In re: Petition of J.O. & P.O.

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 16-FS-945 & 16-FS-946

IN RE PETITION OF J.O. & P.O., APPELLANTS.

Appeals from the Superior Court of the

District of Columbia

(ADA-95-13)

(Hon. Errol R. Arthur, Magistrate Judge)

(Hon. Hiram E. Puig-Lugo, Associate Judge)

(Argued June 14, 2017 Decided December 12, 2017)

Patricia M. Spicer, for appellants.

Mindy Leon, guardian ad litem.

Melissa Colangelo, Children’s Law Center, as amicus curiae.

Sharon A. Singh, for appellees.

Karl A. Racine, Attorney General for the District of Columbia, with whom

Todd S. Kim, Solicitor General at the time, Loren L. AliKhan, Deputy Solicitor

General at the time, and Rhondalyn Primes Okoroma, Assistant Attorney General,

filed a statement in lieu of brief, for appellee the District of Columbia.

Before BLACKBURNE-RIGSBY, Chief Judge, GLICKMAN, Associate Judge, and

REID, Senior Judge.

Opinion for the court by Chief Judge BLACKBURNE-RIGSBY.

Concurring opinion by Associate Judge GLICKMAN at page 44.

2

BLACKBURNE-RIGSBY, Chief Judge: This case involves two competing

petitions to adopt E.S., a little girl born prematurely to K.S. on October 30, 2012,

and adjudicated neglected on February 27, 2013. E.S.’s foster parents, appellants

J.O. and P.O. (“the O.s”), and E.S.’s guardian ad litem (“GAL”), challenge the trial

court’s decision dismissing the O.s’ adoption petition, and granting the petition of

B.S.W. and S.E.W. (“the W.s”).

On appeal, the O.s argue that weighty consideration should not have been

afforded to the W.s because K.S. was incompetent at the time she designated the

W.s. Without the weighty consideration, the O.s argue, the trial court would not

have found that granting the W.s’ petition was in the best interest of the child, E.S.

Under existing case law, when a parent consents to adoption of his or her

child by a preferred custodian, “unless it is established that the parent is not

competent to make such a decision . . . a parent’s choice of a fit custodian for the

child must be given weighty consideration . . . .” In re T.J., 666 A.2d 1, 11 (D.C.

1995) (emphasis added). In this case, we must clarify the standard for determining

whether a natural parent is competent to designate a preferred caregiver, and thus

recognize those instances when a natural parent’s choice of preferred caregiver is

not entitled to weighty consideration because the parent is not competent to make

3

such a decision. Based on the record before us, we conclude that the natural

parent, K.S., was not competent to designate a preferred caregiver because she

could not make a determination about what was in her child’s best interest and plan

for her child’s future accordingly. The trial court therefore erred in concluding that

K.S.’s designation of the W.s should be afforded weighty consideration. Because

the trial court erred in assessing the W.s under the weighty consideration doctrine,

we remand to the trial court to reevaluate the O.s’ and the W.s’ adoption petitions

based solely on the best interest of the minor child under the termination of

parental rights (“TPR”) factors under D.C. Code § 16-2353 (2012 Repl.).1

1

As K.S. has passed away, we cannot remand this case back to the trial

court for K.S. to testify as to her competency. We also do not consider the O.s’

argument that the trial court erred in denying Mr. Nair’s motion to withdraw as

K.S.’s attorney, because the issue is now moot. See Crawford v. First Washington

Ins. Co., 121 A.3d 37, 39 (D.C. 2015) (holding that “[w]hen there is no possibility

of collateral legal consequences for appellant flowing from the determination on

appeal, mootness is controlling”) (citation, ellipses, and internal quotation marks

omitted); Rales v. Rales, 908 A.2d 64, 70 (D.C. 2006) (“[N]o relief which this

court could grant . . . would make a substantive difference in the outcome of the

case.”).

4

I. Factual Background

A. E.S.’s Placement in Foster Care and Permanency Goals Set for Her

Case

E.S. was born prematurely at Georgetown University Medical Center on

October 30, 2012.2 On the day of her birth, her biological mother, K.S., who had a

history of mental health problems, was admitted to in-patient psychiatric care at the

hospital, where she remained hospitalized until December 13, 2012. The hospital

contacted the Child and Family Services Agency (“CFSA”), and social worker

Sarah McDonald was assigned to E.S.’s case. However, K.S.’s treating

psychiatrist, Dr. Thomas Cummings, Jr., prevented access to K.S. by CFSA social

workers and K.S.’s attorney because of K.S.’s inability to make legal decisions. On

November 16, 2012, E.S. was discharged from the hospital and into the temporary

care of the O.s, who were licensed pre-adoptive foster parents.

2

The identity of E.S.’s biological father is unknown. The trial court

therefore waived his consent pursuant to D.C. Code § 16-304 (d) (2012 Repl.),

which stipulates that where a parent whose consent is required “cannot be located

. . . the consent of that parent is not required.”

5

On November 18, 2012, CFSA held a Family Team Meeting (“FTM”)3 to

develop a case plan for E.S. Because K.S. remained hospitalized, she could not

participate in the meeting. However, E.S.’s maternal grandmother (D.W.),

maternal aunt (J.E.), maternal uncle (E.W.), and E.S.’s GAL, Mindy Leon,

attended the meeting along with B.S.W. and S.E.W. (“the W.s”), who were not

biologically related to K.S. but had been identified by D.W. as potential adoptive

parents for E.S.4 Social worker Sarah McDonald and supervising social worker

Eleanor Sanders also attended the meeting.

At the meeting, Ms. Sanders asked E.S.’s family members if they were

willing to have E.S. placed with them temporarily or if they were interested in

adopting E.S., and none of the family members were willing or able to do so. The

W.s, however, expressed their interest in adopting E.S. The W.s, who resided in

Virginia, were not licensed foster parents, so they agreed to begin the licensing

3

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.”).

4

Ms. W. is the daughter of a woman D.W. knew from church.

6

process, which was expected to take about four months. The result of the meeting

was a goal for potential reunification with K.S., and alternatively, adoption by the

W.s.

On November 19, 2012, CFSA filed a neglect petition with the Family Court

Division of the Superior Court, which entered an order formally placing E.S. in

temporary foster care with the O.s. Social worker Ms. McDonald then attempted

to schedule visits between K.S., E.S., and both of the potential adoptive families,

the O.s and the W.s. On January 22, 2013, K.S. was taken to meet the W.s at

CFSA; K.S.’s mother, D.W., was also present at this meeting. This was also

around the time that court authorized visitation between E.S. and the W.s began.

Ms. McDonald supervised the visit, and during the visit, K.S. told Ms. McDonald

that the W.s might be a good fit for E.S. At this visit, K.S. appeared anxious and

fidgety, and had blood stains in and around her ears, which she admitted were a

result of self-injury. K.S. cancelled her January 8, 2013 visit that was planned with

the O.s as well as the December 31, 2012 and February 5, 2013 visits scheduled

with E.S. Although Ms. McDonald attempted to schedule other dates, K.S.

“wasn’t sure that she wanted to do that.”

7

On February 27, 2013, E.S. was adjudicated neglected under D.C. Code §

16-2301 (9)(A)(ii) and (iii) (2012 Repl.),5 and the trial court committed E.S. to

agency care for a period not to exceed two years. The trial court set concurrent

permanency goals for both reunification with K.S. and for adoption. The trial

court noted that K.S. had a long medical and mental health history. K.S. suffered a

traumatic brain injury at age nineteen. She had a history of substance abuse, mood

symptoms, attention deficient disorder, and had previously been hospitalized on at

least two occasions for psychiatric reasons. Dr. Cummings diagnosed K.S. with

mood disorder, not otherwise specified, and psychosis, not otherwise specified, and

stated that K.S. continues to require inpatient psychiatric hospitalization. The trial

court therefore determined that K.S. was “unable to discharge her responsibility to

and for the child due to her hospitalization, mental incapacity, and lack of

5

The term “neglected child” means a child:

...

(ii) who is without proper parental care or control,

subsistence, education as required by law, or other care

or control necessary for his or her physical, mental, or

emotional health, and the deprivation is not due to the

lack of financial means of his or her parent, guardian, or

custodian; [or] (iii) whose parent, guardian, or custodian

is unable to discharge his or her responsibilities to and

for the child because of incarceration, hospitalization, or

other physical or mental incapacity[.]

8

compliance with mental health treatment.” Additionally, K.S. had little to no

contact with E.S. since her discharge, and had not made any efforts to inquire

about E.S.’s well-being, or provide any information about possible placement

resources for E.S. The trial court also noted that K.S. had not made any “efforts to

have someone else care” for E.S. during the time she was hospitalized, and that

E.S. was “without proper parental care or control.”

B. Petitions for E.S.’s Adoption

On May 2, 2013 when E.S. was seven months old, the O.s filed a petition to

adopt E.S. In that same month, on May 29, 2013, the W.s filed a petition to adopt

E.S. K.S. was served with both adoption petitions in September 2013, while she

was living in New York. Meanwhile, E.S.’s visitation with the W.s increased. On

June 5, 2013, the trial court approved of unsupervised visits with the W.s, and on

June 28th, the court authorized overnight visitation. In early July 2013, E.S. began

weekend overnight visits with the W.s.

In August 2013, the W.s obtained their license as foster parents in Virginia.

Prior to the W.s being approved, social worker Amy Costello conducted a child-

9

specific kinship home study.6 Ms. Costello testified about the many concerns she

had regarding placing E.S. with the W. family, who already had four boys with

various mental health needs and learning disabilities. Ms. Costello also had

concerns about S.E.W.’s anxiety levels and the fact that she “was a little needy

with this baby and how much she wanted to care for the baby . . . almost like

getting her own needs met through this, this baby . . . .” After Ms. Costello raised

her concerns with her supervisor, she was told “there was a strong raising of the

fact that the family was kin.” Ms. Costello then approved the home study with the

understanding that there would be safeguards in place to mitigate her concerns.

She testified that she would not have approved the home study had the W. family

not been identified as kin.7

6

CFSA identified E.S. as kin to the W. family, even though E.S. was not

biologically related to them and they were not godparents to E.S. The CFSA

supervisory social worker, Ms. Sanders, testified that there must be a biological

connection or an affidavit from a parent stating the person seeking kinship status

was a godparent or had a significant connection to the child prior to the child

entering foster care.

7

After giving testimony on June 2, 2014, Ms. Costello became aware of

complaints, within her agency, being made about her testimony. Ms. Costello

testified about these complaints, as well as her subsequent termination on June 4,

2014. Prior to being terminated, Ms. Costello had worked at her agency for five

and a half years.

10

Thereafter, in a letter dated August 21, 2013, CFSA notified the O.s of its

intent to change E.S.’s placement to the W.s’ residence. On August 27, 2013, the

O.s and the GAL requested a Fair Hearing to challenge and stay CFSA’s change in

placement. The Fair Hearing took place over the course of six days between

September 27, 2013 and January 17, 2014. On March 7, 2014, the Fair Hearing

examiner ruled in favor of the O.s and GAL, finding that CFSA had failed to show

by a preponderance of evidence that removal was in E.S.’s best interest. However,

overnight visits between E.S. and the W.s continued.

C. K.S.’s Consent to Adoption by the W.s.

Prior to the Fair Hearing, Kathleen Ambroso, the newly assigned social

worker from March to October 2013, arranged with one of K.S.’s friends, Mr.

Coefed, for K.S. to be brought to CFSA from New York to attend the hearing in

order to “involve [K.S.] in the case.” Ms. Ambroso also testified that her

“understanding of the fair hearing was about placement to determine whether E.S.

would be placed with the W.s.”

On September 27, 2013, the first day of the hearing, K.S. met with Ms.

Ambroso, and Zachary Schaeffer, the shadowing social worker slated to take over

11

K.S.’s case, at the CFSA offices. Ms. Ambroso discussed E.S.’s living

arrangement with K.S. and talked about the two families who were seeking to

adopt E.S; she used simplified legal vocabulary in her explanations to K.S and

“just gave her an over-arching status of the case and the fact that there were two

parties involved and the status of the petitions were being discussed in court.”

Initially, K.S. exhibited confusion about which family E.S. was residing with, and

indicated to Ms. Ambroso that she believed her daughter was residing with the

W.s.8 Ms. Ambroso clarified that E.S. was currently living with the O.s and was

having visits with the W.s. She showed K.S. photos of the W.s from the January

22, 2013 visit in an attempt to explain the situation.

Ms. Ambroso also simplified the current living arrangement in her

explanation to K.S. in an effort to communicate the amount of time E.S. was

spending with each family, explaining that E.S. spends her weeks with the O.s and

her weekends with the W.s, even though this was not the exact schedule. She did

not explain how long this arrangement had been in place, even though overnight

visits of two nights every other week with the W.s had begun recently in July of

8

Ms. Ambroso testified, “She’s [K.S.] confusing the W.’s and the O.’s and

which name went with which party.”

12

2013. Ms. Ambroso then asked K.S. if she wanted to meet with the potential

adoptive families, and helped K.S. develop questions for the families.

K.S. met with the O.s and S.E.W.9 for about fifteen minutes each at CFSA.10

During her meeting with the O.s, E.S. was sleeping. After meeting with the O.s

and S.E.W., K.S. told Ms. Ambroso that she wanted additional time to make a

decision.11 Ms. Ambroso then told K.S. not to feel pressured and that she could

not make a wrong decision. K.S. again exhibited confusion about where her

daughter was residing, stating that she wanted her daughter to be adopted by the

W.s because she was living with them longer.12 Ms. Ambroso clarified the living

situation again, explaining the percentage of time E.S. spent with both families,

and that she was living with the O.s. K.S. then told Ms. Ambroso that she wanted

9

B.S.W. was not present.

10

Ms. Ambroso suggested this amount of time because she did not want to

overwhelm K.S. and because this “was in line with our time restrictions for that

day,” as “Mr. Nair [K.S.’s attorney] had to leave by a certain time.” Mr. Nair was

not present during these meetings as K.S. said he made her “uncomfortable and

nervous.”

11

During the day, K.S. also took three walks outside to calm herself down.

12

S.E.W. testified that, on the morning of the Fair Hearing, K.S. told her

that she came to sign after learning that E.S. was not living with the W.s and that

“it would take a lot for her to change her mind” from them. However, Ms.

Ambroso was with K.S. the entire day and testified that K.S. did not say this.

13

E.S. to continue visiting with both families and that she needed more time to make

a decision on which family to choose for adoption. Ms. Ambroso explained that

the “current visitation schedule was not an appropriate, long-term solution” and

that it “was not an option to just continue visiting with both families.” She told

K.S. that if she did not consent, the decision about E.S.’s permanent placement

would be made in court.

Ms. Ambroso then spoke with K.S.’s attorney, Madhavan Nair, at which

time K.S. told Mr. Nair that she did not want to consent that day. Mr. Nair

reiterated what Ms. Ambroso “had said about the upcoming court hearings and the

importance of her being involved in the case.” Ms. Ambroso also asked Mr. Nair

to explain the different court hearings to K.S., after which Ms. Ambroso again

reiterated her statement about E.S.’s permanent placement being decided in court.

Ms. Ambroso’s testimony at this point was a bit unclear—she stated that K.S. told

her that “she didn’t want to consent today, that she —.” When prompted to

complete her thought, Ms. Ambroso added, “—wanted to be the one to make the

decision on E.S.’s permanency” and “wanted to consent to the W.’s.”

14

At this point, Ms. Ambroso left the conversation, testifying that “consent

was a matter between her [K.S.] and her attorney.”13 Ms. Ambroso subsequently

took Mr. Nair and K.S. to the CFSA notary, where K.S. signed a written statement

of consent, which was notarized that same day and filed for the adoption case.14

On October 18, 2013, the trial court changed the permanency goal for E.S.

from reunification to adoption. That same day, the O.s and GAL filed a motion

13

We note that Ms. Ambroso’s testimony contains apparent contradictions.

After her recollection was refreshed with her September 27, 2013 contact notes,

Ms. Ambroso testified that K.S. had stated that she liked the W.s’ personalities, but

that she wanted more time to make her decision. However, Ms. Ambroso also

testified that “when we asked [K.S.] specifically about why she’s consenting to the

W.’s, she said she liked their personality and I think she said upbringing, like the

way they ran their home.” This contradicts Ms. Ambroso’s assertion that she left

the conversation immediately after K.S. “said she wanted to consent to the W.s”

because “consent was a matter between [K.S.] and her attorney.” It also

contradicts Mr. Schaeffer’s testimony that Ms. Ambroso did not speak with K.S.

about her consent.

14

The September 27, 2013 consent agreement states:

consent to the legal adoption of my child by the

Petitioners B.S.W. and S.E.W., being fully aware that in

the event the Petition is granted by this Court, the minor

child’s name will be changed to that of the Petitioner(s).

I do request for the best interest of my minor child that

the Petition be granted and that a Decree be entered

legalizing the adoption of the minor child by the

Petitioners.

15

seeking to have K.S.’s consent excluded, claiming that K.S. lacked mental capacity

to give consent as shown by her “bizarre behavior”15 on the day she consented.

The motion also asserted that K.S. was not fully informed and was coerced by third

parties into giving consent. On November 15, 2013, the trial court denied the

motion to exclude K.S.’s consent.

D. K.S.’s Attempts to Withdraw Her Consent to Adoption by the W.s

In early November, K.S. contacted her sister J.E as K.S. was coming into

town. During this conversation, K.S. told J.E. that she had given custody to the

family with four boys that had E.S. since birth. J.E. then went to pick up K.S., who

wanted to get a present for E.S. in addition to new earplugs, a new headband to

cover her ears, and an X-ACTO knife, which J.E. did not allow her to purchase.16

After picking out a present for E.S., J.E. took K.S. to visit with E.S. at the O.s’

15

The motion alleged that during the Fair Hearing, K.S. “came to the glass

window of the conference room and appeared visibly upset and agitated as she

asked why her mother was testifying in this matter.” The supplement to the motion

also alleged that K.S. did not pass the initial security screening upon entry to

CFSA on September 27, 2013, because she was carrying an X-ACTO knife on her

person.

16

K.S. exhibited a pattern of self-injurious and delusional behavior focused

on her ears. K.S. told J.E. that “she’s pregnant because she hasn’t been cutting her

ears.”

16

home. On the drive over to the O.s’ home, J.E. explained to K.S. that K.S. had

signed papers for the W. family, and that this was not the family E.S. had been

with since birth. J.E. understood that K.S. was fragile and did not want K.S. to be

surprised that E.S. was currently residing with the O.s, who had actually had E.S.

since birth.

During the visit with E.S. at the O.s’ home, K.S. told the O.s that she did not

know that E.S. had been residing with them the entire time. K.S. expressed to her

sister, J.E., that it would be traumatic for E.S. to be moved, and that she wanted

E.S. to remain where she had lived all along. Following the meeting, on

November 11th and November 18th, K.S. left two voicemail messages for her

attorney, Mr. Nair, stating that she did not want E.S. to be moved, that she wanted

E.S. to stay with the O.s, and that she had met the O.s at their home and liked

them. Mr. Nair attempted to contact K.S., but was not able to reach her because

she did not leave a valid telephone number.

On November 21, 2013, Mr. Nair filed a praecipe with the trial court

detailing the voicemails that he had received from K.S. On November 25th, the

O.s and the GAL renewed their motion to revoke K.S.’s consent, arguing that

K.S.’s consent was based on a mistake of fact and was involuntary, due to her

17

mental illness. Attached to their motion was an affidavit from J.E. attesting that

K.S. was mistaken about the family with whom E.S. had been living, and that K.S.

believed that she had consented to adoption by the family with whom E.S. had

been placed since birth.

On December 31, 2013, K.S., through her counsel, filed a motion to revoke

or withdraw her consent to the adoption. The motion stated that K.S. had called

her attorney on December 26th and informed him directly that she wished to

revoke her consent to the adoption. K.S. stated that she had been confused about

E.S.’s living arrangement and believed that E.S. had been living with the W.s when

she consented to their adoption of E.S.17

E. The Adoption Trial

The competing petitions for adoption were consolidated and the adoption

trial before Magistrate Judge Errol Arthur began on November 21, 2013, and

concluded on April 24, 2015. Soon after trial began, on November 26, 2013, the

trial court increased E.S.’s visitation with the W.s to overnight visitation every

17

The trial court concluded that it could not assess the reliability of these

statements without K.S.’s testimony, and thus, placed little to no weight on them.

18

other week from Sunday to Wednesday and every other weekend from Thursday to

Monday. This visitation arrangement resulted in E.S. spending half of her time

with the O.s and half of her time with the W.s.

1. Testimony Regarding K.S.’s Mental Health and Her Capacity

to Consent

Ms. Ambroso testified that, on September 27, 2013, the first day of the Fair

Hearing, K.S. informed her that she was not on medication because she was

pregnant.18 She also testified that K.S.’s friend, Mr. Coefed, had told her that, to

his knowledge, K.S. was not on medication or receiving mental health care around

the time she came to D.C. on September 27th.

Ms. Ambroso further testified that K.S.’s demeanor on September 27th

appeared normal and that she did not notice any memory loss. However, Ms.

Ambroso also testified that she was “not sure to what extent she [K.S.] was

confused about why people were in the building” for the Fair Hearing.

18

The interim report that Ms. Ambroso filed with the trial court also stated

that K.S. had said that she was not receiving psychiatric care or on psychiatric

medicine.

19

Shadowing social worker Mr. Schaefer also testified that K.S. was lucid and

“oriented to person, place, and time.” However, Mr. Schaefer stated that he did not

hear K.S. state that she wanted to consent to the W. family or make any statement

regarding E.S.’s placement. He further stated that he was relying on the signed

consent filed with the court.

On November 22, 2013, K.S.’s sister, J.E., testified extensively about her

sister’s past and present mental health issues. J.E. also testified that K.S. would

wander about in New York, D.C., and Virginia, mentally ill and frequently

homeless and that she would go long periods of time without any ability to contact

her sister. J.E. testified that she had taken care of K.S. for most of her life and had

been the point of contact for K.S.’s hospitalizations when K.S. was in her twenties

and thirties.

J.E. further stated that K.S. exhibited signs of mental illness during their

meeting with the O.s in November. She stated that she had to purchase a headband

for K.S. because her ears were bleeding, that K.S. appeared “delusional,” and made

unusual statements to her. J.E. also testified that K.S. had left a voicemail message

for her, indicating that she was confused about which family she had consented to

adopting E.S. K.S. stated in the voicemail message: “I had signed something, but

20

I had told him on the thing, I had thought that the whole time, since [E.S.] was, you

know taken from me, I thought that she was with the other family . . . Well, no, the

whole time she was with the [O.] family . . . .”

Dr. Cummings, K.S.’s treating psychiatrist during her hospitalization at

Georgetown, also testified at the adoption trial.19 Dr. Cummings testified that K.S.

was diagnosed with bipolar disorder and was determined to have experienced a

manic episode. K.S. was also determined to have a right frontal brain injury and

minimal capacity. Her symptoms included agitation, self-injuring to her ears,

impaired decision-making, unstable mood, and disorganized thoughts. Dr.

Cummings explained that although K.S. had six weeks of extensive treatment and

was on medication at the time of her discharge, she could not make complex

decisions, had the capacity only to understand that she had an upcoming court

hearing regarding her daughter, and would need constant medication to remain

psychiatrically stable. He further explained that K.S. had been inconsistent in her

decision-making with regard to whether or not she wanted to keep E.S.

19

Dr. Cummings was qualified as an expert in the field of psychiatry.

21

Dr. Cummings testified that he was concerned about K.S.’s mental capacity

to give a knowing and informed consent to E.S.’s adoption without first having a

mental capacity evaluation within hours before the consent. He also testified that

he would be highly concerned about K.S.’s capacity to consent if (1) she was not

receiving psychiatric treatment; (2) she was not taking her medication; (3) she was

displaying signs of confusion; and (4) information relevant to her decision had to

be simplified for her to understand. Further, he testified that K.S.’s inability to

retain information would suggest that she was actively psychotic and not able to

make important decisions. After reviewing the facts in this case, including the

voicemail K.S. left for her sister, he concluded that K.S. likely did not have the

mental capacity to give consent on September 27, 2013.

2. Testimony Regarding E.S.’s Relationship with the W.s

At trial, S.E.W. testified that the W. family loved E.S., that E.S. was doing

well during her visits with them, and that E.S had a strong relationship with

everyone in the W. family, including their four sons. She further testified that on

her own, E.S. called S.E.W. “mama” or “mom,” and called B.S.W. “dada” or

“'Bry-Bry.” S.E.W. also testified that the W.s have a large extended family in the

area and that the family comes together frequently, and was able to develop a

22

relationship with E.S. The W.s had designated S.E.W.’s sister and brother-in-law,

whom E.S. saw every week during her visits with the W.s, as guardians in the

event that anything happened to the W.s. In addition, through E.S.’s visits with the

W.s, E.S. had also developed a positive relationship with her biological

grandmother, D.W.; S.E.W. testified that she intended to continue this relationship

as well as E.S.’s relationship with other relatives, if she were allowed to adopt E.S.

Social worker Nicole Morel, who had been assigned to monitor E.S. with the

W.s in Virginia, also testified that she visited the W.s’ home quarterly, from

August 2013 to May 2014, and that once E.S. was moved to the W.s’ home, she

visited twice a month. Ms. Morel testified that E.S. was happy and comfortable in

the W.s’ home, that E.S. developed a bond with the W.s and their sons, and that the

W.s appeared loving and caring. Ms. Morel also testified that E.S. had trouble

transitioning after visits with the W.s, and that E.S. would cry when she had to

leave S.E.W. Overall, Ms. Morel testified that she did not have any concerns about

the W.s’ ability to parent E.S. and testified that she supported their adoption

petition.

23

In addition, three CFSA social workers, Ms. Ambroso, Mr. Shaeffer, and

Ms. Sanders all testified that the W.s were good parents, that E.S. had formed a

strong bond with S.E.W., and that the W. family met all of E.S.’s needs.

3. Testimony Regarding E.S.’s Relationship with the O.s

The O.s testified that E.S. had adjusted to their home and that they had

developed child-parent relationships with E.S. CFSA social workers Mr. Shaeffer

and Ms. Sanders both testified that the O.s were good parents and that E.S. was

doing well in their care. Ms. Sanders described a few problems that the agency

experienced initially in trying to get the O.s to cooperate with E.S.’s overnight

visitation with the W.s and with their decision not to have direct contact with the

W.s in order to make E.S.’s transitions easier.

Ekeoma Eluchie, a social worker with Children’s Choice, testified that she

had conducted and approved the first home study for the O.s, and that she did not

have any concerns about the care the O.s provided for E.S. She also testified that

she was aware of P.O.’s prior life experiences—such as an early childhood

molestation incident, her previous divorce and her infertility, but that after

24

discussing those experiences with P.O., she was satisfied that those experiences

would not impact P.O.’s parenting.

4. The O.s’ Expert Testimony

The O.s presented testimony from two psychologists, Dr. Seth King and Dr.

Michael Gilliard, regarding E.S.’s relationship with the O.s. Dr. Gilliard testified

that he evaluated E.S.’s interactions with the O.s at their home and concluded that

E.S. had formed a primary attachment to P.O. and a secondary attachment to J.O.

Although Dr. Gilliard had not evaluated E.S. with the W.s, he also opined that E.S.

had formed a bond with the W.s, since E.S. continued to thrive, despite the joint

custodial arrangement between the O.s and the W.s. Still, Dr. Gilliard

recommended that E.S. remain with the O.s since she had formed her first primary

attachment with them and had sibling-type relationships with the O.s’ sons.

Dr. Seth King, who also conducted an interactive assessment of E.S. and the

O.s when E.S. was ten months old, concluded that the O.s were E.S.’s primary

attachment figures and opined that E.S. should be placed permanently with the O.s.

Although Dr. King did not interview the W.s or evaluate their interactions with

E.S., Dr. King reviewed the home study of the W.s, and testified that if E.S. is

25

moved to a home where multiple family members have attention deficit

hyperactivity disorder (“ADHD”), the environment could be chaotic. He further

testified that having a child with anxiety and learning disabilities is demanding for

the parents. Dr. King testified that remaining with the O.s would be the safest

option for E.S. as it would present the least amount of risk for her development,

mental health, and stability.

E.S.’s pediatrician, Dr. Marilyn Corder, also testified, amongst other things,

that E.S appeared anxious during one of her pediatric appointments, that she

exhibited some aggressive and frustrated behaviors, and appeared to be more

clingy—the O.s alleged that these symptoms began after E.S. began her overnight

visits with the W.s. Dr. Corder later diagnosed E.S. as suffering from separation

anxiety; she opined that moving between homes prolonged E.S.’s separation

anxiety and was detrimental to E.S.’s growth and development. Dr. Corder

recommended that the O.s, who had established a bond with E.S., should remain

E.S.’s primary caretakers, and that visits with the W.s should be limited to daytime

visits.

26

5. The Trial Court’s Ruling and Its Affirmance on Review

On April 24, 2015, the trial court issued oral rulings on the joint motion of

the O.s and GAL to exclude K.S.’s consent, K.S.’s motion to revoke her consent,

and the competing adoption petitions. The trial court also issued a written order on

February 27, 2016. The trial court found, by clear and convincing evidence, that

K.S. was not fit to parent E.S. The trial court also denied the motions to revoke

K.S.’s consent, concluding that K.S. had expressed unequivocal consent, under

oath, to the adoption of E.S. by the W.s, and that she was mentally competent to

consent to this adoption on September 27, 2013. In reaching this conclusion, the

trial court credited Ms. Ambroso’s testimony that she believed K.S. was competent

to consent.20 The trial court also found Dr. Cummings’s testimony to be credible.

Notably, the trial court stated:

The Court also agrees with Dr. Cummings’s conclusion that any

assessment on whether K.S. had the capacity to make decisions, enter

contracts, and [in this matter] consent to an adoption would have to

involve an assessment of whether she was receiving mental treatment.

However, in this matter, no credible evidence was presented to

suggest that K.S. was not receiving mental health treatment at the time

she executed the consent or deemed mentally committed.

20

Ms. Ambroso, although aware of K.S.’s complicated psychiatric history

and her difficulties in retaining information, stated that she looked at K.S.’s

demeanor and presentation in assessing her capacity to understand the situation and

give an informed consent.

27

The trial court also concluded that the O.s did not present clear and

convincing evidence that adoption by the W.s was not in E.S.’s best interest, so as

to overcome the weighty consideration that the trial court gave to K.S.’s choice of

the W.s as E.S.’s caregivers. After consideration of the three relevant termination

of parental rights (“TPR”) factors under D.C. Code § 16-2353, the trial court found

that the W.s were fit and able to provide a home for E.S., and that adoption by the

W.s was in E.S.’s best interest. Accordingly, the trial court dismissed the O.s’

petition, granted the W.s’ petition, and ordered that E.S. be placed with the W.s.

On March 11, 2016, the trial court issued a final decree of adoption to the W.s.

The O.s and the GAL filed motions for review of Magistrate Judge Arthur’s

decision, and on August 26, 2016, the reviewing court (Associate Judge Puig-

Lugo) affirmed. Relevant to this appeal, the court concluded that K.S. had the

mental capacity to consent to E.S.’s adoption, that her consent was not based on a

material mistake of fact, and that the magistrate judge was required as a matter of

law to invoke the weighty consideration doctrine. Judge Puig-Lugo found no error

in the magistrate judge’s conclusion that the evidence did not meet the clear and

convincing standard to support a waiver of K.S.’s parental consent to adoption by

the W.s. Judge Puig-Lugo also found no error in the magistrate judge’s conclusion

that the W.s were fit to adopt E.S. and that the adoption was in E.S.’s best interest.

28

Finally, Judge Puig-Lugo found no abuse of discretion in the magistrate judge’s

consideration of the expert and lay witness testimony, and the credibility

determinations he made about these witnesses. This appeal followed.

II. Discussion

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

discretion[.]” In re T.J., supra, 666 A.2d at 10. In our review, we must “determine

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

alternatives, based on all the relevant factors and no improper factor.” Id. (citation

and internal quotation marks omitted). “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.” Id. (citations and internal quotation marks omitted).

Fitness Requirement

Given the presumption that a child’s best interests are served by placement

with their natural parents, prior to terminating parental rights, the court must find

that the natural parents are not “fit” to parent their child. In re Ta.L., 149 A.3d

29

1060, 1083 (D.C. 2016) (en banc). “Fitness refers to the parent’s intention and

ability over time to provide for a child’s wellbeing and meet the child’s needs[,]”

with the “basic inquiry” focusing on “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. at 1082. (citations and internal quotation marks omitted). Fitness

must be determined in reference to the specific child at issue, taking account of any

special needs or extenuating circumstances— “[a]n individual may be a fit parent

for one child but not for another.” In re L.W., 613 A.2d 350, 360 n.24 (D.C. 1992).

Once the court is satisfied by clear and convincing evidence that a parent is not fit

to parent their child, this presumption in favor of the natural parents “gives way to

what is in the child’s best interest.” In re Ta.L., supra, 149 A.3d at 1083; In re

C.A.B., 4 A.3d 890, 899 (D.C. 2010) (“[I]t is the child’s best interest, not the

fundamental right to parent, that is paramount in adoption cases.”).

Weighty Consideration and Competence

Pursuant to D.C. Code § 16-304 (a)-(b), generally, the consent of the

biological parents is required in order for the trial court to grant a petition to adopt

a child. Even though a parent may not be fit to parent his or her child, he or she

may still be entitled to deference in designating a preferred caregiver “so that their

30

children can be raised by someone with whom they have close familial ties.” In re

Ta.L., supra, 149 A.3d at 1084. When a parent unequivocally consents to adoption

of his or her child by a preferred custodian, “unless it is established that the parent

is not competent to make such a decision . . . a parent’s choice of a fit custodian for

the child must be given weighty consideration . . . .” In re T.J., supra, 666 A.2d at

11 (emphasis added).

We have never explicitly stated the standard for competency as it applies to

a biological parent’s choice of a preferred caregiver. The trial court cited to Butler

v. Harrison, a case involving an individual’s competency to execute a property

deed, for the proposition that an individual is competent to enter into an agreement

if the person “possesses sufficient mind to understand, in a reasonable manner, the

nature, extent, character, and effect of the particular transaction in which [he or]

she is engaged.” 578 A.2d 1098, 1100 (D.C. 1990). In this case, however, we

conclude that an individual’s designation of a preferred caregiver for their child

requires a more nuanced competency evaluation than one would apply to the

determination of whether an individual could enter a legal contract given the

import of the parent’s designation on the best interest of the child. One of our

seminal cases on the weighty consideration doctrine, In re T.J., refers to the need

for a parent to be “competent to make such a decision,” indicating that competency

31

must be considered within the framework of an adoption proceeding. 666 A.2d at

11 (emphasis added); see also Hernandez v. Banks, 65 A.3d 59, 71 (D.C. 2013) (en

banc) (stating that a person’s ability to contract depends “on the nature of the

particular transaction at issue”).

We also recognize that competence is a lower standard than fitness; an

individual may be competent to designate a preferred caregiver yet unfit to parent

their child. Parents have “the right to raise the[ir] child if physically or mentally

able to do so, or, if not, the right to determine who should raise the child.” In re

T.J., supra, 666 A.2d at 15 (emphasis added).

We look to prior cases to inform our definition of competency within the

context of an individual’s capacity to consent in an adoption proceeding. In re T.J.

suggests that competency as it relates to a biological parent’s choice of preferred

caregiver, should be determined by evaluating both (1) whether the parent can

determine what is in the child’s best interest and select a caregiver accordingly,

and (2) whether the parent is capable of planning for their child’s future. In re T.J.,

supra, 666 A.2d at 10, 16. The first part of this standard comes from language in

which we equated the parent’s exercise of their right to designate a caregiver with

the parent’s “determination of what is in their child’s best interest.” Id. at 16; see

32

also In re J.D.W., 711 A.2d 826, 833 (D.C. 1998) (holding that a mother’s consent

was not entitled to weighty consideration when the mother was “addicted to drugs,

refusing treatment, depressed, and without a stable home” and “gave little or no

thought to the best interests of her son”). The second part of this competency

standard is derived from language equating competence with an ability to plan for

a child’s future. We noted that the trial record for In re T.J. contained considerable

undisputed evidence that the biological mother was not “mentally incompetent to

plan for her child’s future” and “always ensured that someone would provide for

the child’s needs when she believed she was unable to do so herself.” In re T.J.,

supra, 666 A.2d at 10, 14. We recognized that the biological mother’s actions

demonstrated forethought to ensure her child was properly cared for, that “she

ha[d] not been adjudicated as a mother who failed, voluntarily, to provide proper

parental care,” and that she was capable “of making decisions about her son’s

future.” Id. at 10.

We note that the question of competency is a legal determination. See

United States v. Makris, 535 F.2d 899, 908 (5th Cir. 1976) (“[T]he determination

of competency is a legal conclusion; even if the experts’ medical conclusions of

impaired ability are credited, the judge must still independently decide if the

particular defendant was legally capable of reasonable consultation with his

33

attorney and able to rationally and factually comprehend the proceedings.”). In

examining the trial court record at issue in this case, we conclude that the trial

court erred in its legal determination that K.S. was competent to consent to a

preferred caregiver.

A. K.S. could not make a determination about what was in her child’s

best interest, and was not competent to consent to a preferred

caregiver.

K.S. could not make a determination about what was in her child’s best

interest as she was unable to retain relevant information that would factor into an

informed decision. Dr. Cummings testified extensively about the many psychiatric

issues that K.S. faced, including a permanent traumatic brain injury, depression,

mood regulation issues, attention deficient disorder, substance abuse, mania and

psychosis, and self-injurious behavior. Although Dr. Cummings was not treating

K.S. on September 27, 2013, when she consented to the W.s’ adoption of E.S., he

treated K.S. extensively for a six-week period and concluded that K.S. likely did

not have the capacity to consent. The medical opinion that K.S. likely lacked the

capacity to consent was also supported by the confusion K.S. exhibited in her

limited interactions with Ms. Ambroso, K.S.’s subsequent statements to her sister,

34

J.E., and K.S.’s representation to her attorney, Mr. Nair, that she was confused as

to whom she had consented to adopt E.S.

The trial court credited the social worker, Ms. Ambroso’s, testimony that

K.S. did not exhibit any mental health symptoms that would lead to questions as to

K.S.’s ability to give an informed consent, even though Ms. Ambroso’s testimony

also established that K.S., an individual with a long history of psychiatric issues,

could not retain critical information over the course of a few hours. On September

27, 2013, the day of the Fair Hearing, K.S. expressed confusion both in the

morning and afternoon regarding E.S.’s placement. Ms. Ambroso also had to

explain in a simplified manner E.S.’s living arrangements because she “wanted

[K.S.] to understand it to the best of her ability” thus suggesting Ms. Ambroso had

reservations about K.S.’s capacity. K.S.’s inability to retain simple information

over a short timespan or understand a scheduling arrangement is a strong indicator

that she does not have the capacity to understand the nature, extent, and character

of placing her child with one adoptive family over another. Further, Ms. Ambroso

testified that she was not sure to what extent K.S. understood the purpose of the

Fair Hearing, and acknowledged that K.S. was subject to a high level of stress.

K.S.’s subsequent statements to her sister, J.E., and her representation to her

attorney, Mr. Nair, that she was confused as to whom she had consented to adopt

35

E.S. provides further support for the conclusion that K.S. easily conflated relevant

information and therefore, lacked the capacity to make a determination about what

was in her child’s best interest. K.S. told Mr. Nair that she believed E.S. “was

staying with B.S.W. and S.E.W. when she consented” to the adoption, thus

demonstrating the same confusion she repeatedly expressed to Ms. Ambroso on

September 27, 2013. Given her repeated confusion, K.S.’s exercise of her right to

designate a caregiver did not reflect a determination of what was in her child’s best

interest. In addition, even if we disregard inconsistencies in Ms. Ambroso’s

testimony and accept her testimony that K.S. consented to the W.s because she

liked their personalities, such reasoning would not reflect an understanding of the

consequences of placing E.S. with one adoptive family over another and therefore

making a determination in the best interest of her child E.S.

Additionally, K.S. lacked sufficient information to make an informed

decision about what was in E.S.’s best interest. Consent must be voluntary and

made with a full understanding of the consequences of the decision. See J.M.A.L.

v. Lutheran Social Servs., Inc., 418 A.2d 133, 136 (D.C. 1980). K.S. had very

minimal interaction with both families. The trial court recognized that “[s]ince the

inception of the neglect case, K.S. had little to no contact with E.S, E.S.’s social

workers, the O.s or the W.s.” On the day of the Fair Hearing, K.S. was also

36

limited to fifteen minutes with each family and was not provided with any of the

social worker’s assessments or home studies, nor did she have the opportunity to

meet with Mr. W.21 This was also K.S.’s first meeting with the O.s, and she had no

opportunity to observe them engage with E.S. Without all the relevant information

about these two families, K.S. could not make a determination as to their fitness to

provide adequate care for E.S. As such, any designation that K.S. made did not

reflect an informed analysis of E.S.’s best interest.

K.S. also lacked the ability to plan for her child’s future. The trial court’s

neglect finding noted that K.S. had little to no contact with E.S. since her

discharge, and that K.S had not made any efforts to inquire about E.S.’s well-

being, or provide any information about possible placement resources for E.S. The

trial court noted that K.S. had not made any “efforts to have someone else care” for

E.S. during the time she was hospitalized. Further, the record demonstrates that

K.S.’s attendance at the Fair Hearing was only prompted by CFSA’s outreach—

K.S. did not make an independent effort to reach out to the social workers in her

case, and her attendance at the Fair Hearing was only procured after her friend, Mr.

Coefed, had purchased her a bus ticket and brought her down himself. K.S.’s

21

K.S.’s attorney stated that he did not inform himself or K.S. about the

contents of the W.s’ homestudy because he believed this information was hearsay.

37

participation in this matter was not a result of independent forethought, and her

behavior did not reflect initiative on behalf of E.S.

We note that this case is easily distinguishable from In re T.J., where the

child lived with the mother until he was nineteen months old, at which time the

mother requested a placement for her son because she was concerned that her

mental health issues could prevent her from providing appropriate care. In re T.J.,

supra, 666 A.2d at 5-6. Although the trial court adjudicated the son neglected

because of his mother’s mental illness, the trial court specifically rejected a neglect

finding that the son was without the “proper care or control, subsistence, education

. . . or other care or control necessary for his physical, mental, or emotional

health.” Id. at 4. The mother also visited her son regularly, and designated a

strong and loving family member who had significant experience raising her own

child, as the preferred custodian for her son. Id. at 6, 10. Despite the mother’s

mental condition, we recognized that the mother “ha[d] the capacity to designate a

suitable and willing custodian and ha[d] done so.” Id. at 11.

In this case, the trial court adjudicated E.S. neglected because of K.S.’s

mental illness and because E.S. was “without proper parental care or control.”

K.S. did not make any attempts to secure appropriate care for E.S. or communicate

38

with the social workers involved in her case, other than to cancel visits with E.S.

She did not demonstrate independent efforts to be involved in E.S.’s life, and did

not have significant contact with either of the potential adoptive families. Here,

there was also ample evidence that K.S., who repeatedly expressed confusion

about E.S.’s placement and had difficulty retaining information, was not competent

to designate a future caregiver.

B. The trial court’s legal conclusion that K.S. was competent does not

comport with the factual record.

We note that the trial court’s legal conclusion that K.S. was competent does

not flow rationally from the facts. The trial court credited Dr. Cummings’s expert

testimony that K.S. “would need constant medication to remain psychiatrically

stable” and that “any assessment on whether K.S. had the capacity to make

decisions, enter contracts, and consent to an adoption would have to involve an

assessment of whether she was receiving mental treatment.” The trial court then

concluded that “no credible evidence was presented to suggest that K.S. was not

receiving mental health treatment at the time she executed the consent or deemed

mentally committed.” The trial court further stated that “Dr. Cummings did not

treat, nor was [he] aware of, K.S.’s mental health treatment in September 2013

[when she executed her consent].” The trial court’s conclusion that K.S. was

39

receiving mental health treatment at the time she executed her consent is not

substantiated by the record. There was evidence to the contrary that K.S. was not

receiving mental health treatment at the time she executed the consent for the W.s

to adopt E.S. Ms. Ambroso testified that K.S. had informed her on September 27,

2013, that she was not on medication because she was pregnant. Ms. Ambroso

further testified that K.S.’s friend, Mr. Coefed, had also told her that K.S. was not

on medication nor was she receiving mental health care around the time she came

to D.C. on September 27th. As an assessment of K.S.’s capacity was predicated on

her mental health treatment, the conclusion that could reasonably be drawn from

the evidence was that K.S. did not have the capacity and was not competent to

designate a preferred caregiver.22

In its February 29, 2016 order, the trial court also wrote that “[t]he words of

the consent speak for themselves,” and that “the various statements attributed to

K.S. as they relate to who she believed she consented to does not outweigh her

validly executed consent.” This conclusion is problematic in light of Ms.

22

The trial court also stated that Dr. Cummings “testified that at the time of

her discharge K.S. had the capacity to make her own legal and medical decisions.”

This was a misrepresentation of Dr. Cummings’s testimony, as he clearly

explained that K.S. had “minimal capacity” at discharge and that he would always

be concerned about her decision-making with regard to a serious decision.

40

Ambroso’s testimony that she gave K.S. simplified descriptions of the various

court proceedings because “[t]erms like petitions, permanency hearing, fair

hearing, those things wouldn’t mean anything to her.” The actual language of the

executed consent contains the type of legal language that, per Ms. Ambroso’s

testimony, K.S. would not understand, thus providing an impetus for the trial court

to look outside “[t]he words of the consent” to ascertain whether K.S. had the

capacity to execute the consent. See Wheeler v. Howard, 87 S.E.2d 377, 378 (Ga.

1955) (asking that “[i]f the signed written consent is all the law requires, then why

the concern about the reason for giving it?”).

The trial court further concluded that K.S.’s consent to E.S.’s adoption by

the W.s was unequivocal, leaving no doubt. K.S. made statements to her sister, to

the O.s, and to her attorney demonstrating that her consent was based on a

mistaken belief that E.S. had been residing with the W.s since birth. The trial court

declined to give weight to these statements, finding that K.S. would need to appear

in court to testify in person, despite her long psychiatric history and the fact that

she lived in New York.23 Under these circumstances where K.S. was under stress,

23

“The Court cannot credit these statements without any insights as to

under what circumstances the statements were made, and to assess each

(continued . . .)

41

required simplified explanations, and demonstrated repeated confusion, her

consent cannot be deemed unequivocal. See Fulton v. Schneider, 202 S.E.2d 706,

707 (Ga. Ct. App. 1973) (affirming a trial court decision denying an adoption,

upon finding that the biological mother had signed the consent at a time when she

was subject to great mental and physical stress, and that she had not acted “with

the settled purpose and volition necessary to constitute unequivocal consent”).

Finally, the trial court stated that “[w]hile earlier Court of Appeals’

decisions appeared to limit the circumstances under which the trial court must give

the parental preference weighty consideration, exempting cases in which “it is

established that the parent is not competent to make such a decision . . . subsequent

holdings have rejected such approach.” However, In re Ta.L. states the rule that if

a biological parent is not competent to make a decision about a caregiver for their

child, their decision is not entitled to weighty consideration. In re Ta.L., supra,

149 A.3d at 1084 n.34. In re Ta.L. clearly contemplates this need to consider

K.S.’s competency.

(. . . continued)

statement’s reliability. The Court firmly believes that the only person to express

her opinion or put forth the position or explain her rationale is K.S.”

42

C. K.S. was not competent to designate a preferred caregiver, therefore

the weighty consideration doctrine should not have applied.

K.S. was not competent to designate a preferred caregiver, and therefore her

executed consent in favor of the W.s was not entitled to weighty consideration. In

accepting K.S.’s consent, the trial court ultimately applied an incorrect legal

standard, requiring the O.s to prove by clear and convincing evidence that

placement of E.S. with the W.s was clearly contrary to her best interest. Rather,

since K.S. was not competent to designate a preferred caregiver, the test or

standard was which placement would have been in E.S.’s best interest, by a

preponderance of the evidence.

Finally, we note that CFSA chose to support the W.s’ adoption petition prior

to any input from the biological mother. K.S. did not know the W.s, and the

maternal grandmother’s connection to the W.s was tenuous at best. The weighty

consideration doctrine only applies to the wishes of the biological parents.

Although we recognize that CFSA wanted to include the maternal grandmother in

the placement process, their rationale for supporting the W.s from the infancy of

this case is not rooted in the law.

43

III. Conclusion

In sum, in this case the mother’s choice of preferred caregiver was not

entitled to weighty consideration because the mother was not competent to make

this designation. A parent’s designation of a preferred caregiver for their child

requires a determination as to whether the parent is competent to make such a

decision; competence within the context of an adoption proceeding requires an

evaluation of both (1) whether the parent can determine what is in the child’s best

interest and select a caregiver accordingly, and (2) whether the parent is capable of

planning for their child’s future. In re T.J., supra, 666 A.2d at 10, 16. In this case,

there was considerable evidence that K.S. could do neither.

Accordingly, we vacate the trial court’s February 29, 2016 order dismissing

the O.s’ petition and granting the W.s’ petition to adopt E.S. If the O.s still wish to

adopt E.S., both the O.s and the W.s shall file updated adoption petitions with the

trial court for consideration on an expedited basis. The trial court shall reevaluate

the O.s’ and the W.s’ renewed adoption petitions based solely on the best interest

of the minor child under the TPR factors under D.C. Code § 16-2353, while also

considering any changes in the circumstances since E.S.’s placement with the

44

W.s.24 If the O.s no longer wish to pursue E.S.’s adoption, the trial court shall

enter new findings of fact and conclusions of law that consider only the W.s’

petition.

So ordered.

GLICKMAN, Associate Judge, concurring in the judgment: The sad facts of

this case illustrate the fundamental defects of our unique, judicially-created

“weighty consideration” doctrine. I and other judges previously have highlighted

the need to reconsider this doctrine, see, e.g., In re Ta.L., 149 A.3d 1060, 1118-20

(D.C. 2016) (en banc) (Glickman, J., concurring and dissenting), and the en banc

court soon may do so in In re J.B.S. & V.S.S., Nos. 16-FS-1244 & 16-FS-1245, en

banc hearing granted (D.C. Dec. 22, 2016). The “weighty consideration” doctrine

requires the trial judge in a contested adoption proceeding to defer to an unfit

natural parent’s choice of adoption petitioner, unless the parent is incompetent, as

long as her choice is not shown to be “clearly contrary to the child’s best interest.”

24

In considering any new evidence since E.S.’s placement with the W.’s for

the past two years, the trial court, in the exercise of its discretion, may consider any

relevant information that addresses the best interest of the child, including

attachment studies, home studies, change in circumstances, among other relevant

considerations. In the exercise of its discretion, we ask the trial court to explain its

decision-making when considering any new evidence.

45

In re K.D., 26 A.3d 772, 778 (D.C. 2011) (emphasis added, quotation marks

omitted). The judge must accord such deference “no matter how ill-informed,

unconcerned, or prejudiced the parent is about the child’s needs and the adoption

petitioners’ capabilities.” Ta.L., 149 A.3d at 1119. This is incompatible with our

adoption statute, which requires the judge to be satisfied that “the adoption will be

for the best interests of the prospective adoptee.” D.C. Code § 16-309 (b) (2012

Repl.) (emphasis added). In my view, the “weighty consideration” doctrine lacks

any sound justification and is too inherently flawed to be salvaged by burdening

contested adoption proceedings with threshold disputes over the “competency” of

the natural parents; competent or not, their wishes should be given only the weight

the judge finds they actually deserve. Accordingly, although I do not disagree with

my colleagues’ ultimate determination that the natural mother in this case was not

competent to decide her child’s future and not entitled to weighty consideration, I

concur only in the judgment.