Please join us for an en banc oral argument before the D.C. Court of Appeals, In re Ta.L., on Tuesday, June 17, 2014, at 10 am in the Ceremonial Courtroom of the Historic Courthouse, 430 E Street, NW, Washington, DC. The UDC Legal Clinic represented one of the appellants in the case, and the following students worked on the case: Mollie Byron, Aleia Barlow, Erin Hurd, Michael Beckham, Crystal Stanley, Shalena Caesar Williams, Brianna Ford, Jason West, Courtney Dixon, Mary Virginia Andraos, Aida Vindell, John Marlow, Aysha Gregory, Jasmin Tohidi, Jennifer Blemur, Leandra Carrasco, Deidre Brown, Jamie Stevens, Megan Challender, Ernesto Bartels, Meredith Mathis, Julie Case, Carl Engstrand, Angela Watson, Elizabeth Stinebaugh, Sadredin Mahmoudi, Stacey Massaro, Jason Zelbo, Taso Saunders, Caitlin Cavness, Joyce Aceves-Amaya, Nicole McBride, Jonell Henderson, and Dana Blond under the supervision of LaShanda Taylor Adams and Tanya Asim Cooper. Please come and sit on the right side of the courtroom, behind the appellants.
This case is about two children who were removed from their parents at a very young age, placed with foster parents who wanted to adopt them, and never returned home despite each parent's participation and cooperation with the agency. The father only stipulated that his children were neglected, and during the fourteen months in which the permanency goal for the case was reunification, both parents designated willing and able family members to care for their children, but the agency did not comply with its duty to find family. The children naturally developed an attachment/bond with the foster parents, which the agency and foster parents used to justify why the children should not be returned to their parents but instead adopted by the foster parents.
After the children were in agency care for fourteen months, and because the foster parents wanted to adopt the children, the judge changed the permanency goal from reunification with the parents to adoption by the foster parents. No intervening goals, like guardianship or adoption by a relative, were considered despite the prior identification of a willing and able paternal aunt. Once the goal changed to adoption, both parents supported and consented to the aunt adopting their children. The aunt subsequently filed an adoption petition and retained counsel. During the ensuing two-year period between the change in permanency goal and the adoption trial, the children continued to live with the foster parents—notwithstanding the parents’ expressed preference for placement with the aunt in what would have been an uncontested adoption and the “weighty consideration” owed to the parents’ preference—while the aunt was limited to supervised visits with the children.
The trial court found that the aunt is an entirely suitable adoptive parent. At the time of trial, she had been employed as a special police officer at the Smithsonian for 19 years, owned a five-bedroom home in a quiet neighborhood, and had been licensed as a therapeutic foster parent who has successfully raised a foster child as well as her own children. During her visits, “the children are excited to see the aunt when they arrive for the visits, and the children’s interactions with the aunt during the visits are appropriate and positive. She ably directs the children’s play, sets appropriate limits, has a nice manner with the children, and is attuned to their needs.” Had the agency placed the children with the aunt, either during the reunification period or once the permanency goal changed and the parents’ preference for adoption by the aunt had been expressed, there would now be no dispute for the Family Court or the D.C. Court of Appeals to resolve.
Despite the parents’ (and the law’s) strong preference for the aunt and the aunt’s undisputed suitability as an adoptive placement, the trial court considered evidence about the bonds formed between the children and their foster parents to be dispositive. The trial court concluded that it could not consider, because it could not do anything to remedy, the agency’s failure to pursue a family placement proposed by the parents back in 2008. The trial court was persuaded by expert testimony that by the time of trial, a disruption of the children’s attachments with the foster parents would pose unacceptably grave risks of harm to the children. “As to each child,” the trial court ruled, “the risks of harm from an order granting the aunt’s adoption petitions are simply too great to accept, notwithstanding the constitutional presumption favoring the preferences of the biological parents and the court’s generally favorable view of the aunt and her caretaking abilities.”
On August 22, 2013, because the trial court “failed to give weighty consideration to the adoption petition of the biological parents’ preferred caregiver, the aunt, a three-member Division of the D.C. Court of Appeals reversed and remanded the case “for the trial court to give [the aunt’s] adoption petition the weighty consideration it is due as the petition of the biological parents’ preferred caregiver.” No evidence existed that the trial court credited that E.A. was unfit or unsuitable as a caregiver for the children. To the contrary, the appellate court noted that the aunt has adopted the children’s younger brother, and is “forceful, healthy, and competent’ . . . as a caretaker for [the two children in question].”
In its analysis, moreover, the Ta.L. court explained the limited probative value of one-sided attachment and bonding studies in weighing competing adoptions, as well as the faulty logic in relying on such evidence: “If such evidence were sufficient, nearly all neglected children would remain with their foster parents against their biological parents’ interests, undermining the ‘weighty consideration’ requirement.” Because the trial court here had not “given sufficient consideration to the [biological] parent[s’] choice [,]” and lacked sufficient evidence to otherwise “conclude that [the aunt] is an unfit caregiver” or placement of the children with her would be detrimental to their best interests, the Ta.L. court reversed and remanded for new trial “to give E.A.’s adoption petition the weighty consideration it is due. . .”).
On January 29, 2014, the D.C. Court of Appeals granted the appellees’ (foster parents’ and GAL’s) petitions for rehearing en banc. On rehearing en banc, Appellants and amici curiae Legal Aid Society of the District of Columbia, National Association of Counsel for Children, Center for Family Representation, Inc., Family Defense Center, and Family Law Professors Vivek S. Sankaran, Christine Gottlieb, and Martin Guggenheim and amicus curiae Public Defender Service for the District of Columbia are asking this Court to also hold that a change in the permanency goal from reunification to adoption is made appealable in the District, similar to a majority of our sister jurisdictions.