In re T.G.M., s. 15–FS–1274 & 15–FS–1275

154 A.3d 95

IN RE Petition of T.G.M. & T.C.M., J.S., Appellant.

Nos. 15–FS–1274 & 15–FS–1275

District of Columbia Court of Appeals.

Argued October 20, 2016

Decided November 18, 2016^*

Ronald A. Colbert for J.S.

Ilana B. Gelfman for T.G.M. and T.C.M., with whom Jessica Kurtz and Melissa Colangelo for Children's Law Center, guardian ad litem for Ja.S. and E.S., were on the brief for appellees.

Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Rhondalyn Primes Okoroma, Assistant Attorney General, filed a statement in lieu of brief for the District of Columbia.

BEFORE: Glickman and Beckwith, Associate Judges; and Belson, Senior Judge.

Per Curiam:

Appellant J.S. appeals the order of the Superior Court waiving his consent to the adoption of his biological children, Ja.S. and E.S., by their foster parents, T.G.M. and T.C.M. (the Ms), and granting T.G.M. and T.C.M.'s petitions for adoption. He argues that the trial court erred in finding him to be an unfit parent for Ja.S. and E.S., that the trial court erred in finding that he was withholding his consent to T.G.M. and T.C.M.'s adoption of Ja.S. and E.S. contrary to the best interests of the children, and that the trial court erroneously failed to give weighty consideration to J.S.'s choice of custodian for his children. For the reasons set forth below, we affirm the trial court's order.

I.

Ja.S. was born in 2002, and her brother, E.S., was born in 2004. For most of their lives, Ja.S. and E.S. lived with their mother, Ed.S.¹ In June 2013, Ja.S. and E.S. were removed from Ed.S.'s care due to allegations of neglect, and the children were placed in the custody of their father, J.S., pursuant to a protective-supervision² order. In September 2013, J.S. was arrested for heroin distribution, in violation of the terms of the protective-supervision order. J.S. was released to a halfway house pending trial in the drug case, but he absconded in October and went "on the run." Since J.S. could not care for them, Ja.S. and E.S. were placed in foster care, in the custody of T.C.M., who is J.S.'s cousin, and her husband, T.G.M.

In February 2014, the Ms filed petitions to adopt Ja.S. and E.S. An adoption trial was held in late September and early October 2014 before Magistrate Judge Errol Arthur. J.S., who had been rearrested and was incarcerated at the time of the trial, opposed the Ms' petitions and proposed that the court place Ja.S. and E.S. with his mother (the children's grandmother), K.S. Judge Arthur granted the Ms' petitions. Judge Arthur found that J.S. and Ed.S. were unfit parents, that J.S. and Ed.S. had abandoned Ja.S. and E.S., that J.S. and Ed.S. were withholding their consents to the Ms' adoption of Ja.S. and E.S. against the children's best interests, that K.S. had abandoned her motion for guardianship and thus was not a potential alternative caregiver for Ja.S. and E.S., and that even if he were to give weighty consideration to K.S. as a potential caregiver, he would find that it would clearly be against the best interests of the children to be placed with her. Upon J.S.'s motion for review, Associate Judge Florence Pan reviewed Judge Arthur's findings and approved them, except that she rejected his finding that J.S. had abandoned his children. Judge Pan affirmed the grant of the Ms' petitions to adopt Ja.S. and E.S.

II.

J.S. asks this court to reverse the trial court's grant of the Ms' adoption petitions. This court reviews "the trial court's order granting adoption for abuse of discretion. ... [W]e assess whether the trial court applied the correct standard of proof, and then evaluate whether its decision is ‘supported by substantial reasoning drawn from a firm factual foundation in the record.’ " In re T.W.M. , 964 A.2d 595, 601 (D.C. 2009) (quoting In re T.J. , 666 A.2d 1, 10 (D.C. 1995) ). We are not limited to reviewing the findings of the associate judge; rather, "we review the magistrate judge's factual findings as the findings of the trial judge." In re C.L.O. , 41 A.3d 502, 510 (D.C. 2012).

A. J.S.'s Parental Fitness

J.S. first argues that the trial court abused its discretion in finding him to be an unfit parent for Ja.S. and E.S.

The presumption that a child's best interests will be served by being placed with his or her natural parent is overcome when the trial court finds by clear and convincing evidence that the natural parent is unfit. See In re S.L.G. , 110 A.3d 1275, 1285–86 (D.C. 2015) ; In re J.F. , 615 A.2d 594, 598 (D.C. 1992). Judge Arthur made such a finding, relying on evidence that J.S. was arrested within three months of Ja.S. and E.S.'s placement with him, that he failed to reach out to the Child and Family Services Agency or otherwise make arrangements for Ja.S. and E.S. after his arrest, that he absconded from the halfway house, and that he "failed to provide any financial, emotional, personal support" during the time after his arrest and abscondment. Judge Arthur found that this evidence, along with J.S.'s admission that he participated in "criminal activities," showed that J.S. "puts his own needs before his children's needs" and "clearly demonstrate[s] that he has consistently failed to make the right choices [or] exercise appropriate judgment [and that he] clearly lacks the insight as to how his actions affect his children." Judge Pan made similar findings. Both judges also made findings that Ja.S. and E.S. have special needs, due to Ja.S.'s history of trauma and depression and E.S.'s autism.

The trial court's findings are well supported by the record. And the trial court did not abuse its discretion in concluding the findings summarized above to be dispositive of the question of J.S.'s fitness. See S.L.G. , 110 A.3d at 1287 (listing a number of factors bearing on a parent's fitness, including the parent's "failure to maintain contact with, nurture, or support the child"; the parent's "involvement in criminal or other activities that are seriously inimical to a child's welfare"; and the parent's "inability or unwillingness ... to provide a safe and stable home for the child, or to meet a particular child's special needs"). While there was significant evidence that J.S. loved Ja.S. and E.S., wanted to be involved in their lives, and took good care of them for the three or four months that they were in his custody, there was also evidence that J.S. distributed illegal drugs and had been incarcerated for the better part of Ja.S. and E.S.'s lives. It appears that J.S. shielded his children from his involvement in drug distribution, but the trial court did not abuse its discretion in finding that J.S.'s frequent incarcerations³ rendered him unfit to care and provide a stable home for two special-needs children.

B. Waiver of Consent to Adoption

J.S. next claims that the trial court improperly waived his consent to the adoption of Ja.S. and E.S. because there was insufficient evidence that he was withholding his consent against the best interests of the children.

If a parent withholds his or her consent to his or her child's adoption, the parent's consent may be waived if the trial court finds by "clear and convincing evidence that the consent is being withheld contrary to the best interest of the child." S.L.G. , 110 A.3d at 1285. In making this determination, the trial court must weigh the statutory factors set forth in the termination of parental rights (TPR) statute, D.C. Code § 16–2353 (b) (2012 Repl.). Id. Here, Judge Arthur and Judge Pan both considered the TPR factors and properly found by clear and convincing evidence that J.S. was withholding his consent against Ja.S.'s and E.S.'s best interests.

The first TPR factor is "the child's need for continuity of care and caretakers and for timely integration into a stable and permanent home." D.C. Code § 16–2353 (b)(1). Judge Arthur found that this factor weighed in favor of terminating J.S.'s parental rights because the Ms had "demonstrated [that] they can continue to provide a safe, loving, and stable home environment" for Ja.S. and E.S., because the children were "thriving in [the Ms'] care and closely bonded" to them, and because J.S. was not "willing or able to provide [Ja.S.] and [E.S.] the continuity of care that they require and deserve." Judge Pan echoed these findings, also noting that according to the children's social worker, removing Ja.S. and E.S. from the Ms' home "would disrupt the important adjustments they are making and exacerbate feelings of abandonment."⁴

Both judges' findings are firmly supported by the record—specifically, the testimony of the social worker and the Ms, as well as the undisputed fact that Ja.S. and E.S. had already been removed from two different homes, Ed.S.'s and J.S.'s. And both judges properly found that the first TPR factor weighed in favor of terminating J.S.'s parental rights. See C.L.O. , 41 A.3d at 513 (approving the trial court's finding that the first TPR factor weighed in favor of waiving the parent's consent where the child had been moved multiple times, the child had spent a significant period of time with the proposed adoptive parent, and the child had formed a strong bond with the proposed adoptive parent); see also In re K.D. , 26 A.3d 772, 780 (D.C. 2011).

The second TPR factor is "the physical, mental and emotional health of all individuals involved to the degree that such affects the welfare of the child." D.C. Code § 16–2353 (b)(2). Judge Arthur's findings with respect to this factor are similar to those with respect to the first TPR factor, but he also noted that the Ms had taken steps to ensure that the children's educational needs were being met at school (such as obtaining an Individualized Education Plan for Ja.S.), maintained a structured environment at home to help E.S. with his autism, and arranged for therapy for both Ja.S. and E.S. that they had not been receiving when they lived with J.S. Judge Pan made similar findings.

The trial court...