This case requires us to interpret the Safe and Stable Homes for Children and Youth Amendment Act of 2007, D.C.Code §§ 16-831.01 to .13, 21-2301 (2012 Repl.), the child custody statute governing transfer of custody to non-parent third parties. Specifically, we consider whether the statutory parental presumption that custody with a parent is in a child’s best interest applies beyond the initial custody transfer decision, to the modification of a third-party custody order.
In May 2006, R.M. (“the aunt”) sought custody of T.P., the daughter of her sister S.M. (“the mother”). After a November 2007 hearing at which the Superior Court (the Honorable Fern Flanagan Saddler) awarded the aunt temporary custody of T.P., the mother filed an emergency motion for a stay. However, at a subsequent December 2007 hearing, the mother, who appeared pro se, retracted the allegations she had made in her emergency motion and agreed that custody of T.P. should be given to the aunt. The mother consented to this arrangement with the understanding that, in a year, when she completed treatment for her acknowledged drug problem, she would get her “baby” back. This understanding was affirmed by the aunt, who repeatedly reassured the mother at the hearing that she would regain custody of T.P.
As the parties discussed the custody arrangement, the Superior Court largely remained silent. Although the court did note that the parties would have to file a motion to modify the custody order, it did not explain what such a proceeding would entail. At no point was there any acknowledgment that the aunt’s complaint
The mother successfully addressed her drug problem, but she did not regain custody of T.P. Several years passed, during which the mother filed multiple motions to modify the 2008 custody order, as she had been directed to do at the 2007 hearing. It is the resolution of the fourth modification motion that concerns us. The mother, newly represented by counsel, asked the Superior Court (the Honorable Alfred S. Irving, Jr.) to incorporate the parental presumption under D.C.Code § 16-831.05 in its custody modification decision under D.C.Code § 16-831.11. In orders issued in December 2012, the Superior Court declined to apply the parental presumption and rejected the mother’s motion for reconsideration. In an order issued in January 2013, the court ruled on the mother’s motion for modification, finding that the mother had made a substantial change in her circumstances, but determining that modification of custody was not in the best interests of T.P.
The mother’s central argument is that the Superior Court erred by not incorporating the parental presumption into its custody modification decision. Although she concedes that the parental presumption under D.C.Code § 16-831.05 ordinarily does not apply when a parent moves to modify a third-party custody order to which the parent initially consented, she argues that such consent must be knowing and intelligent, and that she did not understand at the December 2007 hearing that she was irrevocably relinquishing custody of T.P. to the aunt. Accordingly, the mother asserts that the parental presumption, having never been properly rebutted or waived at the 2007 hearing, was still in force when she filed the subject motion for modification. The aunt disputes the mother’s contention that she did not knowingly consent to an irrevocable transfer of custody and argues that the parental presumption should not apply in this case. Amicus curiae Children’s Law Center argues that the parental presumption is categorically inapplicable whenever the Superior Court
Examining the text of the modification provision, D.C.Code § 16-831.11, and the third party-custody statute as a whole, we determine that a parent’s irrevocable consent to the transfer of custody of her child to a non-parent under D.C.Code § 16-831.05(a) generally waives his or her parental presumption, such that the presumption will not apply in subsequent modification proceedings. As the third-party custody statute reflects, however, this general rule presumes that a parent’s irrevocable consent to a transfer of custody to a third party is given with full knowledge and understanding of what she is consenting to and the consequences of that consent. We conclude that the current appeal presents the exceptional case in which the record does not support the finding that the mother knowingly and intelligently consented to an irrevocable transfer of custody of her child. We therefore reverse the Superior Court’s judgment awarding the aunt sole legal and physical custody of minor T.P., and remand the case for further proceedings consistent with this opinion.
I. Facts and Procedural History
T.P. was born in February 2000 to the mother and J.P. (“the father”), now deceased. In May 2006, the aunt sought custody of T.P. At the time the aunt’s complaint was filed, the mother was housed at the D.C. jail. The father, who determined that he was unable to adequately care for T.P. due to his advancing age and failing health,
In December 2007 the mother, father, and aunt appeared for a status hearing; all were without counsel. The mother then retracted the allegations she had made in her emergency motion for a stay of the temporary order of custody. The mother told the court that she had made arrangements to enter a year-long drug treatment program and that she wished for the aunt to have custody of T.P. until she returned. Instead of simply issuing the order for temporary custody awarded in November, however, the court, sua sponte and without explanation, announced that it would issue an order granting the aunt permanent custody.
The court explained that the order would “say permanent custody, but it does not mean forever.” Rather, the court informed the mother that it meant: “[Anytime you want to change it, you file your motion.” To this the mother responded: “I ain’t going to want to change — I want her to keep ... my daughter ... [ujntil ... I come home and complete that program and show my sister that I don’t have to use [drugs] to live my life.”
The mother’s explicit desire to regain custody of her child prompted no comment from the court other than an affirmation that filing a motion would be “all you have to do.” After this exchange, the court appeared ready to quickly conclude the proceedings, but then realized that it needed to confirm that the father consented to
As the court spoke to the father, the mother repeatedly interjected with comments and questions. First, the mother informed the court that she wanted to return to court to regain custody of T.P. “this month next year before Christmas.” The court explained that she could come back “whenever [she] want[ed] to do it.” When the court asked the father if he consented “to the aunt having sole legal and sole physical custody,” the mother asked: “What [does] that mean, legal custody?” The court told her that “it just means that [the aunt] gets to make decisions about education ... religious affiliation ... [and] medical issues,” but that the aunt and the mother could still confer about these matters. The mother accepted this explanation, but then returned to her questions about regaining custody: “And I still get my daughter back when I ... complete the program? Excuse me, Your Honor, I get my daughter back?” The aunt quickly responded to this question: ‘Yes.” The court then qualified: “It’s not automatic. What I’m trying to tell you is I’m giving her custody. If you want to get your daughter back, file a motion with the court.”
The mother continued to express confusion, however, telling the court: “I don’t understand that.” Instead of getting an explanation from the court, she ended up in a dialogue with her sister:
AUNT: Just like how you came and filed that [emergency] motion, for to stop me?
MOTHER: I could file a motion to get my baby back?
COURT: Correct.
AUNT: Yeah, we’ll do it together, you know?
MOTHER: Okay, let me ask you this in front of the judge.
AUNT: Yes.
MOTHER: When I complete the program, can I have my baby back?
AUNT: Yes, what did I tell you?
MOTHER: Okay.
AUNT: What did I tell you about that?
MOTHER: You told me you want me to go get myself together because you don’t want me to die like our brothers died over drugs and you don’t want [T.P.] to go into a home.
AUNT: Okay and what did I tell you, I’m [T.P.]’s what?
MOTHER: Aunt.
AUNT: And you are her what?
MOTHER: Mother.
AUNT: And — and—and who going to run — who needs to raise her?
MOTHER: Her mother.
AUNT: Right.
MOTHER: Me.
AUNT: Yes, yes.
The mother and the aunt concluded their conversation with the aunt reassuring the mother that she would bring T.P. to visit. The court, which had been silent during this exchange, then changed the subject, asking the father how to spell his surname and to confirm his date of birth and address.
The hearing concluded shortly thereafter. The aunt and the father thanked the court, and the mother told the court: “I’ll see you next year.” The court responded: “[T]here’s no court date.” As the court began to explain, the aunt interrupted:
COURT: If you want to change the ... order ...
AUNT: You have to file the papers.
COURT: ... file something.
The mother asked one last time, “but it will still be next year, right?” The aunt responded first:
AUNT: Okay, yes.
COURT: Whenever you file.
MOTHER: Okay.
AUNT: Yes.
The Superior Court issued a written order in January 2008 awarding the aunt permanent custody of T.P. The court said nothing in its order about the mother’s repeatedly expressed desire to regain custody of her child in a year. Instead, the court noted without further discussion that both the father and mother “wish for the plaintiff to have custody of their minor child.” Even so, the court did not rest its order on the parents’ consent nor cite to any provision of D.C.Code § 16-831 governing awards of custody to non-parent third parties. Rather, the court applied D.C.Code § 16-914 (2012 Repl.), which governs custody determinations “in any proceeding between parents,” and makes determinative a “best interest of the child” analysis using a list of statutory factors. Examining these factors, the Superior Court concluded that the aunt was “a fit and proper person to have permanent sole physical custody and permanent sole legal custody of the minor child T.P. until further order of the court,” and that to award such custody was “in the best interest of the minor child T.P.”
The mother did not appeal the January 2008 order. Rather, over the next three years she sought to regain custody of her daughter by filing a series of pro se motions for modification of this order. In these motions she represented that she had completed drug treatment, that she was no longer using drugs, and that she wanted to regain custody of her child, but that the aunt was reneging on her promise to return T.P. to her mother. Each motion was denied.
In January 2010, the mother filed her fourth pro se motion to modify custody, which is the subject of the order on appeal.
The hearing on the mother’s fourth motion for modification of custody was finally held in December 2012.
The Superior Court denied the motion, determining that Judge Saddler had “informed” the mother “that she would not forever be precluded from seeking custody in her own right, but that she would have to file a motion to seek a change.” The Superior Court also found that Judge Saddler had “indicated, perhaps not clearly enough for [the mother], that her written request would not necessarily result in an automatic grant [of modification], but would require a hearing and a best interest determination.” Although the Superi- or Court acknowledged that there were “portions of the transcript” that show that the mother and aunt “contemplated a time and circumstances (her complete recovery from drug use and abuse) when [the mother] would be able to care for” T.P. and when the aunt would be “receptive to returning the child” to her mother’s care, “[t]he transcript reveals that Judge Saddler after sufficient and patient inquiry, was satisfied that [the mother] understood that the custody order was permanent, and that [the mother] would have to return to court to obtain a change.” “As such” the Superior Court found “no indication on the record” that the mother did not give irrevocable consent to a transfer of custody of T.P. to the aunt under D.C.Code § 16-831.05(a).
Against this factual backdrop, the Superior Court then considered “whether the parental presumption (under D.C.Code § 16-831.05) applies in a modification proceeding where custody has been awarded to a third party.” Analyzing the statutory section that provides for the modification of a third-party custody order, D.C.Code § 16-831.11(a), the Superior Court concluded it did not. The mother moved for reconsideration of the court’s ruling on her motion to apply the parental presumption to the modification decision, but this motion was denied.
After hearing testimony on December 18 and 19, 2012, the court based its decision on the mother’s motion to modify custody solely on whether the standard set forth in D.C.Code § 16-831.11(a) — i.e., whether there has been a substantial and material change in circumstances and whether the modification would be in the child’s best interests — had been met. The court acknowledged that the mother had undergone a “drastic change in behavior and attitude.” Specifically, the Superior Court noted that the mother “no longer uses drugs, and has not been arrested since 2008,” that she “attended several parenting classes and seminars, as well as obtained part-time employment,” and that she “volunteers at a local elementary school.” The court also acknowledged that the mother had “put forth numerous witnesses vouching for the change in her demeanor, behavior[,] and maturity over the last two years.” The court “commended” the mother for this turn-around, but nonetheless determined that, although this constituted a “substantial change” under the statute, modification of the custody order was not in the best interests of T.P. This appeal followed.
II. Analysis
Title 16 of the D.C.Code contains two chapters that address child custody deter
The Council of the District of Columbia enacted Chapter 8A as part of the Safe and Stable Homes Act in 2007. This legislation was at least in part a response to this court’s decision in W.D. v. C.S.M.,
Under the third party custody statute, the statutory parental presumption must be dealt with in one of three ways before a third party custody order is entered. First, the parental presumption may be preserved if the parent enters into a revocable, court-approved
Second, the parental presumption may be overcome if the third party seeking custody of the child can rebut the presumption by clear and convincing evidence. D.C.Code §§ 16-831.06(b), 16-831.07(a), (d). Once rebutted, the court may consider whether custody with a third party is in the best interest of the child under the factors set forth in D.C.Code § 16-831.08. However, “[i]f the court concludes that the parental presumption has not been rebutted by clear and convincing evidence, the court shall dismiss the third-party complaint and enter any appropriate judgment in favor of the parent.” D.C.Code § 16-831.07(d).
The mother argues that the Superior Court failed to apply the correct law in its January 2008 order granting custody to the aunt, because the court should have applied the provisions of Title 8A of Chapter 16 protecting her rights as a parent instead of the provisions of Title 9 of Chapter 16 governing intra-parental custody disputes, which contain no such protections. While it seems clear that the Superior Court did not apply the correct law, that is not, and cannot be, the issue before us. The mother never appealed the 2008 custody order. The only orders that are before this court are the Superior Court’s 2012 and 2013 orders resolving the mother’s fourth motion to modify custody.
The question thus becomes whether the parental presumption that is statutorily acknowledged in proceedings to transfer custody of a child from a parent to a third party may be considered in modification of custody proceedings conducted pursuant to D.C.Code § 16-831.11. The mother argues the parental presumption should have been applied in the consideration of her fourth motion for modification of custody, because she did not knowingly and intelligently waive this presumption at the December 2007 hearing. Amicus defends the Superior Court’s determination that the parental presumption does not apply in custody modification determinations under D.C.Code § 16-831.11. Moreover, going a step beyond the Superi- or Court — which found that the mother had knowingly consented to a permanent custody transfer to the aunt
We begin with the text of D.C.Code § 16-831.il,
As we read D.C.Code § 16-831.11, unless the custody transfer was made pursuant to a revocable consent agreement (in which case the parental presumption remains fully intact and is not relevant to modification because the parent can unilaterally decide to modify the arrangement), the parental presumption does not apply at the modification stage. A parent seeking to regain custody awarded to a third party enjoys no special status and must bear the burden of proof when seeking to modify an order. The only statutory concern under these circumstances is the best interest of the child.
This makes sense against the backdrop of D.C.Code §§ 16-831.05 and 16-831.06.
The mother clarified at oral argument before this court, however, that her argument is not that the parental presumption must always be considered in modification determinations, but only when a parent, like her, does not knowingly and intelligently give irrevocable consent to a custody transfer. We find this argument compelling.
Again, we note that the statute was written with a strong desire to protect the rights of parents, requiring that for other-than-revocable consent transfers the statutory presumption be rebutted or waived at the outset. It would make little sense, however, to provide robust protection for parental rights for the former mechanism for disposing of the parental presumption — requiring the third party seeking custody of the child to bear the high burden of rebutting the parental presumption by clear and convincing evidence — but to provide only weak protection with the latter, by liberally recognizing irrevocable consent-based waivers without assurance that those waivers were knowing or intelligent.
Reviewing the transcript of the December 2007 hearing, the Superior Court in this case made the factual determination that the mother knew she was agreeing to permanently relinquish custody of T.P. to her sister and Judge Saddler adequately apprised her of the consequences of her consent.
The transcript of the December 2007 custody hearing indicates that the mother, appearing pro se, did not intend to permanently give up custody of T.P. to the aunt. Although Judge Saddler told the mother that the order would “say permanent,” she immediately undercut this admonition by stating that it “does not mean forever,” and informing the mother she could file a modification motion. Moreover, from the mother’s subsequent statements on the record, it is apparent that she thought that she was consenting to a temporary arrangement and that she intended to file a modification motion as soon as she completed treatment, within a year. Indeed, the aunt, whom the court allowed to engage in a lengthy dialogue in open court with the mother, was integral in leading the mother to believe that she would only
Relatedly, the mother did not understand the consequences of giving her consent to a transfer of custody to the aunt. Certainly the mother understood that she would need to take certain steps to regain custody of T.P.: she needed to “get [herself] together,” and she needed to file a motion. Indeed, Judge Saddler imprecisely informed her that that was “all you have to do.” But the mother does not appear to have understood that these steps would not be pro forma and that custody of T.P. would not immediately be returned to her upon taking such actions. In particular, she does not appear to have understood that she was permanently losing her special status as parent to maintain custody of her child, and thus, that in order to regain custody of T.P. she would have to prove to the satisfaction of the court not only that she met the aforementioned goals constituting “a substantial and material change in circumstances,” but also that it would be in her daughter’s best interests to be returned to her care. See D.C.Code § 16-831.11(a).
The mother does not appear to have understood this, because, the Superior Court’s finding notwithstanding, Judge Saddler never so advised the mother. Although the Superior Court found that Judge Saddler indicated “that [the mother’s] written request would not necessarily result in an automatic grant, but would require a hearing and a best interest determination,” in fact, contrary to the Superior Court’s findings, there was no mention at the December 2007 hearing that that any modification motions filed by the mother would turn solely on what a court deemed was in the “best interests of the child.” Meanwhile, the aunt indicated that she would not oppose an effort by the mother to regain custody and that she and the mother would petition the court “together” to make this happen.
To assess the. mother’s understanding of the nature and consequences of her consent to a custody transfer, we look not only to what was said (and unsaid) at the December 2007 hearing, but also to what the mother did afterwards. As instructed, she filed repeated motions to modify the custody order, in which she asserted that she had successfully completed treatment and gotten her life back together, but that although she had upheld her end of the bargain, the aunt had “betray[ed] [her] trust.” In so doing, the mother reflected her understanding that the transfer of custody had not been permanent and that she thought she had an enforceable agreement with her sister to have T.P. returned to her.
Accordingly, we determine that the mother did not knowingly and intelligently consent to a permanent transfer of custody as the statute requires. And because there was no meaningful consent, the parental presumption must be applied, for the first time, in the Superior Court’s resolution of the mother’s fourth motion to modify custody. Unless the parental presumption is rebutted on remand (or unless the mother conveys new legitimate consent to the aunt’s continued custody of T.P.), the mother’s motion for modification may not be denied.
For the reasons set forward above, we reverse the Superior Court’s order denying the mother’s motion to modify custody and remand the case for further proceedings consistent with this opinion.
So ordered.
Notes
. In this opinion, all references to actions by the Superior Court between 2007 and 2009 are to Judge Saddler; all references to the actions of the Superior Court after November 2011 are to Judge Irving. The Honorable John H. Bayly, Jr. and the Honorable Zinora M. Mitchell-Rankin were also assigned to this case between 2009 and 2011, but made no rulings pertinent to this appeal. It is unclear why the case was transferred so many times.
. The father was 71 years old when the aunt filed the complaint for custody.
. We note that neither the aunt nor amicus curiae Children's Law Center contends that any of the Superior Court's previous denials of the mother's motions for modification were merits-based such that her fourth motion to modify custody was barred by res judicata.
. Because the mother did not test positive on any of the. court-ordered drug tests administered between June 2010 and August 2011, the Superior Court eventually discontinued drug testing of the mother. The court later credited the mother’s testimony that she has not used drugs since June 2008.
.It is not clear from the record why the case languished for two and a half years. In the summer of 2010, the Superior Court ordered a home study, a psychological evaluation of the mother and father, and bonding studies for T.P. and all parties. All these studies were completed by April 2011. In November 2011, seventeen months after the mother filed her motion for modification, the court set the case for trial. But that date did not hold. Instead,
. Specifically noting that it was "mindful of the sanctity of parent[s’] rights,” the Committee “narrowly tailored this bill's third party standing in order to show consideration of those rights." Judiciary Comm. Report at 2. See D.C.Code § 16-831.02 (addressing who may seek custody of a child as a third party).
. See D.C. Council, Comm, on Human Servs., Report on Bill 17-41 at 4-5 (Mar. 23, 2007) (quoting a statement from former D.C. Superior Court Judge Eric Holder stating that the Act "provides a clear framework to protect the rights of parents”); id. at 5-6 (“The Supreme Court has recognized that natural parents have a fundamental liberty interest ... in the care, custody, and management of their children, which is protected by the Fourteenth Amendment’s Due Process Clause.... Natural parents do not lose this constitutionally protected right simply because they have not been model parents or have lost temporary custody of their child to the State.” (citing this court’s opinion in In re C.M.,
.The court may reject this agreement if it determines it is not in the best interest of the child. D.C.Code § 16-831.06(d)(1).
. Judge Irving appears to have understood waiver of the parental presumption to require knowing and intelligent consent. His order with regard to the application of the presumption hinged in large part upon his determination that “after sufficient and patient inquiry,” Judge Saddler was "satisfied that [the mother] understood that the [cjustody [o]rder [would be] permanent, and that [she] would have to return to Court to obtain a change.” He found that the mother "indicated more than once that she understood, and maintained her consent,” and further, that there was "no indication on the record that [she] did not consent to [the aunt] having custody of the minor child.”
. Morrissey,
. See In re T.L.J.,
. We note that in other states where the transfer of custody to non-parent third parties is permitted, the valid waiver of parental rights is premised on a meaningful understanding of the effects of their actions. For example, the Tennessee Supreme Court has emphasized “that a parent's voluntary relinquishment of custody must be made with knowledge of the consequences of that decision,” asserting that where a natural parent does so "without knowledge of the effect of that act, then it cannot be said that these rights were accorded the protection demanded by the Constitution. As such, application of the [parental presumption] in a subsequent modification proceeding would be justified.” Blair v. Badenhope,
.As previously discussed, we recognize that the fundamental right to parent has constitutional underpinnings. See Troxel v. Granville,
. Judge Saddler made no such factual findings in her order: She simply found that the mother "testified that [the aunt] can devote her full time and attention to the minor child,” and noted in her discussion of the D.C.Code § 16-914 best interests analysis that the mother "wish[ed] for the [aunt] to have custody” of T.P.
. Hernandez v. Banks,
. To the extent the Superior Court relied on Judge Saddler's January 2008 order to determine that the mother knowingly and intelligently consented to an unconditional custody transfer, this gives us further cause for concern. The 2008 order simply does not capture what the mother said at the hearing or the qualified nature of her consent.
. The mother argues in the alternative that there is no need for her to seek modification of the third party custody order because, in