almost a year later in November 1989. By December 1988, therefore, D.S. was the subject of three proceedings: neglect, termination of her mother's parental rights, and adoption by the foster mother.⁶

The court issued an interlocutory order granting V.V.'s adoption petition and scheduled a show cause hearing for February 21, 1989 to finalize the order. Counsel for the mother, T.S., moved on February 9 to consolidate D.S.'s neglect/termination proceeding with V.V.'s adoption proceeding.⁷ The motion was denied. Then, on February 21, the child's maternal grandparents, the E.s, filed a petition to adopt D.S., which the court consolidated with V.V.'s petition. Given this development, the court then vacated the interlocutory order granting V.V.'s adoption petition.

On April 6, 1989, while the termination motion and adoption petitions were pending, the child's mother, T.S., signed a form consenting to D.S.'s adoption by the grandparents, the E.s (T.S.'s natural mother and stepfather). In doing so T.S. purported to relinquish all her custody, guardianship, and parental rights over D.S. to the grandparents. On June 5, counsel for T.S. moved for reconsideration of her motion to consolidate the neglect/termination proceedings, see supra note 7, with the adoption proceedings, arguing that the same evidence⁸ would be presented in both casesand that, regardless of the outcome of the termination proceeding, adoption proceedings would be necessary. The foster mother, V.V. — who was a party in both the neglect and the adoption proceeding, but not in the termination proceeding at that point — opposed the motion on the grounds that these proceedings did not involve the same parties (because the E.s were not parties to the neglect/termination proceeding, see supra note 8, and she was not a party to the termination), and that it was too much to ask V.V. to oppose both a hostile mother and hostile grandparents in the same adoption proceeding. V.V. also argued that the neglect/termination and adoption proceedings were fundamentally different: the former focused on the mother's behavior and relationship with her child, while the latter focused on which of two parties should be allowed to adopt the child. The court denied the motion to reconsider on June 19, 1989. On July 13, 1989, V.V., already a party to the neglect proceeding, filed a motion to be joined as a party to the termination proceeding pursuant to D.C.Code § 16-2356.⁹ The court granted the motion a month later. The E.s did not file a motion to intervene in the termination proceeding, and the court did not name them as parties on the court's own motion.

On August 24, 1989, the child's mother, T.S., moved to continue the termination proceeding because she was incarcerated on a solicitation for prostitution charge and had a trial date on the same date as the scheduled termination hearing.¹⁰ Finally, on November 24, 1989, the court held the termination hearing.

In opening argument, the guardian ad litem for D.S. argued that this was a simple case of abandonment of a child by a teenage mother who had emotional and mental problems and had not shown any interest in rearing her child. Counsel for T.S., however, replied that the natural family had not abandoned D.S. Counsel stressed that

this mother is at this point ready to take her child, wants to take her child, wants her child to be with her parents, has consistently expressed that since 1987 and that this family, this natural family is ready, willing and able to take care of this child, and that that sense of identity that a child would have with the natural family — who is my mother, who are my grandparents — is a profound one and one that this Court has considered.

Counsel for T.S. also charged the...