IN RE TA.L. IN RE A.L. IN PETITION OF R.W. & A.W. IN RE PETITION OF E.A.A.H. AND T.L.

District of Columbia

Court of Appeals

Nos. 11-FS-1217, 11-FS-1218, 11-FS-1255, 11-FS-1256, DEC - 8 2016

11-FS-1257, 11-FS-1258, 11-FS-1259 & 11-FS-1260

IN RE TA.L.; IN RE A.L.; IN PETITION OF R.W. & A.W.;

IN RE PETITION OF E.A.; ADA-115-09;

A.H. AND T.L. ADA-116-09;

Appellants, NEG-235-08;

ADA-172-09;

ADA-173-09

On Appeal from the Superior Court

of the District of Columbia

BEFORE: WASHINGTON, Chief Judge; GLICKMAN, FISHER, BLACKBURNE-

RIGSBY, THOMPSON, BECKWITH, EASTERLY, and MCLEESE, Associate Judges; and REID,

Senior Judge.

JUDGMENT

This case came to be heard on the transcript of record and the briefs filed,

and was argued by counsel. On consideration whereof, and for the reasons set forth in

the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the judgment of the Superior Court is

affirmed.

For the Court:

Dated: December 8, 2016.

Opinion by Chief Judge Eric T. Washington.

Associate Judge Anna Blackburne-Rigsby and Senior Judge Inez Smith Reid, joining in

full; Associate Judge Phyllis D. Thompson, joining in Parts III and V (except for footnote

38) and the judgment; Associate Judges Stephen Glickman, John Fisher, and Roy

McLeese, concurring in the judgment; and Associate Judges Corinne Beckwith and

Catharine Easterly, joining in Parts III and IV, but dissenting from the judgment.

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

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

IN RE TA.L. 12/8/16

IN RE A.L.

IN RE PETITION OF R.W. & A.W.

IN RE PETITION OF E.A.

A.H. AND T.L., APPELLANTS.

Appeals from the Superior Court

of the District of Columbia

(ADA-115-09)

(ADA-116-09)

(NEG-234-08)

(NEG-235-08)

(ADA-172-09)

(ADA-173-09)

(Hon. Neal E. Kravitz, Trial Judge)

(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.

2

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

3

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 55.

Concurring and dissenting opinion by Associate Judges BECKWITH and

EASTERLY, with whom WASHINGTON, Chief Judge, joins in Part I and II, at page

137.

WASHINGTON, Chief Judge: A.H. and T.L., biological parents of minor

children A.L. and Ta.L., along with the 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

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1

795 A.2d at 690 (“In the context of neglect proceedings after the court has

made an adjudication of neglect, finality has generally been held to mean either a

restoration of physical custody, a termination of parental rights, or an adoption.

An order that is merely a step toward one of those acts is therefore not final and

appealable.”).

4

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

5

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.

6

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

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2

Family Team Meetings are “family group decision-making meetings for

children in the child welfare system[] that enable families to make decisions and

develop plans that nurture children and protect them from abuse and neglect.” 42

U.S.C. § 627 (a)(3)(A) (2010); D.C. Code § 16-2312 (a-1)(1) (2012 Repl.) (Family

Team Meetings in the District “solicit the input of family members, relatives, and

others concerned with the welfare of the child to develop a safety plan approved by

the Agency.”).

7

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

____________________

3

D.C. Code § 16-2301 (9)(A)(ii)–(iii) (2012 Repl.).

8

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. Visits were moved to E.A.’s home in August 2009 where the children

would visit with E.A. and their biological parents for one to two hours per week.

E.A. testified that she requested more visits with the children, but her requests

were denied.

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4

E.A. was also previously identified as a potential kinship care provider at

the Family Team Meeting in March 2008.

9

On October 9, 2009, four months after the first adoption petition was filed,

E.A. filed a petition to adopt A.L. and Ta.L. At a review hearing held on

November 6, 2009, A.H. and T.L. indicated they would consent to E.A.’s adoption

petition because it was in the best interest of the children to be adopted by E.A.

rather than be returned to their own care. E.A. began taking foster care classes in

November 2009 and became a licensed therapeutic foster care provider in

December 2009. An adoption social worker deemed E.A.’s home appropriate for

children. CFSA, however, supported R.W. and A.W.’s petition, citing the foster

parents’ ability to provide a stable home and meet all of the children’s daily and

medical needs, the children’s strong bond with the W.s, E.A.’s limited involvement

in the lives of the children, and concern for the safety of the children while in

E.A.’s care in terms of her ability to protect the children when their biological

parents are around.

The adoption trial was held in May 2011.5 At the time of the adoption trial,

the children had been in R.W. and A.W.’s care for three uninterrupted years. A.H.

and T.L. explained to the court that they consented to adoption by E.A. because

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5

No effort was made to terminate A.H. and T.L.’s parental rights before

this time, which would have provided the biological parents with an appealable

order prior to adoption.

10

they wanted A.L. and Ta.L. to remain in their family. At trial, E.A. claimed that

CFSA had a duty to contact her so that she could become a kinship care provider,

and that she would have had a stronger bond with the children had she been timely

informed. The W.s argued that it was in the children’s best interest to be adopted

by their foster family. Three experts also offered testimony during the adoption

proceeding: Dr. James Venza, who conducted an attachment study between the

children and the W.s; Dr. Sheryl Frank, who conducted a court-ordered bonding

study of all the parties; and Dr. Charles David Missar, who offered a critique of the

aforementioned studies on behalf of A.H., T.L., and E.A.

The W.s called psychologist Dr. Venza as an expert witness. Dr. Venza

conducted a study of the attachment between the W.s and the children in March

2010, when A.L. was three and Ta.L. was two. The children had been with the

W.s for two years at that point, and had been visiting E.A. weekly for

approximately a year. Dr. Venza concluded that A.L. had a secure attachment to

A.W., which is the optimal level of development, and that Ta.L. had an anxious

avoidant attachment to A.W., due in part to his age.6 Dr. Venza noted substantial

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6

In his amicus brief, Dr. Robert Marvin explains that a secure attachment

“is the [healthiest and] most trusting pattern of attachment, in which a child sees

(. . . continued)

11

growth in the children’s cognitive abilities while in the W.s’ care and predicted the

children would regress cognitively if separated from the W.s. Dr. Venza

concluded that the impact of removing the children from the W.s’ care would be

potentially “devastating” to their long-term development, particularly given their

early history of neglect, medical challenges, and developmental delays, and that

the risk of permanent or irreparable harm was “clear” and “unmistakable.” Dr.

Venza also concluded that the impact of the children’s separation from the W.s

would not differ based on where they were subsequently placed. Dr. Venza did

not, however, study A.L. and Ta.L.’s attachment to E.A.

Dr. Frank, a consulting psychologist with the Department of Mental Health’s

Assessment Center and court-appointed neutral expert, also testified about a court-

ordered bonding study she performed in July 2010 between the children, the

biological parents, and all the petitioners. Dr. Frank largely echoed Dr. Venza’s

testimony. Dr. Frank testified that the children’s relationship with their biological

(….continued)

the attachment figure as both a secure base and a safe haven.” An anxious-

avoidant attachment, the next-healthiest type of attachment, “represents a

relationship in which a child is strongly attached to the caregiver. However, the

child may anxiously avoid some of the more-intimate types of parent-child

interactions that are typical of children with secure attachments.”

12

family was positive and that E.A. ably directed the children’s play, set appropriate

limits, had a nice manner with the children, and was attuned to their needs.

However, Dr. Frank concluded that A.L. and Ta.L. were “most attached” to the

W.s and would suffer the greatest harm, in both the short- and long-term, if that

bond were broken, and that the children’s “emotional and behavioral development”

were at a “high risk of derailment.” Accordingly, Dr. Frank agreed with Dr.

Venza’s assessment and recommended that the court grant the W.s’ petition.

E.A. called clinical psychologist Dr. Missar as her expert witness to offer a

critique of Dr. Venza’s and Dr. Frank’s assessments. Although he generally

agreed with their opinions, Dr. Missar opined that Dr. Frank was not in a position

to offer an opinion about the children’s attachment to any party because she had

only conducted an assessment of their bonding. As for Dr. Venza’s evaluation, Dr.

Missar found the primary limitation to be that he did not assess the children’s

attachment to their biological family, including E.A. However, Dr. Missar agreed

with Dr. Venza’s testimony concerning the importance of attachments in child

development and agreed that “severing a child’s strong primary attachment to a

caretaker poses significant risks of short- and long-term harm to the child—risks

that are more severe than the loss of a sense of family identity occasionally

13

experienced by an adopted child.” Dr. Missar testified that these short-term risks

include “behavioral regression,” “signs of withdrawal, signs of anxiety, [and] signs

of depression,” while long-term risks include “a lack of trust in others . . . as well

as some on-going problems with depression and anxiety.”

On August 31, 2011, the trial court granted R.W. and A.W.’s adoption

petition over E.A.’s adoption petition. The trial court stated that it gave “weighty

consideration” to the biological parents’ preference for E.A. to adopt A.L. and

Ta.L., but that evidence presented at trial clearly established that the children’s

primary attachments were to the W.s, not E.A. The trial court concluded that given

the limited time the children had spent with E.A. and their birth parents in the past

three years, it was “inconceivable that the children [had] meaningful attachments

to any of them.” On the basis of the three experts’ testimony—which the trial

court regarded as “very persuasive”—the trial court found that a disruption of the

attachments would pose a significant risk that all or most of the progress of the past

three-plus years would be lost and that the children would regress to their pre-

removal developmental trajectories. Although the trial court found E.A. to be a

“forceful, healthy, and competent person” and stated that it “[did] not doubt her

fitness as a caretaker for Ta.L. and A.L.,” the trial court found the risk to the

14

children’s progress too great if the continuity of care provided by the W.s and the

children’s attachment to the W.s was not maintained. In its analysis, the trial court

assessed the relevant statutory termination of parental rights factors set out in D.C.

Code § 16-2353 (b) and concluded that A.H. and T.L. were withholding their

consent to adoption by the W.s contrary to the children’s best interests and that

placement of the children with E.A. was not in the children’s best interests.

II. Legal Standards

The Supreme Court has long recognized the fundamental right of parents to

raise their children.7 Even when parents have not been “model parents” or the state

has temporary custody of their child, parents retain their “fundamental liberty

interest . . . in the care, custody, and management of their child” and have a

“critical need for procedural protections[.]”8 This court has held that because the

Constitution protects a biological parent’s liberty interest in preserving a

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7

See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (acknowledging

the “[Supreme] Court’s historical recognition that freedom of personal choice in

matters of family life is a fundamental liberty interest”); Stanley v. Illinois, 405

U.S. 645, 651-52 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944);

Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925).

8

Santosky, 455 U.S. at 753.

15

relationship with his or her child, any “state intervention [into that] relationship is

subject to constitutional oversight.” In re T.J., 666 A.2d 1, 12 (D.C. 1995) (citing

In re Baby Boy C., 630 A.2d 670, 673 (D.C. 1993)). The state “must provide the

parents with fundamentally fair procedures.”9

“Absent termination of parental rights or some other finding that the parents

should no longer be permitted to influence the child’s future, the parents’ rights

necessarily include the right to consent, or withhold consent, to the child’s

adoption.” In re T.J., 666 A.2d at 12. However, under our current adoption

statute, a court may grant a petition for adoption without the consent of the natural

parent if it finds by clear and convincing evidence that the consent is being

withheld contrary to the best interest of the child. See D.C. Code § 16-304 (e)

(2012 Repl.). Because granting an adoption without the natural parent’s consent

necessarily terminates the parent’s rights, the court must weigh the same statutory

factors listed in D.C. Code § 16-2353 (b) that are considered in a termination of

parental rights (“TPR”) proceeding10 to decide whether termination is in the child’s

best interest. See In re S.L.G., 110 A.3d 1275, 1285 (D.C. 2015).

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9

Santosky, 455 U.S. at 754.

10

The factors, among those relevant to the present circumstances, are:

(. . . continued)

16

Where there are competing adoption petitions and the biological parents

have consented to adoption by one of the petitioners, “before rejecting the

designated custodian’s petition and severing the child’s relation with his parent . . .

and other relatives . . . the trial court must find by clear and convincing evidence

both that the custody arrangement chosen by the [parents] would clearly not be in

the best interest of the child and that the parent[s’] consent to adoption is withheld

contrary to the child’s best interest.” In re T.J., 666 A.2d at 11 (citing In re J.S.R.,

(….continued)

(1) the child’s need for continuity of care and

caretakers and for timely integration into a stable and

permanent home, taking into account the differences

in the development and the concept of time of

children of different ages;

(2) the physical, mental and emotional health of all

individuals involved to the degree that such affects the

welfare of the child, the decisive consideration being

the physical, mental and emotional needs of the child;

(3) the quality of the interaction and interrelationship

of the child with his or her parent, siblings, relative,

and/or caretakers, including the foster parent; . . .

D.C. Code § 16-2353 (b) (2012 Repl.). Other factors set out in the statute,

not at issue in the present case, are whether the child was abandoned at the hospital

following his or her birth; the child’s opinion of his or her own best interests in the

matter; and evidence of ongoing drug-related activity in the child’s home

environment. See id. § 16-2353 (b)(3A), (b)(4), (b)(5).

17

374 A.2d 860, 864 (D.C. 1977)). Thus, the clear and convincing evidence standard

applies both when determining whether the parents’ consent to adoption can be

waived under § 16-304, and when considering whether granting custody to the

parent’s preferred caregiver is contrary to the best interest of the child. See In re

C.A.B., 4 A.3d 890, 901 (D.C. 2010).

“We review the trial court’s order granting an adoption for abuse of

discretion, and determine whether the trial court ‘exercised its discretion within the

range of permissible alternatives, based on all the relevant factors and no improper

factors.’” In re T.W.M., 964 A.2d 595, 601 (D.C. 2009) (quoting In re T.J., 666

A.2d at 10). We then assess whether the trial court applied the correct standard of

proof, and “evaluate whether the [trial court’s] decision is supported by

‘substantial’ reasoning, . . . ‘drawn from a firm factual foundation’ in the record.”

In re D.I.S., 494 A.2d 1316, 1323 (D.C. 1985) (quoting In re R.M.G., 454 A.2d

776, 790 (D.C. 1982)).

18

III. Appellate Review of Permanency Goal Changes From

Reunification to Adoption

Before we turn to the merits of this appeal, we must first address whether the

constitutional rights of biological parents to raise their children are effectively

protected under the statutory scheme currently utilized in neglect cases, and

whether our decision to preclude review of permanency goal changes in In re

K.M.T. undermines those rights. Our dissenting colleagues disagree with our

decision to address the appealability of decisions which change the permanency

goal in neglect cases from reunification to adoption in this appeal. Post at 62-63.

They contend that the issue is not properly before us because the natural parents

failed to preserve the issue in the trial court. While we agree that this issue was not

raised below we believe that the issue is ripe for consideration. In re K.M.T.

effectively precluded a timely challenge to the permanency goal change and,

therefore, no party will be unfairly prejudiced by our review. We have repeatedly

affirmed our discretion, in the interests of justice, to consider an argument that is

raised for the first time on appeal if the issue is purely one of law, . . . the factual

record is complete, and a remand for further factual development would serve no

purpose. See Pajic v. Foote Prop., LLC, 72 A.3d 140, 145-46 (D.C. 2013)

(quoting District of Columbia v. Helen Dwight Reid Educ. Found., 766 A.2d 28, 33

19

n.3 (D.C. 2001).11 Thus, we are satisfied that addressing this issue at this time is

not inconsistent with our case law that provides a narrow exception to our general

error preservation rule because the question before us is purely one of law and no

further factual record is necessary.

In seeking to protect the rights of biological parents to raise their children,

give full weight to the District of Columbia’s policy preference that children be

placed with family members,12 ensure that all decisions are guided by the best

interest of the children over whom this court exercises parens patriae authority,

and move the children to permanency within timeframes set forth in the Adoption

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11

This court only applies the exception for reviewing unpreserved issues

under Pajic and Helen Dwight Reid to civil cases; the exception does not extend to

criminal cases, where we apply the more rigorous plain error test under Puckett v.

United States, 556 U.S. 129 (2009) and United States v. Olano, 507 U.S. 725

(1993). See, e.g., Fortune v. United States, 59 A.3d 949, 954-55 (D.C. 2013)

(finding plain error under Olano where the trial court failed to obtain a valid

waiver of appellant’s jury trial right in a criminal case); In re Robertson, 19 A.3d

751, 760 (D.C. 2009) (applying the test from Puckett and Olano in a criminal

contempt case); Otts v. United States, 952 A.2d 156, 161-62 (D.C. 2008) (applying

the plain error test under Olano in a criminal, unlawful-drug-possession case).

12

See 42 U.S.C. § 671 (a)(19) (2012); see also 62 Fed. Reg. 36610, 36617

(July 8, 1997).

20

and Safe Families Act (“ASFA”),13 we have endorsed a process that appellants

here, as well as several amici, contend significantly undermines the constitutional

rights of parents to raise their children as well as their ability to effectively

challenge a trial court’s determination that they were not making sufficient

progress towards reunification to warrant CFSA’s continued efforts to achieve that

goal. In fact, appellants, A.H. and T.L., as well as several amici,14 argue that our

efforts to balance the respective rights of the biological parents, the children, and

the prospective adoptive parents have led the court to endorse a process that

actually denies the biological parents their due process rights and undermines any

meaningful opportunity they may have had to challenge permanency goal change

decisions that often preordain the termination of the parent-child relationship.

They argue that we must first require the government to meet its burden of

proving, by a preponderance of the evidence, that reasonable efforts were made to

assist the parents in achieving reunification with their children, that reunification

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13

Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat.

2115, 2128 (1997) (amending section 475 (5)(c) of the Social Security Act,

codified as amended at 42 U.S.C. § 675 (5)(c) (Supp. 1999)).

14

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.

21

efforts failed despite the agency’s reasonable efforts, and that changing the goal

from reunification to adoption is in the best interest of the children.

Specifically, appellants A.H. and T.L., as well as the amici, contend that

when a trial court changes the goal of a neglect proceeding from reunification to

adoption, it informally terminates the pending neglect case and effectively puts the

case on an almost unalterable path to adoption without a full evidentiary hearing or

recourse to an appeal. This contention is not without support in the record of this

case and many others. In fact, it only makes sense that when a child’s permanency

goal is shifted from reunification to adoption, government resources and services

are also shifted away from facilitating reunification, and instead, focus on finding

and supporting potential new and permanent placements for the child.15

While it is ostensibly possible for the biological parents to attain

reunification notwithstanding a decision by the trial court to grant a permanency

____________________

15

42 U.S.C. § 671 (a)(15)(C) (if reasonable efforts are inconsistent with the

permanency plan for the child, that is, the goal has been changed to adoption rather

than reunification, reasonable efforts “shall be made to place the child in a timely

manner in accordance with the permanency plan”); D.C. Code § 4-1301.09a (c)

(2012 Repl.).

22

goal change, this very rarely occurs in practice. See, e.g., In re G.A.P., 133 A.3d

994 (D.C. 2016); In re W.D., 988 A.2d 456, 458-59 (D.C. 2010) (goal change from

reunification to adoption led to grant of foster parent adoption); In re F.W., 870

A.2d 82, 87-88 (D.C. 2005) (affirming trial court’s decision to grant petition for

adoption). More often, the parents’ efforts to build or maintain a positive

relationship with their child is severely hampered by the trial court’s permanency

decision and by the time a parent is given the ability to challenge that decision, the

passage of time and the child’s resulting attachment to the custodial adoption

petitioner tends to make the granting of the adoption petition and the consequent

termination of parental rights a fait accompli. See, e.g., In re R.E.S., 19 A.3d 785,

791 (D.C. 2011); In re An.C., 722 A.2d 36, 40 (D.C. 1998); In re D.R.M., 570

A.2d 796, 806 (D.C. 1990).

It is quite possible that this court’s distaste for terminating parental rights

without a viable alternative permanent living situation for the children is what led

us to endorse this TPR by adoption practice in the first instance. However, we now

recognize that the parents’ right to timely challenge the effective severing of their

relationships with their children is too important a right to sacrifice to achieve

some marginally greater efficiency in moving children to permanency. In sum, we

23

hold that a trial court’s grant of a permanency goal change from reunification to

adoption over the parents’ objection, without an adjudicatory hearing to determine

whether the District has fulfilled its duty to expend reasonable efforts to reunify the

family, violates a parent’s procedural due process rights and, therefore, is

appealable by the parents as a matter of right.

The District of Columbia is among the few remaining jurisdictions that do

not permit appeals of permanency goal changes from reunification to adoption in

neglect proceedings. Indeed, a vast majority of jurisdictions allow appellate

review of goal changes either as appeals as of right or interlocutory appeals.16 In

In re K.M.T., this court departed from the norm in our sister jurisdictions, holding

____________________

16

Sixteen states allow parents to immediately appeal permanency goal

changes as of right (Alabama, Connecticut, Florida, Georgia, Louisiana, Maryland,

Massachusetts, Montana, Nebraska, Oklahoma, Oregon, Pennsylvania, South

Carolina, Vermont, Virginia, and Wyoming). Twenty-six states allow for

interlocutory review of permanency goal changes, either at the discretion of the

appellate court or by certification of the family court (Alaska, Arkansas, Colorado,

California, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky,

Maine, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, New

Mexico, New York, North Dakota, South Dakota, Tennessee, Washington, West

Virginia, and Wisconsin). See also Md. Code, Courts & Jud. Proc. Art. § 12-303

(3)(x); In re Damon, 765 A.2d 624, 628-29 (Md. 2001) (“[A]n order amending a

permanency plan calling for reunification to foster care or adoption is immediately

appealable.”).

24

that permanency goal changes are not among the orders and judgments with the

“finality” necessary to warrant the right of appeal. In re K.M.T., 795 A.2d at 690.

This court has jurisdiction over all “final orders and judgments” of the

Superior Court. D.C. Code § 11-721 (a)(1) (2012 Repl.). An order is not usually

final unless it completely resolves the case on its merits; 17 but, to be final, an order

need not necessarily be the last one in a proceeding. See District of Columbia v.

Tschudin, 390 A.2d 986, 988 n.1 (D.C. 1978). In the context of neglect

proceedings, we have held that orders modifying visitation, and restoring physical

custody, are “final orders” for purposes of appealability; however, we have held

that a change of permanency goal is merely a step towards the termination of

parental rights or an adoption and is not final, and thus not appealable. See In re

K.M.T., 795 A.2d at 690 (citing In re D.M., 771 A.2d 360, 365 (D.C. 2001)).

In holding that a permanency goal change is not appealable, this court in In

re K.M.T. reasoned that such an order “merely sets goals for the children,” and

therefore, “does not affect the parents’ substantive rights in any way.” Id. at 690-

____________________

17

See In re C.A.B., 4 A.3d at 897 (citing In re K.M.T., 795 A.2d at 688).

25

91. At least with respect to goal changes from reunification to adoption, we now

disagree. The decision to change the goal for a child from reunification to

adoption is more than just a step in the neglect process. It is a critical point in the

proceedings, one that often irreversibly dictates the result of a child’s ultimate

custody disposition at a subsequent adoption proceeding. Such an order is at least

as critical a change in a neglect proceeding as an order modifying visitation or

restoring physical custody to one parent, for which we already recognize the right

of a parent to appeal. Given that a goal change to adoption cannot be appealed

under our current neglect process and, recognizing that the decision has the

potential to strongly influence the outcome of a subsequent adoption proceeding,

we are now of the opinion that a trial court’s decision to change the goal from

reunification to adoption must be appealable to adequately protect the

constitutional rights of parents involved in neglect proceedings. Therefore, we

overrule our prior decision, In re K.M.T., and hold that a change in the permanency

goal of a neglect case from reunification to adoption is an order subject to

immediate appellate review.18

____________________

18

An order changing the permanency goal from reunification to adoption,

which as we have said is effectively a final order as it is unlikely that it will be

changed back to reunification, cannot be compared, as the dissent attempts, to an

order removing a child and placing him or her in shelter care, see In re S.J., 632

A.2d 112 (D.C. 1993), or to an order suspending visitation until a parent’s criminal

(. . . continued)

26

We do not overrule In re K.M.T. lightly and recognize that such a decision

will have a significant impact on the process currently used by trial courts in

making permanency goal decisions. Because trial court decisions that change

goals from reunification to adoption will now be appealable, the permanency goal

hearing must be conducted in a way that affords parents their due process rights.

Our review of the record here, as in many other neglect cases, indicates that trial

courts are routinely presented with information contained in the government’s

permanency report without any testimony from those who provided the

information on which that the government’s recommendations are based or any

other evidence that undergirds the findings and/or conclusions found in those

reports. While a report of this kind may be sufficient for a typical neglect review

hearing, it does not pass due process muster when the rights at stake are as great as

a parent’s constitutional right to raise his or her child.

(….continued)

charges are resolved, see In re M.F., 55 A.3d 373 (D.C. 2012), which are both

temporary situations limited in time.

27

It is also important to recognize that permanency goal hearings are required

by ASFA. Concerned that too many children were languishing in foster care,

Congress sought to increase the number of adoptions so children could be moved

more quickly into permanent homes.19 However, in so doing, Congress recognized

the need to strike a balance between pursuing this goal and preserving the right of

families to remain intact. In fact, as a condition for obtaining federal funds to

support their foster care programs, ASFA requires participating states to expend

reasonable efforts to “preserve and reunify” families “to make it possible for a

child to safely return to the child’s home.” 42 U.S.C. § 671 (15)(B)(ii) (2012); see

also D.C. Code § 4-1301.09a (b) (2012 Repl.). In this vein, the Act requires that

within a child’s first twelve months in foster care, and at least every six months

thereafter, state courts must hold a permanency hearing. 42 U.S.C. § 675 (5)(B),

(C) (2012); see also D.C. Code § 16-2323 (a)(4) (2012 Repl.). At these periodic

review points, courts must consider whether the child can be returned to the parent,

42 U.S.C. § 675 (5)(C), and must assess whether the state has expended reasonable

efforts to achieve reunification and whether those efforts should continue, 42

U.S.C. § 671 (15)(C); see also D.C. Code § 4-1301.09a (c); D.C. Super. Ct.

____________________

19

H.R. Rep. No. 105-77, pt. 1, at 8 (1997) (“There seems to be almost

universal agreement that adoption is preferable to [indefinite] foster care and that

the nation’s children would be well served by a policy that increases adoption

rates.”).

28

Neglect Rule 34 (c).20 However, ASFA also establishes a time frame within which

parents have to ameliorate the conditions that led to the finding of neglect or face

the prospect of having their parental rights terminated. Under ASFA, if a child has

been in foster care for fifteen out of the preceding twenty-two months, the state is

required to seek termination of the parents’ rights unless certain exceptions apply.

42 U.S.C. § 675 (5)(E) (2012). One of these exceptions is a safety valve to protect

families who have not received sufficient assistance from the state: termination

need not be sought if “the State has not provided to the family of the child,

consistent with the time period in the State case plan, such services as the State

deems necessary for the safe return of the child to the child’s home, if reasonable

efforts of the type described in section 671(a)(15)(B)(ii) of this title are required to

be made with respect to the child.” Id.21

____________________

20

In the District, CFSA is required “[a]t least 10 days prior to each review

or permanency hearing . . . to submit a report . . . which shall include,” inter alia,

“[t]he services provided or offered to the child and his parent, guardian, or other

custodian.” D.C. Code § 16-2323 (d).

21

Termination also need not be sought if “the child is being cared for by a

relative.” 42 U.S.C. § 675 (5)(E). A third exception to a forced goal change

allows the state to avoid the obligation of filing a termination petition if the “State

agency has documented in the case plan (which shall be available for court review)

a compelling reason for determining that filing such a petition would not be in the

best interests of the child.” Id.

29

Similarly, under our neglect statute, when a child has been adjudicated

neglected and remains in an out-of-home placement, a review hearing must be held

every six months unless a permanency hearing was held during the preceding six

months. D.C. Code § 16-2323 (a)(1). Review hearings are conducted by the court

to determine whether the child is safe, and whether appropriate steps are being

taken to address the needs of the child and to ameliorate the problems that led to

the child being brought into the system. See id. § 16-2323 (b)(1)-(5). A

permanency hearing not only concerns itself with the issues typically addressed at

a review hearing but also requires the court to determine the permanency plan for

the child, including whether, and if so when, the child will be returned to the

parent(s), placed pursuant to an award of legal custody or guardianship, placed in

another permanent living situation, or placed for adoption. See id. § 16-2323

(c)(2). Section 16-2323 (d) of the neglect statute sets out the obligations of the

government preceding a permanency hearing in which the government

recommends a goal change. See D.C. Code § 16-2323 (d). Under this provision,

the government is required to submit a report to the court and the parties that

addresses the services offered to the child and the parents; any evidence that the

issues that led to the neglect disposition have been ameliorated or have worsened;

30

and when, if at all, the child can be returned to the parent’s home. 22 Given the

importance of the permanency hearing, we conclude that unless the parents are

____________________

22

Section 16-2323 (d) provides, in full:

(d) At least 10 days prior to each review or permanency

hearing the Division or the department, agency, or

institution responsible for the supervision of the services

to the child and his parent, guardian, or custodian shall

submit a report to the Division which shall include, but

not be limited to, the following information:

(1) The services provided or offered to the child

and his parent, guardian, or other custodian;

(2) Any evidence of the amelioration of the

condition which resulted in the finding of

neglect and any evidence of new problems

which would adversely affect the child;

(3) An evaluation of the cooperation of the parent,

guardian, or custodian with the Division or the

applicable department, agency, or institution;

(4) In those cases in which the custody of the child

has been vested in a department, agency

institution, or person other than the parent:

(A) The extent to which visitation has

occurred and any reasons why

visitation has not occurred or has

been infrequent;

(B) The estimated time in which the

child can be returned to the home;

and

(. . . continued)

31

prepared to stipulate that reasonable efforts were made by the government to help

the parents ameliorate the problems that led to the Neglect adjudication, due

process requires a more formal hearing than has been afforded to parents in the

past when no such right of appeal existed. At such a hearing, the government must

produce sufficient evidence from which a trial court can find by a preponderance

of the evidence that the presumption in favor of reunification has been rebutted

before the goal can be changed from reunification to adoption. In other words, the

government must prove by a preponderance of the evidence that it has provided the

parents with a reasonable plan for achieving reunification, that it expended

reasonable efforts to help the parents ameliorate the conditions that led to the child

being adjudicated neglected, and that the parents have failed to make adequate

progress towards satisfying the requirements of that plan. If the government

(….continued)

(C) Whether the agency has initiated

or intends to initiate the filing by

the Corporation Counsel of a

motion requesting the termination

of the parent and child relationship

and any reasons why it does not

intend to;

(5) Any other information as may be required by

the rules of the Superior Court of the District of

Columbia.

32

satisfies its burden, a change of permanency goal from reunification to adoption

would be presumptively consistent with the requirement that we act in the best

interest of the child.

Given AFSA’s delicate balancing of interests, it only makes sense that the

primary focus of the permanency planning hearing should be on the parents’

efforts to ameliorate the conditions that led to the neglect and the District’s efforts

to assist them in achieving those goals. Acting on a determination of past neglect,

the District maintains custody of this child with the understanding that such

custody is temporary and that it will expend all reasonable efforts to help the

troubled family and to reunify the child with her parents.23 However, once it is

determined that the goal should be changed to adoption, the District is obligated to

put forth its best effort to make that goal a reality.24 To put a finer point on it, such

____________________

23

Pursuant to ASFA, the presumptive goal is reunification, and states have

an obligation to expend “reasonable efforts” to help families reunify. See 42

U.S.C. § 671 (a)(15)(B)(ii); H.R. Rep. No. 105-77, pt. 2, at 12 (1997).

(“[T]ermination of parental rights is such a serious intervention that it should not

be undertaken without some effort to offer services to the family.”); see also D.C.

Code § 4-1301.09a (b); 45 C.F.R. 1356.21 (b)(2) (2001).

24

Once a goal change from reunification to adoption has been endorsed, the

state assumes the obligation to expend reasonable efforts to achieve that goal. See

42 U.S.C. § 671 (a)(15)(C); D.C. Code § 4-1301.09a (c).

33

goal change orders modify the fundamental terms of the custody order in the

neglect proceeding and mark a critical point in time when the role of CFSA

changes from a supporter of family reunification to an advocate for breaking up

that same family. And, even though we recognize that nothing in the statute

prohibits a court from establishing concurrent goals of reunification and adoption,

the presumption in favor of reunification remains the primary goal of neglect

proceedings with adoption as a favored alternative placement for children when

efforts to reunify the family fail. Thus, a permanency goal decision that might lead

to a situation that destroys family bonds must not be given short shrift when it

comes to protecting the rights of parents to raise their own children. 25

To ensure that the government has made reasonable efforts to reunify the

family, parents must have an opportunity to challenge any statements,

observations, and evaluations that form the basis of CFSA’s recommendation to

the court to change the permanency goal. An appropriate hearing will provide a

____________________

25

It is immaterial that a permanency goal of adoption can theoretically be

changed back to reunification. When a court orders a new permanency goal, this

goal, as its name indicates, is intended to set out the District’s final plan for a

child’s permanent placement. As such, it is akin to an indefinite visitation order,

which we have held to be appealable because it is final unless and until it is

changed. In re D.M., 771 A.2d at 365.

34

forum where the parents can testify, under oath concerning any alleged failure on

the District’s part to provide the requisite services and resources as well as their

own efforts to meet the goals set forth in the plan that was developed to promote

reunification. The hearing will also enable parents to present any other evidence

that they believe supports a decision to continue with reunification efforts. Based

on the evidence presented at the hearing, the trial court will be able to make

findings of fact and conclusions of law that will allow this court to conduct a

meaningful review of the trial court’s permanency decision and determine

“whether the trial court ‘exercised its discretion within the range of permissible

alternatives, based on all relevant factors and no improper factor.’” In re D.S., 88

A.3d 678, 691 n.21 (D.C. 2012) (quoting In re Baby Boy C., 630 A.2d at 673).

More specifically, before approving a permanency goal change that allows

the District to divert its limited resources from reunification to adoption, the trial

court (absent waiver by the parent) must ensure that a goal change is the

appropriate course of action by, at a minimum, making findings that: (1) the

District has in fact expended reasonable efforts to reunify the family as it is

statutorily obligated to do, in accordance with 42 U.S.C. § 675 (5)(E)(iii); (2) the

goals set for the parents were appropriate and reasonable; and (3) other vehicles for

35

avoiding the pursuit of termination, e.g., kinship placements, 42 U.S.C. § 675

(5)(E)(i), have been adequately explored.26 This court will review on appeal

whether the trial court has made the requisite findings to justify a goal change and

whether those findings were adequately supported by the record.27

____________________

26

In the District, placement with relatives is recognized as a preferred

alternative to placement with foster parents. In this case, the District’s failure to

follow up with E.A. at the beginning of the case led to the issue of kinship

placement being unresolved at the time of the permanency goal change. We agree

with the dissent that pursuant to D.C. Code § 16-2323 (c)(4) (2012 Repl.), a

permanency hearing, generally, is not the appropriate time to consider kinship

placements; however, that assumes other options were explored at the beginning of

the removal process as required by law. See also, e.g., 29 DCMR § 6028.2 (k)

(referring to the District’s “hierarchy of permanency plan options,” in the order of

“[r]eturn home to parents” and “placement with relatives”); 29 DCMR § 1642.1

(“The first priority of the foster care system shall be to maintain a child in his or

her home or that of a relative.”); 42 U.S.C. § 671 (a)(19); CFSA, Permanency

Planning Policy 9-11 (May 25, 2011), available at

http://cfsa.dc.gov/DC/CFSA/Publication%20Files/Policy%20Manual/Policies/Prog

ram%20- %20Permanency%20Planning%20(final)(H).pdf (CFSA’s policy that

“[w]hen reunification is not in a child’s best interest, adoption by kin shall be

considered as a permanency goal” and “[a]doption by non-kin is an alternative

permanency option when permanency with kin not in the child’s best interests.”).

27

During the permanency proceeding in this case, the magistrate judge

seemed more intent on resolving the goal change issue “right quick” than in

making the requisite findings to support it. It is possible that the magistrate judge

was prepared to rule based on information gleaned during some of the prior review

hearings and was thus deciding this matter on the basis of information that is not

evident in the record of this appeal. However, there appears to be a dispute of fact

regarding the accuracy of the visitation records in this case, which the magistrate

(. . . continued)

36

Adversarial litigation of these issues followed by appellate review is further

compelled where the District’s shift in support and allegiance can harm the

constitutionally protected parent-child relationship, if not preordain its ultimate

termination. The services and support the District provides to fragile families in

the neglect system are essential to achieving their reunification goals. Presumably,

the District’s intervention would not have been necessary had the parents not been

facing serious challenges and lacking robust support systems; the removal of a

child from her parent’s home may be an additional destabilizing force. Courts may

restrict visitation, lessen parental involvement in the child’s life, and even order

information about the child to be withheld from the parents. D.C. Super. Ct. Neg.

R. 34 (g)(6). These changes can devastate parent-child relationships.28 Time is of

(….continued)

judge does not seem to have recognized was her obligation to resolve, observing

“[n]othing’s been done that proves either way . . . so the goal is changed.” She

also appears to not have questioned the District about its efforts, if any, to assist the

children’s father with visitation after he apparently reported that he was unable to

make his scheduled visitation because he was out of work and had lost his housing.

28

This is so even if the permanency goal change is only to make adoption a

concurrent goal with reunification. Familial relationships may be undermined

when the District shifts from total support for the parent-child relationship and

throws even partial support behind a competing parental candidate.

37

the essence, and if the District’s support for reunification was improperly

withdrawn, it must be restored as soon as possible.29

We are well aware that this decision places an additional burden on the

Superior Court and, while we are confident that these permanency goal hearings

can be conducted efficiently, we recognize that associate judge review of the

magistrate judge order may result in some delay in moving children who have been

adjudicated as neglected into permanent living situations. We are equally mindful

of the potential additional delay that may occur if parents avail themselves of the

right to appeal permanency goal decisions. Because of the limited scope of this

court’s review, and the broad discretion enjoyed by trial courts in making

permanency goal decisions, we are confident that in the vast majority of cases our

review can be adequately addressed using our summary appeals process. To that

end, parties involved in an appeal from a decision by the trial court to change a

____________________

29

Subsequent review at the termination stage is too late. But in any event

this court’s prior decisions make clear that the District’s shortcomings in

expending reasonable efforts to achieve reunification of the natural family are not a

proper consideration at termination proceedings. This precedent essentially treats

as harmless any failure by the District to meet its obligations under ASFA. Our

conception of permanency hearings addresses this deficiency by squarely focusing

the trial court’s attention (and, on appeal, this court’s attention) on the adequacy of

the District’s efforts to reunify the family.

38

permanency goal from reunification to adoption are encouraged to file cross-

motions for summary disposition within the time frames provided for in Rule 4 (c)

of the Rules of the Court of Appeals relating to appeals from Family Court cases.

In the event that this court is unable to resolve the appeal through the summary

disposition process, the appeal still will be expedited consistent with our existing

rules.

IV. Unfitness Requirement and the Termination of Parental Rights

In this case, neither the parents nor E.A. challenged the adoption on the basis

that the trial court failed to first find that the parents, themselves, were unfit to

raise their children. However, we take this opportunity to remind our colleagues

on the trial court that the presumption in favor of a fit parent’s right to raise his or

her children must be rebutted by a finding of parental unfitness before the trial

court can make the ultimate determination to terminate a biological parent’s rights

to raise his or her children.30 The Supreme Court has recognized that the

fundamental right of an individual to parent his or her child, see Stanley, 405 U.S.

____________________

30

Substantive due process requires “a presumption that fit parents act in the

best interests of their children,” Troxel v. Granville, 530 U.S. 57, 68 (2000), and

recognition that the state may not “inject itself into the private realm of the family”

absent a finding of unfitness. Id. at 68-69.

39

at 651,31 may not be terminated without a predicate determination, by clear and

convincing evidence that the individual is unfit to parent.32 Thus, while we have

recognized the “best interest of the child” as the decisive factor in determining

whether to ultimately terminate parental rights in a neglect proceeding, it is critical

that the trial court make a parental unfitness determination before undertaking a

“best interests of the child” analysis.33 Here, the trial court failed to make a

____________________

31

See also Lehr v. Robinson, 463 U.S. 248, 261 (1983) (“[A parent’s]

interest in personal contact with his [or her] child acquires substantial protection

under the due process clause); In re Ko.W., 774 A.2d 296, 304-05 (D.C. 2001).

32

See Santosky, 455 U.S. at 760, 768-71 (holding that proof of unfitness

must rise to the level of clear and convincing evidence before a parent’s rights

could be terminated, and observing that “until the state proves parental unfitness,

the child and his parents share a vital interest in preventing erroneous termination

of their relationship”).

33

The focus on parental fitness is also reflected in the termination

procedures of other states. See, e.g., In re Ann S., 202 P.3d 1089, 1102 (Cal. 2009)

(noting that as a matter of constitutional law, “some showing of unfitness is called

for when a custodial parent faces termination of his or her rights. . . . In that

circumstance, there is no dispute that the best interest of the child would not be a

constitutionally sufficient standard for terminating parental rights” (internal

quotation marks and citation omitted)); In re Five Minor Children, 407 A.2d 198,

199 (Del. 1979) (citing Quilloin, 434 U.S. at 255) (“The State cannot terminate

parental rights by showing it is in the best interests of the children without showing

the parents were unfit”) (overruled on other grounds); In re D.T., 818 N.E.2d 1214,

1225-27 (Ill. 2004) (explaining that Santosky requires clear and convincing

evidence of parental unfitness, and that best interests is a separate inquiry); In re

Scott S., 775 A.2d 1144, 1151 (Me. 2001) (holding that a court seeking to

terminate parental rights must consider parental unfitness before it separately

considers the best interests of the child and noting that this holding “springs from

(. . . continued)

40

finding of parental unfitness and even though the parents have not raised this

failure as an issue on appeal, we would be remiss in not reminding our colleagues

on the trial bench of this obligation to make an independent determination of the

(….continued)

the mandates of the federal . . . constitution[]” which has made clear that “the State

may not remove children from a parent’s care solely on the basis of the best

interests of the children”); In re Rashawn H., 937 A.2d 177, 188 (Md. 2007)

(explaining that in terminating parental rights, the Constitution requires the state to

show “that the parent is ‘unfit’ or that ‘exceptional circumstances’ exist” before

considering best interests of the child); Kenneth C. v. Lacie H., 839 N.W.2d 305,

314 (Neb. 2013) (discussing constitutional constraints and noting that “there is no

clear and convincing evidence that [appellant father] is presently unfit as a

parent”); In re J.J.B., 894 P.2d 994, 1003-04 (N.M. 1995) (holding that statute

establishing “abandonment” as a criterion for TPR was constitutional only because

“abandonment of one’s child establishes parental unfitness”); In re Kristina L., 520

A.2d 574, 579-80 (R.I. 1987) (explaining that the Constitution requires a finding of

unfitness and that “[t]he best interest of the child outweighs all other

considerations once the parents have been adjudged unfit. In essence, a finding of

parental unfitness is the first necessary step”); In re J.P., 648 P.2d 1364, 1376

(Utah 1982) (determining that statute providing for termination of parental rights

based on the best interests of the child alone was “unconstitutional on its face” and

explaining that “[u]nlike the standard of ‘parental fitness,’ which imposes a high

burden on the state in an adversary proceeding, the standard of ‘best interest’ of the

child provides an open invitation to trample on individual rights through trendy

redefinitions and administrative or judicial abuse”); Copeland v. Todd, 715 S.E.2d

11, 20 (Va. 2011) (for a TPR statute “to pass constitutional due process scrutiny,

[it] must provide for consideration of parental fitness and detriment to the child”

because “the Constitution requires more than a mere showing of the child’s best

interests to terminate parental rights”); In re A.B., 232 P.3d 1104, 1109 (Wash.

2010) (en banc) (“The first question here is whether a parent has a due process

right not to have the State terminate his or her relationship with a natural child in

the absence of an express or implied finding that he or she, at the time of trial, is

currently unfit to parent the child. According to the United States Supreme Court,

this court, and our Court of Appeals, the answer is yes”).

41

fitness of birth parents. . . . In In re S.L.G., we recognized that “[p]arental

‘fitness’ is not a statutorily defined term in this jurisdiction” but we said that

“fitness refers to the parent’s intention and ability over time to provide for a child’s

wellbeing and meet the child’s needs.” 110 A.3d at 1286. We further explained

that the basic inquiry is “whether the parent is, or within a reasonable time will be,

able to care for the child in a way that does not endanger the child’s welfare.” Id.

This approach to fitness is consistent with Supreme Court precedent. As the Court

stated in Troxel v. Granville, 530 U.S. 57, 68-69 (2000), “so long as a parent

adequately cares for his or her children (i.e. is fit), there will normally be no reason

for the State to interject itself into the private realm of the family to further

question the ability of that parent to make the best decisions concerning the rearing

of that parent’s children.” See also Part I of the separate opinion of Associate

Judges Beckwith and Easterly in this case, concurring in part and dissenting, in

part. In our opinion in In re Petition of G.A.P., we reiterated our view as to the

distinction between parental fitness and the best interest of the child. “[P]arental

‘fitness’ is not merely a restatement of the ‘best interests of the child,’ as

determined by a TPR or contested adoption proceeding. ‘Fitness,’ rather, is an

independent determination of parental ‘intention and ability over time,’ . . . to

resolve the natural parent’s capacity to ‘care for the child’ and protect the child

42

against ‘undue risk of harm.’” 133 A.3d at 998 (quoting S.L.G., 110 A.3d 1275,

1287 (D.C. 2015)).

Because a child’s best interests are presumably served by being placed with

his or her fit natural parent, see Troxel, supra, a finding of parental fitness will in

most cases preclude a trial court from terminating a natural parent’s parental rights,

except for those truly “exceptional circumstance[s]” where the trial court is

convinced that “a continuation of the parental relationship [between a fit parent

and child is nonetheless] detrimental to the best interest of the child.’” Id. No

finding was made in this case that the parents were unfit ostensibly because once

they chose to support the adoption petition of E.A., as opposed to contesting the

W.’s petition and seeking reunification, the trial court may have felt that such a

finding was unnecessary. However, since the adoption proceeding resulted in the

termination of their parental rights, had the failure of the trial court to make a

fitness determination been challenged on appeal by the parents, it is likely that a

remand would have been necessary.

To require less than an independent determination of parental fitness would

run counter to the Supreme Court’s pronouncements in Troxel and Santosky, the

43

express policy of the ASFA, and the underlying purpose of the neglect process,

which is not to punish parents for past wrongs, but rather to rehabilitate parents and

reunite children with their families. See In re S.L.G., 110 A.3d at 1286 n.24

(“While the [parental] presumption ‘is not absolute’ and ‘must necessarily give

way in the face of clear and convincing evidence that requires the court, in the best

interest of the child, to deny custody to the natural parent in favor of an adoptive

parent,’ the question of parental fitness is almost always at the heart of any

proceeding to terminate parental rights or waive a natural parent’s consent to

adoption.” In re S.L.G., 110 A.3d 1275, 1286 (D.C. 2015) (emphasis added). We

acknowledge that there may be “circumstances in which clear and convincing

evidence will show that an award of custody to a fit natural parent would be

detrimental to the best interests of the child.” Id. (quoting Appeal of H.R. (In re

Baby Boy C.), 581 A.2d 1141, 1176-79 (D.C. 1990) (Ferren, J. concurring)); but

see id. at 1291 (citing the inability “to postulate a realistic factual situation where a

‘fit’ parent can be properly deprived of parental rights based on the ‘best interest of

the child.’”) (Newman, J., concurring). Therefore, while the fitness of the parents

must first be determined in any proceeding that may terminate their parental rights,

if the trial court is satisfied by clear and convincing evidence that reunification of

the child with the family would grievously harm the child, the presumption in

favor of a fit parent raising his or her child gives way to what is in the child’s best

44

interest. It may be the case that trial judges are considering future harm in their

assessment of parental fitness consistent with the way this court articulated the

fitness test in In re S.L.G. However, without an express fitness determination it is

difficult to assess whether that is in fact the case and so the call by Judges Easterly

and Beckwith for the D.C. Council to review and update our neglect and adoption

statutes may prove to be helpful in this regard. Post at 141.

V. “Weighty Consideration” to the Biological Parents’

Preferred Caregiver

In this case, the children’s biological parents and their aunt, E.A., whom the

parents wanted to adopt their children, argue that the trial court, in granting the

adoption petition of the W.s, failed to give weighty consideration to E.A.’s

competing adoption petition as required by our case law. Under current law,

biological parents who are unable or unwilling to raise their own children may

choose to consent to an adoption by a preferred caregiver so that their children can

be raised by someone with whom they have close familial ties. We have

consistently held that when parents whose parental rights are still intact choose a

custodian for their children, that choice is to be given great weight when there are

competing adoption petitions before the court. See In re T.J., 666 A.2d at 11.

45

Under such a scenario, the trial court must find by “clear and convincing” evidence

that the custody arrangement preferred by the parents would clearly be contrary to

the best interests of the child. Id. The court’s rationale underlying this parental

preference is the recognition that biological parents have a right to raise their

children and, therefore, when biological parents consent to an adoption by one of

the petitioners in a contested adoption proceeding, “the trial court cannot merely

weigh the competing adoption petitions against one another, as if they began in

equipoise.” In re K.D., 26 A.3d 772, 778 (D.C. 2011).34 In order to recognize this

parental right in a manner that is consistent with applicable presumptions and the

best interest of the child standard, our case law requires the non-favored petitioner

to prove by clear and convincing evidence that placement of the children with

those petitioners would be detrimental to the children’s best interest. If the non-

favored petitioners meet that burden, they must subsequently prove by a

preponderance of the evidence that granting their adoption petition is in the

children’s best interest before the court can waive the parents’ consent and grant

____________________

34

We need not address here whether the court must give weighty

consideration to the preference of a biological parent who has demonstrated utter

lack of regard for, or even hostility to, the best interest of the child. In such a case,

at least arguably, “the parent is not competent to make . . . a decision” about a

caregiver for the child. See In re T.J., 666 A.2d at 11, 16. And, in any event, it

may be that, in any such cases, the burden of demonstrating that it would be clearly

contrary to the child’s best interest to place the child with the parents’ preferred

caregiver would not be a difficult one.

46

the adoption. “Clear and convincing evidence is evidence ‘which will produce in

the mind of the trier of fact a firm belief or conviction as to the facts sought to be

established. . . .’” In re W.E.T., 793 A.2d 471, 478 n.15 (D.C. 2002) (quoting In re

Estate of Soeder, 220 N.E.2d 547, 574 (Ohio Ct. App. 1966)). The non-favored

petitioner bears the burden of establishing by clear and convincing evidence that

placing the children with the parents’ preferred caregiver would be contrary to the

children’s best interest.35 “If the trial court has not given sufficient consideration

to the [biological] parent[s’] choice . . . we have generally reversed the trial court’s

decision.” In re A.T.A., 910 A.2d 293, 297 (D.C. 2006).

Turning to the merits of this case, we must determine whether the trial court

gave weighty consideration to E.A. as the preferred adoption petitioner for the

children. Thus, we have to determine whether the competing non-preferred

adoption petitioners, the W.s, met their burden of proving by clear and convincing

evidence that the placement of Ta.L. and A.L. with E.A. would be contrary to their

best interests. This is not an easy burden to prove and at the outset, we “recognize,

as we always do in such cases, that it is no small matter for a court to permit the

adoption of a child over the objection of a mother [or father] who loves [her].” In

____________________

35

In re T.W.M., 964 A.2d at 604 (citing In re T.J., 666 A.2d at 16).

47

re W.D., 988 A.2d at 457 (internal quotations marks and citation omitted).

However, this is not a situation where the parents, themselves, are seeking

reunification so the concerns raised above about protecting the rights of parents to

raise their own children and the presumptions involved in that situation are not

implicated here.

Here, appellants claim that Dr. Venza’s attachment study involving the

children and the W.s, and upon which the trial court primarily relied, did nothing to

undermine the presumption favoring the choice of a caregiver by the biological

parents because the attachment study did not also evaluate the children’s

attachment to E.A.36 As a result, they contend that there is no evidence that

placement of the children with E.A. would be detrimental to the best interests of

____________________

36

Appellant E.A. also contends that the trial court erred in not considering

the District of Columbia’s failure to pursue a family placement with E.A. after it

was determined that T.L.’s sister, K.A.-R. could not be certified as a family

placement for A.L. and Ta.L. We have repeatedly held that a “child cannot be

punished for the alleged wrongs of the bureaucracy.” In re L.L., 653 A.2d 873,

882 (D.C. 1995) (quoting In re L.W., 613 A.2d 350, 355 n.11 (D.C. 1992)). At this

stage, which is past the permanency goal change, “the overriding consideration is

the best interest of the child . . . regardless of the defaults of public agencies in

seeking reunification of the family.” In re A.C., 597 A.2d 920, 925 (D.C. 1991).

48

the children,37 that E.A. would not be a fit caretaker for the children, or that E.A.

would not be able to help the children transition to her home and care. Instead,

they argue that the trial court should have “focus[ed] its inquiry on the aunt’s

fitness” rather than the potential harm the children would experience in being

separated from their foster parents of three years. We disagree.

In granting the W.s’ adoption petition and denying the petition of E.A., the

trial court issued findings of fact concerning the development of the children and

relied on expert testimony concerning the closeness of the relationship the children

had with the W.s and with E.A. In its July 7, 2011 order, the trial court gave

appropriate consideration to the relevant statutory factors set out in § 16-2353 (b)

in determining that the parents were withholding consent to adoption contrary to

the best interest of the child, and acknowledged in its analysis the “weighty

consideration” that it gave to the parents’ preference between the competing

adoption petitions.

____________________

37

As Dr. Venza testified, attachment is a dynamic process, and children can

have attachments to several people at once. However, the trial court concluded

that it was “inconceivable that the children had meaningful attachments to [E.A.]”

given the limited time the children had spent with E.A. in the past three years.

49

While the trial court did not find that E.A. would be an unsuitable

caregiver,38 the trial court did find that placement of the children with E.A. would

be contrary to their best interests before granting the W.s’ adoption petition. The

trial court’s finding was based primarily on expert testimony that the children

risked short- and long-term psychological harm if their attachments to their pre-

adoptive foster parents, R.W. and A.W., were broken. While the qualities of the

particular person the biological parents favor is always critical to the court’s

inquiry, the primary issue the court must grapple with, as discussed infra, is

whether there is clear and convincing evidence that the favored custodial

arrangement, including continuation of the relationship between the natural parents

and the children, would be clearly contrary to the best interests of the children. In

re T.W.M., 964 A.2d at 604 (citing In re T.J., 666 A.2d at 16).

____________________

38

We emphasize again that in neglect and adoption proceedings,

preservation of natural parents’ constitutionally-protected right to the care,

custody, and management of their child demands a strong presumption in favor of

placing the child in the care of the natural parent unless the parent is first proven to

be “unfit.” See In re S.L.G., 110 A.3d at 1285-86. The court “cannot

constitutionally use the ‘best interests’ standard to terminate the parental rights of a

‘fit’ natural parent, and instead, grant an adoption in favor of prospective adoption

petitioners simply because they are ‘fitter.’” Id. at 1287-88 (internal quotation and

citation omitted). This presumption, however, does not apply in favor of a

designated caregiver herself. E.A. asserts that the trial court erred in not focusing

its analysis on her own fitness, but this assertion is unavailing because she is not

entitled to the same presumption favoring “fit” natural parents. Instead, her

designation by the natural mother as the preferred caregiver is entitled to “weighty

consideration” as articulated herein.

50

In answering that inquiry, and in addition to the attachment study prepared

by Dr. Venza, the trial court appeared to rely in part on the testimony of Dr. Frank

who conducted a bonding study but testified that breaking the children’s

“attachment” to the W.s would harm the children. Dr. Frank’s testimony appears

to have conflated or, at a minimum, blurred the lines between the bonding and

attachment studies and it is not clear whether the trial court fully recognized the

misstatement. Thus, to the extent the trial court relied on Dr. Frank’s bonding

study to make findings focused on attachment, that reliance was misplaced. While

a bonding study carries some weight in an analysis of the best interest of the

children, it does not carry the same weight as an attachment study, which

according to the evidence presented at trial, has a stronger correlation to emotional

attachment and which, if broken, could cause significant harm to the children.

Therefore, while it is possible that an attachment study might adequately support a

finding by clear and convincing evidence that placement of the children with

someone other than the person to whom they are attached would be detrimental to

their best interests, the same cannot be said for a bonding study because children

can bond with more than one individual. When this case was originally before a

division of this court, the panel was not convinced of the significance of the

distinction being drawn between a bonding study and an attachment study and,

51

therefore, was reluctant to rely on either one or both as adequate support for the

trial court’s decision in this case to grant the adoption petition of the W.s over E.A.

who, by all accounts, also enjoyed a positive relationship with the children.

Further, the panel was concerned that a “one-sided attachment study” prepared by

the W.’s expert without a corresponding study measuring the attachment the

children had to E.A. was not an appropriate or balanced way of measuring the

harm to the children caused by removing them from the care and custody of the

W.s. On en banc review, however, those concerns are no longer shared by those

on the panel or our colleagues who join this part of the opinion. We are satisfied

that the record supports the trial court’s finding that breaking the children’s

attachment to the W.s would significantly harm them, 39 and that is especially the

case now that the children have been in the W.’s care for an exceedingly long

period of time.

____________________

39

While attachment studies are a significant consideration in the weighty

consideration analysis, we caution that there are also other important

considerations for the trial court when weighing a preferred caregiver’s petition for

adoption with that of a non-preferred caregiver, such as the appropriateness of the

preferred caregiver; preservation of extended family ties (a policy reflected in

District of Columbia law); and issues pertaining to racial, cultural, and family

identity, among others. See In re T.J., 666 A.2d at 5, 14.

52

Here, the trial court, in relying primarily on Dr. Venza’s attachment study

found that A.L. had a secure attachment, and Ta.L. had an anxious avoidant

attachment, to A.W. The court also credited Dr. Venza’s testimony that the

children had a primary attachment to A.W. and that they viewed the W.s as their

primary caregivers. Most importantly, Dr. Venza testified that severance of this

type of attachment will necessarily cause significant harm to the children,

regardless of the qualities of the person who serves as their subsequent caregiver.

In addition to the testimony by Dr. Venza and Dr. Frank, Dr. Missar,

appellants’ expert at trial, also acknowledged the value of attachment studies and

conceded that “moving children who are securely attached does carry with it some

psychological risk.” Based on this evidence, the trial court concluded that there

was clear and convincing evidence in the record that the custodial relationship

preferred by the biological parents with an otherwise fit and suitable caregiver

would clearly be contrary to the children’s best interest. Because the trial court’s

conclusion is supported by our prior decisions in a line of similar cases, we have

no basis to disagree here. See, e.g., In re T.W.M., 18 A.3d 815, 821 (D.C. 2011)

(holding that based on undisputed evidence that the prospective adoptee had a

secure attachment to the foster parent, there was clear and convincing evidence that

53

removing the child from the foster parents’ care would be contrary to the child’s

best interests even though the parents’ preferred caregiver, a relative, was fit to

care for the child); In re R.E.S., 19 A.3d at 791 (approving the trial court’s reliance

on the child’s lack of relationship with the preferred relatives, and the child’s clear

attachment to the foster parent, in concluding that the child’s best interests were

served by granting the foster parent’s adoption over the biological parent’s

objection). Thus, we are satisfied that the trial court did not abuse its discretion in

this case. We reiterate the great importance of stability and continuity this court

has recognized in evaluating the best interest of child. See Rutledge v. Harris, 263

A.2d 256, 257-58 (D.C. 1970) (“[A] stable and desired environment of long

standing should not lightly be set aside.”).

While the expert testimony offered by both the appellant and appellee also

recognized the fact that a positive environment in E.A.’s home could have a

mitigating effect on the risk of harm to the children, the attachment study and the

compelling testimony of the W.s and their experts—credited by the trial court and

undisputed by E.A.’s expert—convinces us that disruption of the children’s

attachments with the W.s would pose “unacceptably grave” risks to the children’s

short- and long-term psychological, intellectual, and social development. We are

54

satisfied that the W.s have produced clear and convincing evidence that granting

E.A.’s adoption petition would have been contrary to the best interest of the

children and therefore, the W.s successfully met their burden. Thus, the trial

court’s decision to grant the W.’s adoption petition over the petition filed by E.A.

is supported by the evidence in the record.

VI. Conclusion

For the above reasons, we hold that: (1) permanency goal review hearings

must be conducted in a manner that protects the due process rights of parents; (2)

the trial court must find by a preponderance of the evidence that the government

has made reasonable efforts to help the parents achieve reunification with their

children consistent with the neglect plan that was developed for that purpose

before the trial court can change the goal of a neglect proceeding from

reunification to adoption; (3) a change of the presumptive goal of a neglect

proceeding from reunification to adoption is an appealable final order; and (4)

prior to the termination of parental rights, either through a TPR or through an

adoption proceeding, a finding of parental unfitness must first be made by the trial

court unless truly exceptional circumstances exist or the parents have otherwise

stipulated to their continued unfitness.

55

Having reviewed the permanency goal review hearing in this case, we are

satisfied that even had the rights discussed herein been afforded to the parents in

that proceeding, including the right to appeal the trial court’s decision to change

the goal to adoption, the outcome would not have been different. The

government’s evidence supports a finding that it made reasonable efforts to assist

the parents in meeting the requirements contained in their reunification plan.

Further, there was clear and convincing evidence in the record to support the trial

court’s findings that: (1) adoption by E.A. was detrimental to the children’s best

interest; (2) the biological parents were withholding consent to the W.s’ petition to

adopt contrary to the best interests of the children; and (3) adoption by the W.s was

in the children’s best interest.

Thus, the judgment of the trial court is

Affirmed.

GLICKMAN, Associate Judge, with whom FISHER and MCLEESE, Associate

Judges, join in full, and THOMPSON, Associate Judge, joins in Parts III and IV,

56

concurring and dissenting: This contested adoption case concerns the fate of two

grievously neglected children. The sole question actually presented on appeal is a

narrow one: whether the trial court properly considered psychological attachment

evidence regarding how these children would be harmed if removed from their

foster parents. Somehow, though, in the course of prolonged appellate gestation,

the case has been transformed into a judicial battleground over settled law and a

vehicle for the majority to effect far-reaching changes in our law – changes that we

think will be detrimental to abused and neglected children in the District of

Columbia. At stake is the fundamental proposition embodied in our statutes and

enshrined in our cases, that the paramount consideration when determining

parental rights and child placements is the best interest of the child.

This court did not set out to overhaul our law. It granted rehearing en banc

simply to reconsider a new rule announced in the division’s opinion severely

limiting the use of psychological attachment studies to determine the child’s best

interest in contested adoption proceedings. The division held that a trial court may

rely on an attachment study to find that the weighty consideration due the

biological parents’ preference for a competing caregiver has been overcome “only

if the preferred caregiver has also been given the opportunity to have a meaningful

57

attachment or bonding study conducted between him or herself and the children,

and the study concludes that an appropriate attachment or bond with the preferred

caregiver has not or is not likely to occur.”1 In seeking en banc rehearing, the

guardian ad litem and the foster parents challenged this rule as unprecedented,

unsound, and incompatible with the best-interest-of-the-child standard.

Having now had the opportunity to consider the matter en banc, the court

has decided to abandon the rationale on which the division based its ruling.

Suffice it to say that the court’s sub silentio rejection of the rule fashioned by the

division reflects the fact that no judge on this court is in favor of it. We recognize

that the restriction on the trial court’s consideration of attachment studies in

contested adoption proceedings is unsound because severing a child’s strong

attachment to her foster parents may be traumatic and harmful to the child

regardless of whether she is attached to an alternative caregiver, whoever that

might be. The en banc majority therefore is entirely right, in our view, to uphold

the trial court’s reliance on Dr. Venza’s study of the children’s attachment to their

foster parents even though Dr. Venza did not evaluate the possibility that the

____________________

1

In re Ta.L., 75 A.3d 122, 133 (D.C. 2013), vacated, 91 A.3d 1020 (D.C.

2014).

58

children could develop an attachment to their aunt. Ante at 51-53. Accordingly,

we are pleased to join with the majority of our colleagues (all of them except

Judges Beckwith and Easterly) in affirming the trial court’s decision to grant the

foster parents’ adoption petition in this case. We believe the evidence in its

totality, including but not limited to the testimony of the child psychologists,

overwhelmingly supports the court’s determinations that the biological parents

withheld their consent to the foster parents’ adoption petition contrary to the

children’s best interests, and that placement of the children with their aunt would

not be in their best interests.2

____________________

2

We base our conclusion that the evidence supported the trial court’s

decision on the evidence introduced at the hearing in the trial court rather than on

factual assertions contained in the briefs on appeal. The trial court relied, in part,

on the results of Dr. Venza’s study of the children’s attachment to their foster

family and the unrebutted testimony of all three child psychologist witnesses

describing why and how the children would be harmed if they were removed from

their foster parents. (We do not agree with the suggestion that the trial court erred

by relying on Dr. Frank’s bonding study, or with the view that bonding studies in

general have little probative value in this context. See ante at 50.)

The expert psychological testimony was not the only evidence undergirding

the trial court’s determinations, however. The foster parents’ petition was

supported as well by the children’s pediatrician and the social workers who had

worked with the children and their families. In addition, the court received

powerful evidence of the children’s sickly, emaciated, and developmentally

arrested condition at the time they were removed from their parents’ custody, and

of how the children had thrived in response to the loving care and attention to their

special needs provided by the foster parents. There was evidence, too, of the

aunt’s inability or unwillingness to appreciate and address the children’s medical

(. . . continued)

59

We write separately to express our disagreement with the unwarranted

transmutation of this case into an instrument for rewriting our law in other areas.

No one asked us to grant rehearing en banc in order to overturn this court’s holding

in In re K.M.T. that “an order changing a permanency planning goal is not final or

appealable” as of right.3 Our colleagues’ discussion and resolution of this issue has

absolutely no bearing on the outcome of the present appeals. See ante at 54-55.

The same holds true for the majority’s sua sponte declaration that parental rights

may not be terminated without a predicate finding of parental unfitness. With this

dictum, a bare majority of the court unnecessarily reaches out to disavow this

jurisdiction’s settled constitutional precedent on a matter of fundamental

importance, and it does so without the benefit of notice to, or briefing by, the

parties or their amici. In our view, which we explain in Part I of this opinion, the

foregoing issues (as well as the issues broached for the first time in the separate

opinion of Judges Beckwith and Easterly) are not properly before us.

(….continued)

and developmental problems and to protect them from their biological parents’

mistreatment.

3

795 A.2d 688, 690 (D.C. 2002).

60

Nonetheless, because our colleagues have chosen to decide these issues, we

are compelled to respond on the merits. And on the merits, we respectfully dissent.

In Part II, we explain why orders changing a child’s permanency goal are not

appealable final orders, and why allowing immediate interlocutory appeals of those

orders as of right is contrary to governing law and detrimental to at-risk children in

foster care.

In Part III, we argue that our colleagues’ elevation of parental rights over the

best interests of the child in termination of parental rights (TPR) and contested

adoption proceedings is contrary to decades of prior decisions of this court and not

required by the Supreme Court decisions on which the majority relies. Our

colleagues fail to appreciate how the vital interests of children may conflict with

and outweigh their biological parents’ interests and preferences. We believe it to

be well-settled that the Constitution and our governing statutes permit even fit

parents’ rights to be terminated when necessary to protect a child from harm

because the child’s best interest is paramount.

Lastly, in Part IV, we rebut the contention, advanced only by Judges

Beckwith and Easterly, that fit parents have a presumptive constitutional right to

61

“control” who will adopt their children even where (as in the present case) their

choice would be detrimental to the children’s best interests. Post at 156-157. For

different reasons, we agree that our judge-made doctrine requiring a court to give

“weighty consideration” to whichever adoption petition the biological parents

prefer is problematic and should be re-examined. But we think such re-

examination should await a case in which jettisoning the requirement of special

deference would affect the outcome.

In their separate opinion, Judges Beckwith and Easterly go on to address the

Council of the District of Columbia directly and call for legislation to replace our

supposedly “inadequate” statutes governing adoption and termination of parental

rights. Post at 140-41, 151-155. Our colleagues object to our current statutes

because they establish the best interest of the child, and not parental fitness, as the

primary test governing adoption and TPR decisions. Although we see no need to

further discuss our colleagues’ legislative suggestions, we do note that we strongly

disagree both with our colleagues’ view that our current statutes are

constitutionally inadequate and with many of their specific suggestions for

revision.

62

I. The Court Errs By Undertaking to Decide Issues Not Properly

Presented in These Appeals.

“The premise of our adversarial system is that appellate courts do not sit as

self-directed boards of legal inquiry and research, but essentially as arbiters of

legal questions presented and argued by the parties before them.” 4 Thus, even

when it sits en banc, this court has no “roving commission[]” to pass judgment at

whim on the interpretation and validity of our laws.5 Rather, “[c]ourts should not

decide more than the occasion demands.”6 The principles of forfeiture, waiver,

and materiality to the controversy at hand are meant to restrain courts from

overreaching and deciding questions when it is unnecessary, unwise, and

inappropriate to do so. Moreover, fairness to parties who have a stake in the

resolution of an issue and the desirability of receiving their informed input require

that they be given notice and an opportunity to be heard before the court

undertakes to reach a decision. Regrettably, our colleagues ignore these well-

established principles.

____________________

4

Ford v. United States, 533 A.2d 617, 624 (D.C. 1987) (en banc) (quoting

Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)); accord Rose v. United

States, 629 A.2d 526, 536-37 (D.C. 1993).

5

See Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973).

6

District of Columbia v. WICAL Ltd. P’ship, 630 A.2d 174, 182 (D.C.

1993) (quotation marks and citation omitted).

63

To begin with, because the biological parents did not seek to be reunified

with their children or oppose the change of permanency plan to adoption, we think

the majority is incorrect in stating that these appeals raise “serious concerns” about

In re K.M.T.’s holding. Ante at 3. In fact, while the biological parents complain

on appeal about the effects of permanency goal changes and urge us to permit

interlocutory appeals from them as of right, they did not present these complaints

in the trial court despite multiple opportunities to do so.7 They did not seek an

evidentiary hearing on the change in goal or claim they were prejudiced by the

supposed deprivation of such a hearing. They did not dispute the material

accuracy or the sufficiency of the magistrate judge’s factual findings underlying

the change in goal, and they did not request additional findings. 8 They conceded in

the trial court proceedings that they had not complied with the conditions for

____________________

7

The children’s aunt has not raised any challenges to the permanency goal

changes.

8

The magistrate judge changed the children’s permanency goals at a

permanency review hearing after the children had been in foster care for

approximately fourteen months because, in that time, the biological parents had not

(1) complied with court-ordered drug testing and drug treatment, (2) regularly

attended couples’ counseling (despite their history of domestic violence that had

led to their own arrests and their children’s removal), (3) secured stable housing or

employment, (4) consistently visited their children, or (5) involved themselves in

their children’s medical care and National Children’s Center Services.

64

reunification. They did not maintain that they were fit to care for their children or

advocate for the children to remain in foster care (rather than be adopted) while

they continued to work toward reunification. The biological parents did not claim

that the Child and Family Services Agency (CFSA) had failed to make reasonable

efforts to help them achieve reunification, and they did not object to any supposed

discontinuation or curtailment of those efforts attendant on the goal change.9

Furthermore, the biological parents did not challenge or appeal the goal change.

Even now, on appeal from the final adjudication, they have not claimed that the

magistrate judge abused her discretion in deciding that the children’s permanency

goal should be changed to adoption. The division acknowledged this when it

concluded that “this case is not the appropriate vehicle for reconsidering” In re

K.M.T., and that “had an appeal been taken from the order changing the

____________________

9

In fact, even after the goal change, the CFSA continued to facilitate the

services ordered for the biological parents and their visitation with their children.

The biological parents did not demonstrate improvement, however.

Of particular note, the biological mother gave birth to another son a year

after the permanency goal was changed. When he was four months old, this child

had to be removed from the biological parents’ care after another incident of

domestic violence, in which he sustained a severe head injury that resulted in

hemorrhaging in his brain. In the ensuing neglect case, the biological mother was

ordered to drug test, attend parenting classes, undergo a mental health assessment,

and participate in individual therapy and visitation. She was not compliant.

65

permanency goal from reunification to adoption there would not have been a

different outcome.”10

Following the goal change, the biological parents chose not to pursue

reunification with their children and not to oppose adoption as the goal. At a

subsequent permanency hearing in November 2009, they supported the adoption

petition of the aunt. They never contended that the goal change prevented or

impeded them from opposing the termination of their parental rights or the

competing adoption petition filed by the foster parents.

In addition, the biological parents told the trial court that a finding of their

own unfitness to parent the children was unnecessary because they were not

seeking to preserve their parental rights. Even on appeal they have not argued that

the trial court erred in terminating their rights without a finding of unfitness.

____________________

10

In re Ta.L., 75 A.3d at 130 & n.4 (“There is nothing in the record to

suggest that [the biological parents] were in substantial compliance with the trial

court’s order or that they were moving towards reunification in a timely fashion.

Moreover, appellants are not challenging on appeal the trial court’s decision that

the permanency goal be changed from reunification to adoption[.]”).

66

In short, the biological parents waived or forfeited any claim of error in

connection with the goal change, including any claim that they should have been

able to appeal it,11 and any claim of error in connection with the lack of an express

finding of their unfitness. For that reason alone, this court should not undertake to

address any of these issues in this case.12 There is no necessity for the en banc

court to depart from settled principles constraining judicial review – especially

with respect to a constitutional claim not even raised on appeal.13

____________________

11

In re Antj.P., 812 A.2d 965, 968 (D.C. 2002) (holding that biological

mother forfeited her claim that the agency “failed to provide adequate services

geared to her special needs so that she could be reunited with her children” when

she raised it for the first time in her appeal from the termination of her parental

rights) (internal quotation marks omitted).

12

D.D. v. M.T., 550 A.2d 37, 48 (D.C. 1988) (“Questions not properly

raised and preserved during the proceedings under examination, and points not

asserted with sufficient precision to indicate distinctly the party’s thesis, will

normally be spurned on appeal.”) (quoting Miller v. Avirom, 384 F.2d 319, 321-22

(D.C. Cir. 1967)); see also, e.g., Williams v. Gerstenfeld, 514 A.2d 1172, 1177

(D.C. 1986) (“As a general rule, matters not properly presented to a trial court will

not be resolved on appeal. . . . A court deviates from this principle only in

exceptional situations and when necessary to prevent a clear miscarriage of justice

apparent from the record.”).

13

See Rose v. United States, 629 A.2d 526, 536-37 (D.C. 1993) (“Where

counsel has made no attempt to address the issue, we will not remedy the defect,

especially where important questions of far-reaching significance are involved. . . .

This is not to say an appellate court is absolutely precluded from reaching an issue

sua sponte; it is not. . . . But even when the courts have elected to do so, as in a

sua sponte analysis of harmless error, . . . they have done so only when a statute

required it or when the record was not complex and resolution of the issue was

(. . . continued)

67

One result of the biological parents’ forfeiture and waiver is the absence of a

record showing that they were prejudiced by the unavailability of an immediate

appeal of the permanency goal change or by any of the alleged evidentiary

deficiencies in the permanency hearing our colleagues identify on their own. In

fact, as the division recognized, the goal change was advantageous to the

biological parents because “[t]he trial court, by changing the permanency goal to

adoption, provided the impetus for CFSA to become involved in providing services

to [the aunt] and thus effectively helped facilitate [the biological parents’] goal of

placing the children with [her].”14 We shall see that the lack of record support also

undermines key factual assertions made in the majority opinion to justify its legal

conclusions regarding goal changes.15

(….continued)

easy, beyond serious debate.”) (internal punctuation, brackets, citations and

footnotes omitted).

14

In re Ta.L., 75 A.3d at 130.

15

In response to our objections, the majority argues that we have discretion

to consider the appealability of permanency goal changes because the question is

purely one of law, the factual record is complete, and a remand for further factual

development would serve no purpose. Ante at 18-19 (citing Pajic v. Foote Prop.,

LLC, 72 A.3d 140, 145-46 (D.C. 2013), and District of Columbia v. Helen Dwight

Reid Educ. Found., 766 A.2d 28, 33 n.3 (D.C. 2001)). But those conditions are not

(. . . continued)

68

As the government aptly says in its brief, because the issues regarding

permanency goal changes have no bearing on the parties’ rights and no effect on

the outcome of these appeals, what the biological parents (and the amici supporting

them) have requested (and now, in the majority opinion, received) from this court

is nothing more than an advisory opinion on those issues. The same is true of the

majority’s sua sponte discussion of the need for a finding of unfitness to support a

termination of parental rights.

“An issue is ripe for adjudication only when the parties’ rights may be

immediately affected by it.”16 Our judicial duty “is to decide actual controversies

by a judgment which can be carried into effect, and not to give opinions upon moot

(….continued)

met here, for the absence of any meaningful factual record and the consequent

dubiousness of the majority’s key factual assertions impair this court’s ability to

give an informed answer to the legal question presented. Furthermore, of course,

we normally exercise our discretion to address a question raised for the first time

on appeal only when we find it necessary to do so because the answer would affect

the outcome of the appeal and prevent a clear miscarriage of justice – not when, as

here, the answer concededly is irrelevant to the outcome and does not correct any

injustice in the matter.

16

Allen v. United States, 603 A.2d 1219, 1228 n.20 (D.C. 1992) (en banc).

69

questions or abstract propositions, or to declare principles or rules of law which

cannot affect the matter in issue in the case before it.”17 Accordingly, “as a general

rule, this court will decide only such questions as are necessary for a determination

of the case presented for consideration, and will not render decisions in advance of

such necessity, particularly when the question is a constitutional one, or involves

the construction of a statute.”18 Except in extraordinary circumstances not present

here, we do not issue advisory opinions. Our colleagues ignore this “basic

limitation upon the duty and function of the [c]ourt.”19

Finally, in elevating the rights of putatively fit parents over the welfare and

rights of their children, our colleagues render an unrequested and potentially

transformative constitutional ruling without having afforded the parties and their

amici the opportunity to brief the issues. We suspect this will come as a particular

____________________

17

Local No. 8-6, Oil, Chem. & Atomic Workers Int’l Union v. Missouri, 361

U.S. 363, 367 (1960) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)); accord,

In re D.T., 977 A.2d 346, 352 (D.C. 2009).

18

District of Columbia v. WICAL Ltd. P’ship, 630 A.2d 174, 182 (D.C.

1993) (quoting Johnson v. Morris, 557 P.2d 1299, 1305 (Wash. 1976) (en banc))

(emphasis added; brackets omitted).

19

Local No. 8-6, Oil, Chem. & Atomic Workers Int’l Union, 361 U.S. at

368.

70

shock to the institutional litigants in this case that will continue to be involved with

regularity in TPR and contested adoption cases – the District and the Children’s

Law Center. It is ill-advised, unfair to the parties, and contrary to this court’s

norms to proceed in this manner. In the past, when this court has considered

deciding an appeal on a basis “the parties fail[ed] to identify and brief,” we have

taken pains to “ensure procedural fairness . . . by providing each party with the

opportunity to brief” the issue.20 The court has no justification for deviating from

that rule of basic fairness here.

Our disagreement goes beyond the inappropriateness of deciding important

constitutional and statutory issues that are not properly before us in these appeals.

We disagree with our colleagues’ resolution of those issues on their merits as well.

____________________

20

Randolph v. United States, 882 A.2d 210, 226-27 (D.C. 2005); see also

id. at 226 (“[N]o matter whose ox is gored, this court has frequently requested

post-argument briefing of issues not adequately raised by counsel, to the end that,

after both parties have been fully heard, the court is in the best position to render a

sound decision.”).

71

II. A Change in a Child’s Permanency Goal From Reunification to Adoption

Is Not a Final Order

With exceptions not relevant here, this court’s jurisdiction over appeals from

the Superior Court is confined by statute to the review of “final” orders and

judgments.21 “Normally, an order or judgment is deemed final ‘only if it disposes

of the whole case on its merits so that the court has nothing remaining to do but to

execute the judgment or decree already rendered.’”22 This court held in In re

K.M.T. that “an order changing a permanency planning goal is not final or

appealable” because “it is only a step toward the final act of adoption and does not

yet affect or alter the parent’s legal rights with respect to the children.” 23 In our

view, this holding was and remains correct.

____________________

21

D.C. Code § 11-721 (a)(1) (2012 Repl.); Rolinski v. Lewis, 828 A.2d 739,

745 (D.C. 2003) (en banc). Review of a magistrate judge’s decision by an

associate judge of the Superior Court (which is a prerequisite to any review of that

decision by the Court of Appeals) similarly is limited to “final” orders and

judgments. See D.C. Fam. Ct. R. D (e)(1)(a) & cmt.

22

Rolinski, 828 A.2d at 745-46 (quoting In re Estate of Chuong, 623 A.2d

1154, 1157 (D.C. 1993) (en banc)).

23

In re K.M.T., 795 A.2d 688, 691 (D.C. 2002).

72

Yet the majority overrules In re K.M.T. It reasons that a change in the

permanency goal from reunification to adoption is “effectively a final order” even

though more remains to be done, ante at 25-26 n.18, and that “an order need not

necessarily be the last one in a proceeding” to be final. Ante at 24 (citing District

of Columbia v. Tschudin24). In our view, however, the majority errs both factually

and legally in its characterization of the effects of a goal change from reunification

to adoption. The goal change does not satisfy the finality requirement of our

jurisdictional statute because it is not conclusive in itself and does not satisfy the

strict requirements of the collateral order doctrine.

Preliminarily, it should be noted that the question of our appellate

jurisdiction is only statutory, not constitutional. Although the majority opinion

might be read to suggest otherwise, see ante at 22, 24-25, for over a century the

Supreme Court has reiterated that the availability of appellate review is not a

component of due process of law.25 The Supreme Court has specifically

____________________

24

390 A.2d 986, 988 n.1 (D.C. 1978).

25

See Evitts v. Lucey, 469 U.S. 387, 393 (1985); Chaffin v. Stynchcombe,

412 U.S. 17, 24 n.11 (1973); Griffin v. Illinois, 351 U.S. 12, 18 (1956); McKane v.

Durston, 153 U.S. 684, 687 (1894); see also Howell v. United States, 455 A.2d

1371, 1372 (D.C. 1983) (en banc).

73

recognized that the Due Process Clause does not guarantee a right to appeal

decisions terminating parental rights.26 Consistent with this precedent, our court

has held that a parent has no due process right to appeal an order placing her child

in shelter care, even though such an order deprives the parent of physical custody

of the child indefinitely pending the outcome of neglect proceedings.27 If there is

no due process right to appeal decisions terminating parental rights or indefinitely

depriving a parent of physical custody of her child, there surely is no due process

right to appeal mere goal changes.

A. Changing the Permanency Goal From Reunification to Adoption Is

Not Tantamount to a Termination of Parental Rights

The majority asserts repeatedly that a change in the permanency goal from

reunification to adoption is effectively equivalent to a final termination of parental

rights. It is, the majority declares, “a critical point in the proceedings, one that

____________________

26

See M.L.B. v. S.L.J., 519 U.S. 102, 110-11, 120, 124 (1996) (holding that

while the Fourteenth Amendment does not guarantee a right to appellate review of

a TPR decision, once a state affords that right, it may not effectively deny review

to indigent parents by conditioning appeals on their ability to pay record

preparation fees).

27

See In re. S.J., 632 A.2d 112, 112 (D.C. 1993) (dismissing appeal for lack

of jurisdiction).

74

often irreversibly dictates the result of a child’s ultimate custody disposition at a

subsequent adoption proceeding.” Ante at 25. Elaborating, the majority asserts

that goal change orders “modify the fundamental terms of the custody order in the

neglect proceeding and mark a critical point in time when the role of CFSA

changes from a supporter of family reunification to an advocate for breaking up

that same family.” Ante at 3328 Relatedly, the majority repeatedly asserts that the

government must rebut a “presumption in favor of reunification” before the goal

can be changed to adoption, ante at 31, 33, implying that the change in goal effects

a change of some kind in the parent’s legal rights or status.

These and similar assertions by the majority are incorrect and unsupported

by the record before this court. First, a goal change from reunification to adoption

does not constitute a termination of the biological parents’ rights, preclude familial

reunification, or otherwise alter the parents’ legal relationship with their children.

Moreover, it is misleading at best to speak in the permanency planning context of a

“presumption in favor of reunification” with biological parents found to have

abused or neglected their child. The child is in foster care because the presumption

“that it is generally preferable to leave a child in his or her own home” already was

____________________

28

See also ante at 21; id. at 25-26 n.18.

75

rebutted at the disposition hearing following the adjudication of neglect, when the

court determined that the child would not be safe (“cannot be protected”) in the

home of the biological parents.29 This determination was immediately appealable

as of right.30 That reunification thereafter may be a goal that the parents may attain

by making “progress . . . toward alleviating or mitigating the causes necessitating

[the child’s] placement in foster care”31 does not make reunification a

presumption.32

____________________

29

D.C. Code § 16-2320 (a)(3), (a)(3)(C) (2012 Repl.).

30

See In re Na.H., 65 A.3d 111, 114 (D.C. 2013) (“In neglect cases, the

disposition is the final order.”).

31

D.C. Code § 16-2323 (b)(4) (2012 Repl.).

32

Furthermore, under ASFA and our implementing legislation, any

presumption in favor of pursuing reunification evaporates after the child has

remained in foster care for a protracted period of time. Specifically, after a

neglected child has been in foster care for fifteen of the most recent twenty-two

months, the government “shall” file a TPR motion unless the court finds a

“compelling reason” that it would be contrary to the child’s best interest to do so

D.C. Code § 16-2354 (b)(3)(A), (g)(2) (2012 Repl.); see also id. § 16-2355 (2012

Repl.) (requiring court to “determine why a motion to terminate the parent and

child relationship has not been filed” after specified periods of time have elapsed

following the neglected child’s commitment to the custody of a department,

agency, or institution). These provisions are not compatible with a broad

presumption in favor of reunification even after a prolonged period of foster care.

76

Second, a goal change does not alter the terms of the disposition order

entered following the adjudication of the child as neglected.33 Third, as the

majority concedes, the change in goal is not “irreversible.”34

Fourth, a change in the permanency plan to adoption does not “preordain” or

“dictate” the outcome of any subsequent TPR or adoption proceeding. Ante at 20,

25. It does not constitute a determination that the biological parents are unfit; it

has no collateral estoppel or res judicata consequences; it does not relax or reduce

the evidentiary burdens on the government and the adoption petitioners in the TPR

____________________

33

The disposition orders in the present case committed the two neglected

children to the care and custody of CFSA pursuant to D.C. Code § 16-2320 (a)(3).

This disposition remained unchanged until the final decrees of adoption were

entered. The goal change order did not change the children’s placement or their

caregivers. We therefore believe it incorrect to say that goal change orders

“modify the fundamental terms of the custody order in the neglect proceeding.”

Ante at 33.

34

The majority asserts that “[w]hile it is ostensibly possible for the

biological parents to attain reunification notwithstanding a decision by the trial

court to grant a permanency goal change, this very rarely occurs in practice.” Ante

at 21-22 (emphasis added). The cases cited by the majority do not support this

factual claim, and we are aware of nothing in the record or elsewhere that

substantiates it. But even if it were accurate, it would not establish that changing

the permanency goal to adoption is ever the reason for the biological parents’

subsequent failure to attain reunification, let alone that there is a robust causal

relationship. It is equally possible that trial courts are correctly changing the

permanency goal to adoption because there is no reasonable prospect that the

biological parents will be capable of attaining reunification.

77

and adoption proceedings; it does not limit the parents’ participation in those

proceedings; and it is not a factor in the trial judge’s findings and conclusions

therein. At one point, the majority opinion states that the biological parents are

“forced” by the goal change “to make a Hobson’s choice” between contesting the

adoption petition of a “stranger” and consenting to adoption by a family member.

Ante at 4. That too is incorrect. The goal change leaves the biological parents

entirely free to oppose the termination of their parental rights and to argue in the

alternative that, if their rights are to be terminated, it is in their child’s best interest

for the court to grant whichever competing petition they favor.35

Fifth, the change in goal does not mandate or cause the curtailment of

reasonable efforts by the CFSA to reunify the family. The law is otherwise. In

many (though not all) cases of parental abuse and neglect, the CFSA is obligated to

undertake “reasonable efforts . . . to preserve and reunify the family . . . [and] make

it possible for the child to return safely to the child’s home.” 36 There is no

____________________

35

See, e.g., In re F.N.B., 706 A.2d 28, 30 (D.C. 1998).

36

D.C. Code § 4-1301.09a (b)(1), (3) (2012 Repl). The statute provides that

“[i]n determining and making reasonable efforts under this section, the child’s

safety and health shall be the paramount concern.” Id. § 4-1301.09a (a).

Reasonable efforts to preserve the child-parent relationship “shall not be required”

(. . . continued)

78

statutory requirement or presumption that these efforts shall be terminated when a

child’s permanency plan changes to adoption. Rather, the statute specifically

allows “[r]easonable efforts to place a child for adoption [to be] made concurrently

with the reasonable efforts required [to preserve and reunify the family].” 37 Such

concurrent efforts do not require court approval.

Even so, the majority insists that if not as a legal matter, then in actual

practice and effect, “[w]hen a child’s permanency goal is shifted from reunification

to adoption, government resources and services are also shifted away from

facilitating reunification, and instead, focus on finding and supporting potential

new and permanent placements for the child.” Ante at 21. In this way, the

majority asserts, goal changes deprive “fragile families” of services “essential to

achieving their reunification goals,” ante at 36, and “severely hamper[]” biological

parents’ “efforts to build or maintain a positive relationship with their child.” Ante

at 22. “These changes,” the majority declares, “can devastate parent-child

(….continued)

if there has been a judicial determination that the parent subjected any child to

cruelty or engaged in other specified wrongdoing, if the parent’s parental rights

have been terminated involuntarily with respect to a sibling, or if the parent is

required to register with a sex offender registry. Id. § 4-1301.09a (d).

37

Id. § 4-1301.09a (f).

79

relationships” even if reunification remains a concurrent goal with adoption. Ante

at 36. It is on the purported truth of these serious charges that the majority bases

its conclusion that immediate appellate review is necessary because goal changes

“tend[]” to make the granting of an adoption petition and the termination of

parental rights a “fait accompli.” Ante at 22.

But are these and similar broad generalizations made by our colleagues

actually true? Are they grounded in fact? Or, as one might suspect given the

dearth of specifics and hard evidence, does the majority’s conclusion rest on a

weak foundation contrary to the typical realities of child neglect, foster care, and

CFSA’s efforts to reunify families? These questions beg to be asked because the

majority cites nothing to substantiate its allegations. It offers nothing beyond its

vague assurance that they are “not without support in the record of this case and

many others.” Ante at 21.

We have found no support “in the record of this case” for the claim that a

goal change from reunification to adoption results as a practical matter in the

withdrawal of assistance to the biological parents and interference with their efforts

to rehabilitate themselves and recover their neglected children. On the contrary,

80

the record before us actually shows that even after the goal change, the CFSA

continued without interruption to furnish the court-ordered reunification services to

the biological parents and facilitate their visitation with the children. The

biological parents make unsupported assertions in their brief that they and their

children “lost assistance in being reunified” and had “to fend for themselves,” 38 but

those assertions appear to be false. Not only that, the goal change paved the way

for the CFSA to provide services to the children’s aunt when she emerged as the

biological parents’ preferred caregiver.

The majority cites nothing for the proposition that “many other” cases

support its claim, and we are unaware of such supporting authority. The

government represents that it actually is the CFSA’s general “practice [to] afford[]

biological parents the opportunity even after a goal of adoption has been set to

maintain a relationship with the child and show that the goal should be changed

back to reunification.”39 We have no reason to disbelieve this representation

absent evidence to the contrary; the neglect statute permits such concurrent efforts,

which are meant to foster the important public policy of avoiding unnecessarily

____________________

38

Br. for Appellants T.L. & A.H. at 24.

39

Br. for Appellee District of Columbia at 68-69.

81

prolonged stays in foster care while still keeping alive the potential for

reunification.

It is argued that reunification efforts may be discontinued if it is determined

that they would be “inconsistent with the child’s permanency plan.”40 Perhaps this

occurs in some cases, though not surprisingly (given the irrelevance of the

appealability issue to these appeals) the record before this court is uninformative as

to when, why, how often, or to what extent. But as the present case vividly

illustrates, a goal change to adoption need not entail the discontinuation of

reasonable efforts in furtherance of family reunification. Ordinarily, assisting the

biological parents with visitation and a range of rehabilitative services (anger

management and domestic violence assistance, parent training, counseling, mental

health services, substance abuse treatment, and so forth41) is compatible with the

CFSA’s simultaneous support for an adoptive placement.

____________________

40

D.C. Code § 4-1301.09a (c).

41

See D.C. Code § 4-1301.02 (20).

82

In any event, as we explain below, the appealability of a denial of critical

reunification services to which the biological parents might claim a legal

entitlement is a different question from the appealability of a change in a child’s

permanency plan, and it may have a different answer.

B. A Permanency Goal Change From Reunification to Adoption Is Not

a “Final Order” Under the Collateral Order Doctrine

Even if it were shown that, as a practical matter, changing a child’s

permanency plan from reunification to adoption adversely affects the biological

parents’ efforts to regain custody, that would not mean such decisions have the

requisite finality to be appealable as of right. It is true that “[s]ome trial court

rulings that do not conclude the litigation nonetheless are sufficiently conclusive in

other respects that they satisfy the finality requirement of our jurisdictional

statute.”42 This proposition implicates the “collateral order doctrine” enunciated

by the Supreme Court in Cohen v. Beneficial Industrial Loan Corporation43 and its

judicial progeny. But the requirements of the collateral order doctrine are meant to

____________________

42

Rolinski, 828 A.2d at 746.

43

337 U.S. 541, 546 (1949).

83

be quite “stringent,”44 and no party or amicus in this case has even tried to argue

that goal change orders meet them. The majority opinion does not make that

argument either, though it implicitly relies on Cohen.45

The collateral order doctrine applies only to a “small class” of orders: those

that “finally determine claims of right separable from, and collateral to, rights

asserted in the action, too important to be denied review and too independent of the

cause itself to require that appellate consideration be deferred until the whole case

is adjudicated.”46 To come within the doctrine, an order therefore must satisfy

three conditions: It “must (1) conclusively determine the disputed question, (2)

resolve an important issue completely separate from the merits of the action, and

____________________

44

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994).

45

District of Columbia v. Tschudin, the case cited by the majority, ante at

24, applied Cohen’s rationale to hold that an order may be regarded as final and

appealable if nothing more than a ministerial act (e.g., execution of the judgment)

remains to be done to terminate the proceedings in the trial court. 390 A.2d 986,

988-89 (D.C. 1978). This holding is inapplicable to the present case; far more than

a mere ministerial act must occur in the aftermath of a change in the permanency

goal before the neglect, TPR, and adoption proceedings are concluded.

46

Cohen, 337 U.S. at 546; see also, e.g., Will v. Hallock, 546 U.S. 345, 349-

50 (2006); Rolinski, 828 A.2d at 746.

84

(3) be effectively unreviewable on appeal from a final judgment.”47 These

conditions are strictly construed to prevent the collateral order doctrine from

subverting the important policies promoted by the final judgment rule.48 The

Supreme Court thus has explained that a “further characteristic that merits

appealability under Cohen” also must be present, and “that something further boils

down to ‘a judgment about the value of the interests that would be lost through

rigorous application of a final judgment requirement.’” 49 Accordingly, the

“effective unreviewability” requirement is met only when “some particular value

of a high order,” typically “a substantial public interest,” will be imperiled by the

denial of an immediate, interlocutory appeal.50

Orders changing a neglected child’s permanency goal from reunification to

adoption do not satisfy any of the three preconditions for invocation of the

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47

Rolinski, 828 A.2d at 747 (quoting Coopers & Lybrand v. Livesay, 437

U.S. 463, 468 (1978)) (brackets omitted).

48

See Will, 546 U.S. at 349-50. We discuss these policies in the next

section of this Part.

49

Id. at 351-52 (citations omitted).

50

Id. at 352-53. “Otherwise, almost every pretrial or trial order might be

called ‘effectively unreviewable’ in the sense that relief from error can never

extend to rewriting history.” Id. at 351 (internal quotation marks omitted).

85

collateral order doctrine. First, such orders do not “conclusively determine” the

“disputed questions” of reunification and adoption (or any other contested issues,

for that matter). Second, the principal issue the orders tentatively “resolve” is

merely whether the government should move to terminate parental rights and

pursue an adoptive placement. This “resolution” resolves nothing – it is only a

prelude to further litigation of the TPR and adoption issues – and it is intertwined

with, not “completely separate from,” the merits of the action. As for the third

condition, we have seen that permanency goal changes to adoption do not

jeopardize sufficiently substantial interests of the biological parents. If further

proceedings do eventuate in TPR and adoption orders, “effective” review is

available on appeal from the final judgment; in the past, this court has granted

meaningful relief in cases where the record showed that a biological parent was

denied a fair opportunity to achieve reunification.51

Orders that merely change the permanency goal to adoption are not

equivalent to, and should not be confused with, other interim orders that actually

do conclusively deny important legal rights of biological parents for reasons

____________________

51

See, e.g., In re C.T., 724 A.2d 590, 599 (D.C. 1999) (reversing TPR

determination where there was evidence that father “might be on the road to

becoming a fit parent”).

86

separate from the merits of any future TPR and adoption determinations. This

court has held that an order permanently or indefinitely prohibiting a biological

parent from visiting his or her neglected child may fall within that category and be

appealable as a final order.52 Conceivably, an order denying a biological parent’s

claim of statutory entitlement to reasonable reunification services similarly might

be conclusive, important, and separate enough in a particular case to satisfy the

collateral order doctrine. But orders such as these should not be confused with

orders that merely approve a change in the permanency plan for a neglected child

and direct the District to either file a TPR motion or seek to be joined as a party to

a filed adoption petition.53 It is instructive to compare goal changes with other

interim orders in neglect proceedings that we have held not to be appealable by the

biological parents even though the orders can have prolonged and dramatic adverse

consequences for the likelihood of reunification: (1) an order removing a child

from her parent’s physical custody and placing the child in shelter care pending the

adjudication of the government’s allegations of neglect,54 and (2) an order

prohibiting a parent facing criminal charges from even seeing his children until the

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52

In re D.M., 771 A.2d 360, 365 (D.C. 2001).

53

See D.C. Code § 16-2323 (c)(2).

54

In re S.J., 632 A.2d 112 (D.C. 1993).

87

criminal charges are finally resolved.55 If orders such as these do not satisfy the

requirements of finality for purposes of our appellate jurisdiction, it is difficult to

see how orders merely changing a child’s permanency goal could be thought to do

so.

In support of its holding, the majority states that “[t]he District of Columbia

is among the few remaining jurisdictions that do not permit appeals of permanency

goal changes from reunification to adoption in neglect proceedings,” and that In re

K.M.T. “departed from the norm,” inasmuch as “a vast majority of jurisdictions

allow appellate review of goal changes either as appeals as of right or

[discretionary] interlocutory appeals.” Ante at 23. These statements are materially

inaccurate.

First, In re K.M.T. did not even consider the availability of discretionary

interlocutory appeals of goal changes – an entirely different question from whether

goal changes are final and hence immediately appealable as of right. But our

____________________

55

In re M.F., 55 A.3d 373, 379 (D.C. 2012).

88

decision in another case, In re J.A.P.,56 indicates that discretionary interlocutory

appeals from goal change decisions are permitted in this jurisdiction pursuant to

D.C. Code § 11-721 (d).57 Thus, if the majority’s count is accurate, see ante at 23

n.16, the District appears to join at least twenty-six states that allow for

discretionary interlocutory review of changes in the permanency goal from

reunification to adoption – hardly a “departure from the norm.”

Second, far from being an outlier, In re K.M.T.’s holding that a goal change

from reunification to adoption is not a final order appealable as of right is solidly in

the mainstream. A substantial majority of jurisdictions – two-thirds of the states,

according to the survey on which the majority relies – do not permit appeals of

____________________

56

749 A.2d 715 (D.C. 2000).

57

See id. at 716, 719 (considering application for allowance of interlocutory

appeal by the birth mother in a contested adoption proceeding). D.C. Code § 11-

721 (d) provides for the availability of discretionary appeals of certain non-final

rulings and orders in civil cases “other than a case in which a child, as defined in

section 16-2301, is alleged to be delinquent, neglected, or in need of supervision.”

This exclusion does not extend to cases in which the child is no longer merely

“alleged” to be neglected because neglect already has been adjudicated. The

neglect statute draws that distinction—when it speaks of proceedings prior to the

adjudication, it refers to a “child alleged to be neglected” and “allegations” of

neglect, but when it speaks of subsequent proceedings (including permanency

hearings), it refers to “a child [who] is found to be neglected” or “a child [who] has

been adjudicated neglected.” See, e.g., D.C. Code §§ 16-2316.01, -2317, -2320,

-2323 (2012 Repl.).

89

goal changes as of right.58 Moreover, because of differences in the statutory

language from jurisdiction to jurisdiction, the fact that a handful of states do permit

appeals of goal changes as of right holds little significance for us. For example,

the reason the Court of Appeals of Maryland held that changes in the permanency

plan from reunification to adoption are appealable was not because such changes

are final orders, but because Maryland has a specific statutory exception to the

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58

See, e.g., R.N. v. Dep’t of Children & Families, 113 So. 3d 1034, 1034

(Fla. Dist. Ct. App. 2013) (holding that an order changing the permanency goal to

adoption is not an appealable final order); In re Curtis B., 784 N.E.2d 219, 223 (Ill.

2002) (stating that because “all of the rights and obligations set forth in the

permanency order must remain open for reexamination and possible revision until

the permanency goal is achieved[,] . . . there is no reasonable basis upon which we

can determine that a permanency order is [appealable as] a final order”); In re T.R.,

705 N.W.2d 6, 9-11 (Iowa 2005) (holding that a permanency order changing

custody and directing the filing of a TPR petition is not “a final appealable order”);

In re Chubb, 773 P.2d 851, 854 (Wash. 1989) (en banc) (holding that “dependency

review orders are not final” and hence are not appealable as of right); In re H.R.,

883 P.2d 619, 621 (Colo. App. 1994) (“[T]he permanency plan adopted here did

not constitute a final and appealable order because it did not effectuate any change

in permanent custody or guardianship or terminate parental rights.”); In re K.F.,

797 N.E.2d 310, 314-15 (Ind. Ct. App. 2003) (holding that a permanency plan

order is not final, and hence not appealable, because “[t]he only way in which the

permanency plan affects the [parents] is that it approves the initiation of

proceedings which could result in the termination of their parental rights. Such

proceedings will not prejudice the [parents] unless and until termination occurs.”)

(emphasis omitted); In re L.E.C., 94 S.W.3d 420, 425 (Mo. Ct. App. 2003) (“It is

clear that a change in the ‘permanency plan’ [from reunification to adoption] is not

in itself a final adjudication. It is, as the name implies, a ‘plan,’ not a result,

although certain changes are implemented in connection with the plan. The

jurisdiction of the Circuit Court continues, however, and is one of ongoing

management. Accordingly, we do not consider the ruling a final judgment[.]”).

90

final judgment rule permitting such appeals.59 Similarly, goal change orders are

appealable as of right in Massachusetts, Louisiana, Oklahoma, and Oregon not

because the orders are deemed final, but because specific statutory provisions in

those states allow them to be appealed anyway. 60 The statutory exceptions in these

states have no counterpart in the law of the District of Columbia.

C. Permitting Interlocutory Appeals of Permanency Plan Orders Will

Disserve the Policies of the Final Judgment Rule By Threatening to

Prolong the Retention of Children in Foster Care.

The requirement that a trial court proceeding be concluded in its entirety

before an appeal may be taken serves several important public policies. Most

pertinently, those policies include preventing “the unnecessary delays resultant

from piecemeal appeals” and “the harassment and cost of a succession of separate

appeals from the various rulings to which a litigation may give rise.”61 These

____________________

59

See In re Damon M., 765 A.2d 624, 626-28 (Md. 2001) (relying on Md.

Code, Cts. & Jud. Proc. § 12-303 (3)(x) (1998 Repl.)).

60

See Mass. Gen. Laws ch. 119, § 29B (e) (2012); La. Child. Code art. 710

(D) (2015); Okla. Stat. tit. 10A, § 1-5-101 (2009); Or. Rev. Stat. § 419B.476 (8)

(2015).

61

Rolinski, 828 A.2d at 745 & n.8 (internal quotation marks and citations

omitted). Other policies served by the final judgment rule include refraining from

the unnecessary decision of issues that may be mooted by the final judgment,

respecting the role and independence of the trial judge, and fostering efficient

(. . . continued)

91

policies are of utmost importance in proceedings intended to end prolonged stays

in foster care and achieve permanent, stable homes for abused and neglected

children. As amicus curiae Children’s Law Center warns, permitting interlocutory

appeals as of right from permanency plan orders will cause substantial delays in

the overall permanency process – delays that the neglect statute was specifically

written to prevent, and that will cause real harm not only to the very children the

process is designed to protect, but also to biological parents and to prospective

adoptive parents.

(….continued)

judicial administration. Id. These policies too will be disserved by the allowance

of interlocutory appeals of goal changes. For example, issues regarding the

permanency goal change may be rendered moot by a change in the goal back to

reunification or by a final adjudication of a TPR motion and any adoption petition.

See In re Karl H., 906 A.2d 898, 902-03 (Md. 2006); accord, In re Jayden G., 70

A.3d 276, 288, 292 (Md. 2013) (rejecting argument that proceedings to terminate a

parent’s rights must be stayed when the parent appeals a change in the permanency

plan, even though “without a stay of TPR proceedings, the outcome of the parent’s

appeal of a change in the permanency plan may be rendered moot”); see also

Settlemire v. District of Columbia Office of Employee Appeals, 898 A.2d 902, 904-

05 (D.C. 2006) (“In general, when the issues presented are no longer live or the

parties lack a legally cognizable interest in the outcome, a case is moot.

Accordingly, it is well-settled that, while an appeal is pending, an event that

renders relief impossible or unnecessary also renders that appeal moot.”) (internal

citations and quotation marks omitted).

92

Permitting interlocutory appeals of goal changes is sure to add substantial

delay to an already protracted process. These appeals will have to go from the

magistrate judge to an associate judge of the Superior Court for a ruling before the

order then can be appealed to this court.62 It is wishful thinking to suppose that all

these appeals will be disposed of quickly. Consider the following:

In the experience of amicus curiae Children’s Law

Center, which handles approximately one third of all

abuse and neglect cases in D.C., over the past two years

the average time from the date of a magistrate judge

order to an associate judge order is 103 days—ranging

from 54 days to 226 days. During the same two-year

period (April 1, 2012 to April 1, 2014), the average time

from the date of filing a notice of appeal from the

associate judge order to obtaining a decision from [the

Court of Appeals] is 511 days—ranging from 356 days to

741 days. In other words, the total time for the appeal

process from the initial trial court decision to [the Court

of Appeals] ruling in our cases over the past two years

has averaged 614 days. While those neglect, termination

of parental rights, adoption, and custody appeals may

involve more issues than the average permanency goal

____________________

62

See D.C. Fam. Ct. R. D (f) (“An appeal to the District of Columbia Court

of Appeals may be made only after an associate judge of the Superior Court has

reviewed the magistrate judge’s order or judgment pursuant to paragraph (e) of this

rule.”); D.C. Code § 11-1732 (k) (2012 Repl.) (“An appeal to the District of

Columbia Court of Appeals may be made only after a judge of the Superior Court

has reviewed the order or judgment.”); id. at § 11-1732A (d) (2012 Repl.).

93

change appeal, these are all matters that the courts are

currently handling on an expedited timeline.[63]

-+

This court knows all too well how accurate this portrayal is.

Rather than engage with such informative data, the majority opinion

minimizes the concern that overruling In re K.M.T. will mean lengthy interlocutory

appeals in a large number of neglect cases. The opinion hopefully states that

“[b]ecause of the limited scope of this court’s review, and the broad discretion

enjoyed by trial courts in making permanency goal decisions, we are confident that

in the vast majority of cases our review can be adequately addressed using our

summary appeals process.” Ante at 37. Of course, in predicting that our review

will be so limited and deferential to the trial court that the vast majority of appeals

from permanency goal changes will be resolved summarily, the majority implicitly

admits what it has taken pains to deny – that such appeals will provide few if any

benefits to parents (unless they view disruption and delay of the permanency

process as benefits, which is hardly to be encouraged). But while we too expect

____________________

63

Br. of Amicus Curiae Children’s Law Center at 3-4 (footnote omitted).

94

that the costs of the decision to permit interlocutory appeals of permanency goal

changes will greatly outweigh the minimal potential benefits, we think the

majority’s optimism regarding the speed of appellate review is unconvincing for

several reasons.

First, as even two members of the majority are compelled to acknowledge,

before an appeal even reaches this court, it must complete the time-consuming

intermediate appeal within the Superior Court, from magistrate judge to associate

judge.64 Second, the necessary steps of appellate litigation, such as obtaining and

reviewing the record and transcript, briefing, judicial consideration, and opinion-

writing, are time-consuming, and even if our summary appeals process is

completed in months rather than years, that is still an undesirable prolongation of

the time a fragile child remains in foster care.

Third, the majority disregards the potentially transformative consequences of

its holding that the government must “produce sufficient evidence” at a “formal

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64

See post at 138 n.1 (“Streamlining review procedures in this court will

not, however, minimize the time it takes to litigate these matters in Superior Court.

. . . [I]t may take years before a notice of appeal is filed transferring jurisdiction

to this court.”) (emphasis added).

95

hearing” to rebut a “presumption in favor of reunification” by a preponderance of

the evidence in order to secure a change in the permanency plan from reunification

to adoption. Ante at 30-31. This holding will narrow considerably the “broad

discretion enjoyed by trial courts in making permanency goal decisions” that the

majority counts on to ensure swift appellate review.65 Ante at 37.

Fourth, the majority also overlooks the range of issues that can and

predictably will arise in contested goal change hearings. Potential appellate issues

include challenges for abuse of discretion and insufficiency of the evidence (which

the majority’s burden of proof holding will encourage), questions regarding the

admission or exclusion of expert medical and psychiatric testimony and other

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65

In principle, we do not quarrel with the proposition that parents have a

right to an evidentiary hearing at which they may cross-examine adverse witnesses

and present their own evidence if they wish to contest the material factual

allegations supporting the CFSA’s decision to seek a goal change. Parents have

that right. See Super. Ct. Neg. R. 28 (a), (d); see also Super. Ct. Neg. R. 30 (a), 32

(e). Nor do we quarrel with putting the burden on the government to establish that

a change in the permanency plan from reunification to adoption is in the child’s

best interests. This is the general rule. See, e.g., In re Nazier B., 947 N.Y.S.2d

157, 158 (App. Div. 2012). On the other hand, courts in other jurisdictions have

held that the rules of evidence are relaxed at permanency hearings. See, e.g., In re

Ashley E., 874 A.2d 998, 1018 & 1018 n.19 (Md. 2005). The majority’s insistence

on a “formal” adjudicatory hearing strikes us as excessive, and as imposing an

unnecessary burden on the trial court and the other parties in cases in which the

biological parents do not dispute the material facts.

96

evidence pertaining to the parents and their children, and substantive issues of all

kinds (limited only by the ingenuity of counsel) relating to the reasonableness of

plans and efforts to preserve and reunite the family, the parents’ compliance and

progress, the best interests of the children, and other pertinent matters.

Fifth, the majority disregards the complications and delay that will ensue

simply from the fact that there will be multiple parties in these appeals – at a

minimum, the neglected child and the District – who undoubtedly will participate

in the briefing and argument at every stage.

Interlocutory appeals do “not operate to stay” the order appealed from. 66 We

presume this means that the Superior Court will have concurrent jurisdiction over

the case during the pendency of an appeal of an order changing the permanency

goal from reunification to adoption. Perhaps the disruption and delay caused by

these appeals can be mitigated by the exercise of such concurrent jurisdiction.

Nonetheless, we cannot put too much faith in that possibility, for the reality is that

trial judges and litigants eyeing the possible reversal of goal change orders on

____________________

66

D.C. Code § 16-2329 (d) (2012 Repl.).

97

appeal may be understandably reluctant to move forward with the challenged goal

changes or with hearings on TPR and adoption petitions until the appeals are

concluded. The Children’s Law Center advises that, in its experience, “judges

have declined to hold further hearings that are allowed under concurrent

jurisdiction, due to the pendency of appeals.”67

The alarming prospect of adding years of interlocutory appellate delay to the

process of providing permanent homes for neglected and abused children in the

District of Columbia should dissuade this court from relaxing the requirements of

the collateral order doctrine to permit appeals of permanency goal changes. Such

additional delay will frustrate the “strong public policy, enhanced by federal

legislation, disfavoring the protracted retention of children in foster care”68 and

will threaten dire harm to the children who are most at risk.

The District’s neglect statute provides for permanency planning and

permanency hearings to

This text is long and has been trimmed here. Open the source document for the complete record.