In re R.E.S., 08–FS–451.

19 A.3d 785

In re Petition of R.E.S.,D.F., Appellant.

No. 08–FS–451.

District of Columbia Court of Appeals.

Argued March 23, 2011.Decided May 19, 2011.

Laurie P. McManus, for appellant D.F.Sharon A. Singh, filed a supplemental brief, for appellee R.E.S.Stacy L. Anderson, Assistant Attorney General, with whom Irvin B. Nathan, Acting Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for the District of Columbia.Alicia Barsoumian, Guardian Ad Litem for D.T., filed a supplemental brief.Before GLICKMAN and FISHER, Associate Judges, and REID,^* Associate Judge, Retired.FISHER, Associate Judge:

This is the second time D.F. has come before this court in an effort to set aside a final decree granting R.E.S.'s petition to adopt his biological daughter D.T. without his consent. Following our remand for a hearing, D.F. now challenges the denial of his claim of ineffective assistance of counsel. We reject his contentions and affirm.

I. Background

D.T. was born in 1995 and removed from her mother L.B.'s care in 2001 due to allegations of neglect. Before then, D.F. was not aware of D.T.'s existence. Once a paternity test confirmed he was D.T.'s father, D.F. “wanted custody of D.T.[,]” but only visited her four times before he was arrested on drug charges. He pled guilty in October 2002, and soon thereafter was sentenced to prison, where he remained until May 2010.

D.T. resided in six different foster homes before March 1, 2006, when she was placed with R.E.S. A few months later, R.E.S. filed a petition to adopt D.T. Judge Dalton (then a Magistrate Judge) held a trial to determine whether the biological parents' consent to the adoption should be waived. R.E.S. and Linda Clausen, the social worker assigned to D.T.'s case, were the only witnesses who testified. D.T.'s guardian ad litem spoke in support of R.E.S.'s petition and she, R.E.S., and Ms. Clausen reported that D.T. wanted R.E.S. to adopt her. At the conclusion of the hearing, Judge Dalton found that L.B. and D.F. had abandoned D.T. and that it was in D.T.'s best interests to waive their consent to her adoption.¹ Judge Cheryl Long affirmed the decision to grant R.E.S.'s petition.

When we first addressed this appeal, D.F. argued, among other things, that he had been denied the effective assistance of counsel. In re R.E.S., 978 A.2d 182, 185 (D.C.2009) ( In re R.E.S. I ). His ineffectiveness claim was based on his counsel's failure (1) to make arrangements for him to participate in the proceedings (he was still incarcerated at the time of the show-cause hearing), and (2) “to call any witnesses to support his preference that members of his family provide care for D.T.” Id. at 194. We were unpersuaded by his independent arguments for a new adoption trial, but held that he had a statutory right to effective assistance of counsel, and remanded the record (not the case) for further inquiry concerning “the performance of his court-appointed counsel.” Id. at 188–89, 195. In particular, we wanted to “know what the record would have looked like” if D.F. and his proposed caretakers had testified. Id. at 195. We also announced that the District of Columbia would apply the Strickland standard (tailored to fit the context) when evaluating claims that a parent has been deprived of the effective assistance of counsel in proceedings to terminate his or her parental rights. Id. at 191 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

On remand, Judge Dalton (then an Associate Judge of the Superior Court) held a three-day evidentiary hearing for the limited purpose of determining whether appellant's counsel had been ineffective. The trial court heard testimony from D.F.; his trial counsel, Hope Umana; and his proposed caretakers-his sisters M.F.T. and B.J., his niece's mother G.A., and his fiancée B.S. Ultimately, the court rejected D.F.'s ineffectiveness claim, concluding that he had not satisfied the prejudice prong of Strickland. ²

In the present case, the Court cannot find that the father was prejudiced nor is there a reasonable probability that if the father was present and the witnesses had testified that the decision of the Court would have been different. The respondent had been in foster care and numerous placements for years without permanency. The father was unavailable due to his incarceration and no family member had proceeded to permanency in any convincing manner.

D.F. argues that the trial court did not apply the correct standard when resolving his claim of ineffectiveness because it failed to give proper consideration to his preference that D.T. be placed with one of the caretakers he had proposed.³ Appellant also claims that Judge Dalton abused her discretion when she did not permit him to call Ms. Clausen as a witness.

II. Ineffective Assistance of Counsel

A. Legal Principles

Our review of a trial court's determination of whether counsel was ineffective “presents a mixed question of law and fact.” Byrd v. United States, 614 A.2d 25, 30 (D.C.1992); Derrington v. United States, 681 A.2d 1125, 1132 (D.C.1996) (same). We “accept the trial judge's factual findings unless they lack evidentiary support in the record, and on those facts we will conduct a de novo review of the trial court's legal conclusions.” Mercer v. United States, 864 A.2d 110, 118 (D.C.2004) (citing Byrd, 614 A.2d at 30).

To establish a claim of ineffective assistance of counsel in termination proceedings, a parent must show both that counsel's performance was deficient and that actual prejudice resulted. In re R.E.S. I, 978 A.2d at 191 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). To demonstrate prejudice, a “parent must show ‘that counsel's errors were so serious as to deprive [him or her] of a fair trial, a trial whose result is reliable.’ In other words, the parent must show a ‘reasonable probability’ that, but for counsel's deficient performance, the outcome of the trial would have been different.” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Strickland defines a “reasonable probability” as “a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. 2052.

While the Strickland test is familiar, there is an important difference in the prejudice inquiry when we are assessing the impact of counsel's performance in a termination proceeding instead of a criminal trial. “Unlike a criminal proceeding, which implicates the personal liberty interest of a criminal defendant, a termination proceeding involves more than a parent's fundamental liberty interest in the care, custody, and control of his child. The child's interests in stability, safety, security, and a normal family home are also at stake, as well as the prompt finality that protects those interests.” John M. v. Arizona Dep't of Economic Security, 217 Ariz. 320, 173 P.3d 1021, 1025–26 (App.2007) (quotation marks and citations omitted). So, even though we are evaluating whether a parent's rights were violated, “in matters affecting the future of a minor child, the best interest of the child is the decisive consideration.” In re M.L.P., 936 A.2d 316, 321 (D.C.2007) (citing In re L.W., 613 A.2d at 355). Parental rights “are not absolute, and must give way before the child's best interests.” In re A.B.E., 564 A.2d 751, 754–55 (D.C.1989) (“The legal touchstone in any proceeding to terminate parental rights is the best interest of the child, and that interest is controlling.”) (collecting cases).⁴

B. Analysis

Even if we assume, for the purpose of determining this appeal, that counsel's performance was deficient, D.F. still cannot prevail on his claim of ineffective assistance because he has not satisfied his burden of demonstrating prejudice.

Appellant's primary claim is that Judge Dalton's analysis of prejudice—her assessment of whether counsel's performance undermined confidence in the outcome of the adoption proceeding—was flawed because she failed to factor in the “weighty consideration” principle. Here D.F. refers to our decisions which recognize that “unless it is established that the parent is not competent to make such a decision, ... a parent's choice of a fit custodian for the child must be given weighty consideration which can be overcome only by a showing, by clear and convincing evidence, that the custodial arrangement and preservation of the parent-child relationship is clearly contrary to the child's best interest.” In re T.J., 666 A.2d 1, 11 (D.C.1995); In re F.N.B., 706 A.2d 28, 31 (D.C.1998) (same).⁵ Appellant argues that because Judge Dalton's order did not explicitly articulate the “weighty consideration” principle or cite—“let alone analyze”—a parental preference case, it lacked “any reasoning to show how the father failed to carry his burden under this jurisdiction's body of parental preference case law[.]”

It is important to recognize that our “weighty consideration” cases do not “say that the parents' preferences are necessarily controlling.” In re C.T., 724 A.2d 590, 598 (D.C.1999) (citing In re F.N.B., 706 A.2d at 32). We have “granted relief in [ ] cases [where] the trial court had not given sufficient consideration to the alternate custody arrangements proposed by the [parent].” In re Ja.J., 814 A.2d 923, 924 (D.C.2002); In re A.T.A., 910 A.2d at 297 (same). By contrast, in this case, “the fitness of [D.F.'s] proposed caretakers was the focal point of the trial and of the court's detailed findings of fact and conclusions of law.” In re Ja.J., 814 A.2d at 924; In re A.T.A., 910 A.2d at 297 (same). Indeed, almost all of the evidence presented at the hearing on remand was directed toward this issue. Cf. In re F.N.B., 706 A.2d at 31–32 (insufficient consideration where the record lacked evidence of the potential custodian's fitness and her role in the child's life during the child's five years in foster care). Furthermore,...