IN RE PETITION OF P.D.J.K., J.W., APPELLANT.
No. 17-FS-1046
DISTRICT OF COLUMBIA COURT OF APPEALS
April 26, 2018
Aрpeal from the Superior Court of the District of Columbia (ADA-117-16) (Hon. Carol Ann Dalton, Reviewing Judge) (Hon. Rahkel Bouchet, Magistrate Judge)
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.
(Submitted April 3, 2018 Decided April 26, 2018)
Adriane R. Marblestein-Deare was on the brief for appellant J.W.
Ronald A. Colbert was on the brief for petitioner/appellee P.D.J.K.
Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Stacy Anderson, Acting Deputy Solicitor General, and Pamela Soncini, Assistant Attorney General, were on the brief for appellee the District of Columbia.
Karen A. Bower filed a statement in lieu of brief for appellee J.J.
Stacey Boehm-Russell, guardian ad litem, filed a statement in lieu of brief for respondent/appellee S.W.
Before GLICKMAN and FISHER, Associate Judges, and WASHINGTON, Senior Judge.
I. Background
S.W. was born on February 4, 2014. Appellant J.W. is her biological mother and J.J is her biological father. When S.W. was nearly eight months old, the District of Columbia Child and Family Services Agency (“CFSA“) removed her from J.W.s care “after J.W. was found incoherent and under the influence of drugs.” On September 30, 2014, CFSA placed S.W. in the care of her paternal grandmother, P.D.J.K. A few weeks later the court adjudicated S.W. a neglected child and set an initial permanency goal of reunification with J.W. However, on September 29, 2015, the court changed the permanency goal to adoption due to J.W.s failure to address her substance abuse, achieve emotional stability, and improve her caretaking
Although the father consented to the adoption of S.W. by P.D.J.K. (his mother) and the guardian ad litem supported the adoption petition, J.W. did not. In March 2017, after this courts decision in In re Ta.L., 149 A.3d 1060 (D.C. 2016) (en banc), J.W. requested an evidentiary hearing on whether the permanency goal should be changed. A hearing was held before Magistrate Judge Rahkel Bouchet on May 15, 2017, the date previously scheduled for the adoption trial to begin. The court heard testimony from three CFSA social workers who had provided services to the family in the year preceding the goal change. J.W.s counsel did not call any witnesses and J.W. did not attend the hearing. At the conclusion of the hearing Judge Bouchet announced that she would “maintain the goal of adoption” and she issued a written Order on May 30, 2017. J.W. did not appeal that decision.
Judge Bouchet then held a trial on P.D.J.K.s adoption petition on May 19, 2017, one of the previously schedulеd dates. P.D.J.K. and S.W.s current CFSA social worker each testified during trial, but J.W. was not present and her counsel did not call any witnesses. After considering “the entire record in this matter” in addition to the testimony presented during the adoption trial, Judge Bouchet found by “clear and convincing evidence” that J.W. was an unfit parent, unable “to meet the daily physical, and mental, and emotional needs of herself, let alone the
requirements to meet the needs of the minor child.” Judge Bouchet also found that it was in the best interests of S.W. “to be adopted by the pеtitioner, who she ha[d] resided with for the past two years, and who ha[d] been maintaining and meeting her needs.” The court issued a final decree of adoption on July 13, 2017, and J.W. filed a motion for review. Associate Judge Carol Ann Dalton reviewed the record and found that J.W. had not bеen denied “an impartial and fundamentally fair proceeding” and that Judge Bouchet did not “err or abuse her discretion by granting the adoption petition.”
II. Analysis
“We review a trial courts determination in a proceeding to terminate parental rights (TPR) and waive a natural parents consent to adoption for abuse of discretion.” In re S.L.G., 110 A.3d 1275, 1284 (D.C. 2015). We treat “the magistrate judges factual findings as the findings of the trial judge and review for abuse of discretion or a clear lack of evidentiary support. As to alleged errors of law, however, we review the record de novo, without deference to the judges below.” In re C.L.O., 41 A.3d 502, 510 (D.C. 2012) (internal quotation marks omitted).
A. Appellant Received a Fair Trial
J.W. first argues that the adoption trial “lacked the appearance of impartiality and fundamental fairness” because Judge Bouchet ruled against her at the end of the Ta.L. hearing and then presided over the adoption trial four days later. Howevеr, J.W. did not object or ask Judge Bouchet to recuse herself either before or during the adoption trial. Although a “judge may have personal experience with particular parties who have appeared before [her] in previous cases, . . . such prior knowledge does not, by itself, generally raise questions about the fairness of a judge.” Mayers v. Mayers, 908 A.2d 1182, 1194 (D.C. 2006) (citation omitted); see also Liteky v. United States, 510 U.S. 540, 551 (1994). To
Assuming for the sake of argument that appellant has not forfeited this claim, the fact that Judge Bouchet presided over the adoption trial after ruling that the permanency goal should be changed to adoption is, by itself, not enough to establish a lack of impartiality or fundamental fairness. Appellant does not point
to a single fact that demonstrates Judge Bouchet was biased against her. Moreover, the District of Columbia Family Court Act of 2001 recognizes the importance of continuity and actuаlly requires that, to the greatest extent practicable, cases involving members of the same family “be assigned to the same judge or magistrate judge.”
J.W also claims that the adoption trial was fundamentally unfair because Judge Bouchet “transplanted” testimony from the Ta.L. hearing and used it to support her ruling in the adoption trial. Because the two proceedings require different standards of proof, J.W. argues that Judge Bouchet should not have relied so heavily upon the evidence from the Ta.L. hearing. However, when terminating parental rights, the trial court may consider relevant facts found in a prior related proceeding where the interested parent was a party and represented by counsel, providеd that the decision to terminate parental rights is ultimately based on clear and convincing evidence. In re J.M.C., 741 A.2d 418, 424 (D.C. 1999) (allowing trial court to consider relevant facts found in prior neglect proceeding when terminating parental rights); see also S.S. v. D.M., 597 A.2d 870, 882 n.32 (D.C. 1991).
Although it is generally proper for a court to take notice of factual findings made in a prior related proceeding, Judge Bouchet merely considered testimony from the Ta.L. hearing as evidence when making her decision on P.D.J.K.s adoption petition. Judge Bouchet recognized that the twо proceedings were separate and clarified that she was not “using the [Ta.L.] testimony for purposes of leading in” to the adoption trial; however, “for purposes of judicial economy,” she was not going to require the parties to call the “same witnesses” to give “the same testimony” four days later. Judge Bouchet did not transpose any factual findings from the Ta.L. hearing but properly considered the evidence from the Ta.L. hearing in which J.W. was a party and represented by the same counsel. She also explicitly noted both orally and in her written Order that the standard of proof required to grant P.D.J.K.s adоption petition was “clear and convincing evidence.” Thus, Judge Bouchets use of evidence from the Ta.L. hearing was entirely proper and most certainly was not, as appellant contends, fundamentally unfair.
B. The Magistrate Judge Did Not Abuse Her Discretion
J.W. next argues that the magistrate judge abused her discretiоn by not allowing J.W.s counsel to cross-examine P.D.J.K. about J.J.s incarceration and criminal history. J.W. claims that questions about J.J.s “childhood and the nature
of his upbringing which may have contributed to his apparent disregard for the law” were relevant to P.D.J.K.s fitness as an adoptive parent. “The extent of cross-examination of a witness with respect to an appropriate subject of inquiry
Judge Bouchet considered J.W.s arguments during thе adoption trial and determined that whether or not P.D.J.K.s “adult son” was incarcerated was not “a direct reflection of her parenting” and thus the court was “not going to draw the connection between the adult decisions of [J.J.] and the petitioner.” Although J.W. insists she was not trying to “place blame” on P.D.J.K., she still fails to proffer a good faith basis for believing that J.J.s incarceration as an adult was a reflection on P.D.J.K.s parenting. See id. (a “reasonable factual foundation” for a line of cross-examination “calls for a credible good faith proffer of facts“).
Moreover, the trial court did not completely preclude this line of questioning and gave J.W.s counsel “reasonable latitude” on the issue of P.D.J.K.s fitness as an adoptive parent. See Du Beau v. Smither & Mayton, Inc., 203 F.2d 395, 396 (D.C. Cir. 1953) (holding that in both criminal and civil trials, “it is the essence of а fair trial that reasonable latitude be given the cross-examiner“) (citation omitted); Coles v. United States, 36 A.3d 352, 357 (D.C. 2012) (even in a criminal trial, a defendant is guaranteed an “opportunity for effective cross-examination, not cross examination that is effective in whatever way, and to whatеver extent, the defense may wish“) (internal quotation marks and citation omitted). Judge Bouchet allowed J.W.s counsel to ask whether P.D.J.K.s younger son, who lived with her at the time of the hearing, had ever been involved in the criminal justice system. (The answer reflected well on him and his mother.) Thе magistrate judge also stated that she would allow J.W. to “call [J.J.] and examine him on his choices” if counsel desired. Appellant did not do so. Thus, Judge Bouchet did not abuse her discretion by limiting J.W.s cross-examination of P.D.J.K.
J.W. contends that Judge Bouchet failed to “consider all the cоntributing factors in their totality” before finding her “unfit to parent” S.W. Although there is a strong presumption that a childs best interest is served by placing her with her natural parent, this presumption may be rebutted by clear and convincing evidence
that the parent is unfit. In re S.L.G., 110 A.3d at 1285-86. Fitness turns on “whether the parent is, or within a reasоnable time will be, able to care for the child in a way that does not endanger the childs welfare.” Id. at 1286-87. Judge Bouchet expressly acknowledged that J.W. had visited with S.W. and participated in certain court-appointed services. However, because of J.W.s previous neglect of S.W. and failure to address her own “mental health, substance abuse, and housing issues,” Judge Bouchet found that J.W. was unfit and unable to “meet the needs of the minor child.” She specifically noted that J.W. had “not been able to maintain any sense of stability in the community,” had “been detained on several occasions,” and had “not had the ability to overcome her substance abuse despite participating in services.” Judge Bouchet did not improperly compare J.W. to P.D.J.K. when discussing fitness and clearly incorporated the parеntal presumption into her analysis. Id. at 1288-89. Thus, she did not abuse her discretion in finding J.W. unfit.
parents consent necessarily terminates the parents rights,” the court must weigh the termination of parental rights (“TPR“) factors listed in
Finally, J.W. protests Judge Bouchets decision to grant P.D.J.K.s adoption petition. A court may enter a final decree of adoption when it is satisfied that the factors set оut in
conclude that the magistrate judge did not abuse her discretion by terminating J.W.s parental rights and granting P.D.J.K.s adoption petition.
III. Conclusion
The judgment of the Superior Court is hereby
Affirmed.