In re S.L.G.

110 A.3d 1275

In re Petition of S.L.G. & S.E.G.; D.A., Appellant.

No. 14–FS–73.

District of Columbia Court of Appeals.

Submitted Oct. 30, 2014.

Decided March 5, 2015.

Jon S. Pascale was on the brief for appellant D.A.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Aisha Lewis, Assistant Attorney General, were on the brief for appellee District of Columbia.

Sharon A. Singh was on the brief for appellees S.L.G. and S.E.G.

Ronald Woodman, guardian ad litem for appellee A.A., filed a statement in lieu of brief opposing the appeal and supporting appellees S.L.G. and S.E.G.

Before GLICKMAN and BECKWITH, Associate Judges, and NEWMAN, Senior Judge.

Opinion

GLICKMAN, Associate Judge:

D.A. appeals the decision of the Superior Court waiving her consent to the adoption of her daughter A.A. by appellees S.L.G. and S.E.G.¹ She primarily contends that the Superior Court erred by basing its decision, improperly, on a direct comparison of her with the adoption petitioners, and by failing to consider the likelihood that she would become a fit parent for A.A. within the foreseeable future. We conclude that although there is ample evidentiary support in the record for the trial court's ruling, the court did not make the necessary predicate determinations relating to appellant's fitness vel non to parent A.A. herself. We therefore find it necessary to remand for further proceedings to rectify this deficiency.

I.

A.

On November 4, 2010, when A.A. was just over ten months old, she was brought to Children's National Medical Center with a skull fracture and subdural bleeding. Appellant could not satisfactorily explain how A.A. received these injuries, and the Child and Family Services Agency (CFSA) removed the child from appellant's care. A neglect proceeding was begun in Superior Court, and on December 8, 2010, appellant stipulated that A.A. was a neglected child. The court committed A.A. to the custody of CFSA, which placed her in foster care with S.L.G. and S.E.G.

At the disposition hearing, the court set the permanency goal as reunification of A.A. with appellant. To that end, the court directed appellant to participate in an Addiction Prevention and Recovery Assessment (APRA) and weekly drug testing, to attend parenting classes, and to receive psychological and psychiatric evaluations and individual therapy. All these services were made available to her. However, some sixteen months later, on April 24, 2012, the court changed the permanency goal from reunification to adoption in light of appellant's failure to comply with the court-ordered drug testing and therapy, among other problems. In the wake of that goal change, S.E.G. and S.L.G. petitioned to adopt A.A. The child's biological father consented to the adoption, but appellant did not.

Magistrate Judge Fentress presided over a four-day evidentiary hearing on whether to waive appellant's consent and approve the adoption petition. At its conclusion, the magistrate judge, ruling from the bench, found it to be in A.A.'s best interest to do so. The magistrate judge later issued written findings, conclusions of law, and an order to the same effect. Associate Judge Raffinan affirmed the magistrate judge's decision on appellant's motion for review. Whence comes this appeal.

B.

At the hearing, the magistrate judge heard testimony from several witnesses in addition to the parties, the most important of whom proved to be A.A.'s social worker and a psychologist who had evaluated appellant.

Marie Cohen was the social worker assigned to the case by the Board of Child Care (BCC), the organization that ran the foster care program in which A.A. was placed. Cohen testified about her experience with appellant, A.A., and the foster parents, including her efforts to help appellant comply with the court's directives and be reunified with A.A.² As Cohen recounted, she spent considerable time explaining to appellant what she needed to accomplish, made lists with her to help her stay on track, and checked on her progress. Cohen also supervised appellant's visits with A.A. and made referrals for appellant to receive psychiatric and psychological evaluations and therapy and to attend parenting class. To assist appellant with transportation for these services and her visits with A.A., BCC provided appellant with $20 to $40 per week. It continued to provide this funding even though appellant repeatedly failed to document her expenses or participate as she was asked to do. Despite the financial and other assistance she received, appellant's visits with A.A. and her compliance with the court's order were erratic at best. Although she attended the parenting class and received the APRA and mental health evaluations, appellant did not follow through with their recommendations or comply with the court-ordered drug testing and therapy. In addition, she displayed a variety of behaviors that raised concerns about her mental health and her ability to care for a child.

Appellant's visits with A.A. were a chief area of concern. Cohen began overseeing appellant's weekly visitation with A.A. in November 2010. She testified that from then until December 2011, appellant attended only 65% of her scheduled visits, often cancelling on the morning of the day the visit was to occur. After December 2011, and until the court hearing (which commenced in November 2012), there was modest improvement, but only to the extent that appellant made 77% of her scheduled visits. Appellant often was late when she did visit A.A. To make up for her latenesses, BCC allowed appellant to have extra time with A.A.³ In addition, the agency twice changed the location of the visits at appellant's request to make it easier for her to get to them.⁴

Cohen testified that appellant's interactions with A.A. during the visits usually were appropriate. Appellant brought toys, books, and food for A.A. and read stories to her, and the child seemed happy to see her “mommy” and sad when the visits ended. However, appellant's behavior was sometimes worrisome. She often brought other people with her, including different men with whom she appeared to be in a relationship. She referred to two of these men as “daddy” in front of A.A., though neither one was A.A.'s natural father. On one of these occasions, appellant locked herself, A.A., and her male companion in the bathroom for fifteen minutes and insisted that A.A. be transported to the emergency room because she professed to believe the child had been sexually abused while in the care of her foster family. A.A. was not wearing any clothes when appellant locked the bathroom door. The police were called and were able to convince appellant to open the door. On another occasion, appellant again insisted that A.A. had been sexually abused. After each of these incidents, A.A. was seen by a physician, who found no evidence of sexual abuse. The child did have a diaper rash.

While A.A. was in foster care, she was identified as having a developmental speech delay and began seeing a speech therapist. Cohen encouraged appellant to attend the sessions and provided her with financial assistance to do so. Appellant failed to attend them, however, and did not interest herself in A.A.'s progress.

As the magistrate judge noted in her oral findings, another “one of the most serious concerns in this case” was appellant's use of cocaine and her failure to comply with drug testing. Appellant tested positive for cocaine when the testing began in November 2010. Over the next year and a half, she consistently failed to report for testing or, when she did report, she failed to produce a urine sample that could be tested.⁵ Appellant did not provide a testable sample at all between July 5, 2011, and January 6, 2012, or between January 27, 2012, and May 25, 2012. Although she did test negative for cocaine on a few occasions, she also tested positive for cocaine as late as January 2012. It was not until July 2012 (after the permanency goal had been changed to adoption and just a few months before the hearing) that appellant started showing consistently negative drug test results.

Relatedly, appellant failed to pursue recommended drug treatment. Her APRA assessment in early 2011 had resulted in the recommendation that she enter a 12–step recovery program, and later a therapist recommended that she attend a substance abuse support group. But while appellant attended some meetings, she did not consistently hand in attendance forms to Cohen. Appellant never provided documentation to show that she had completed any drug treatment program.

Dr. Seth King, who had performed appellant's psychological evaluation, diagnosed her as having a mood disorder, not otherwise specified, and ADHD, in addition to her abuse of cocaine. Dr. King also believed that appellant needed to be evaluated further for bipolar disorder in light of a number of symptoms she displayed, including her high energy, rapid speech, grandiosity, depression, anxiety, irritability, and a pattern of getting involved in many different jobs and projects but never finishing them. Nonetheless, appellant failed to follow through on the mental health therapy that was recommended and that she had been ordered by the court to pursue.

In early 2011, appellant assured Cohen that she was receiving therapy through an organization called Washington Empowered Against Violence. Upon investigation, Cohen confirmed that this was not true. Accordingly, though appellant denied needing therapy, Cohen helped her make arrangements to receive it at the Hillcrest Children and Family Center. Appellant began attending therapy sessions at Hillcrest in April 2011, but she stopped after a few months. She never provided Cohen with documentation that she had been discharged from therapy. At trial, appellant identified Crystal Hill, a community support worker at Hillcrest, as her therapist. However, Hill testified that she is not a therapist...