In re J.M. & D.M. S.M. , 193 A.3d 773 ( 2018 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 17-FS-1104 & 17-FS-1113
09/20/2018
IN RE J.M. & D.M.;
S.M., APPELLANT.
Appeals from the Superior Court
of the District of Columbia
(NEG-339-15 & NEG-340-15)
(Hon. Noel Johnson, Trial Judge)
(Hon. Jennifer M. Anderson, Reviewing Associate Judge)
(Argued April 18, 2018 Decided September 20, 2018)
Lauren B. Schwartz for appellant S.M.
Jon S. Pascale filed a statement in lieu of brief, for appellee K.L.
Pamela Soncini, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Loren L. AliKhan, Acting Solicitor
General at the time the brief was filed, and Stacy L. Anderson, Acting Deputy
Solicitor General at the time the brief was filed, were on the brief, for appellee
District of Columbia.
Abraham Sisson, guardian ad litem, with whom Katherine McGiffin and
Ileah Welch, guardians ad litem were on the brief, for appellants J.M. and D.M.
Before THOMPSON and BECKWITH, Associate Judges, and PRYOR, Senior
Judge.
2
THOMPSON, Associate Judge: S.M. (the “Mother”), the birth mother of the
minor children J.M. and D.M. (the “children”), challenges a decision of the
Superior Court that changed the permanency goal for the children from concurrent
goals of reunification with S.M. and adoption to a sole goal of adoption. The
Mother contends that the District of Columbia (the “District”) did not show by a
preponderance of the evidence that a permanency-goal change to adoption was
supported by the factors this court outlined in In re Ta.L., 149 A.3d 1060 (D.C.
2016) (en banc). The District and the children’s guardian ad litem (the “GAL”)
defend the goal change. The District and the GAL also contend that a review in
2017 of the October 2016 permanency-goal change (in response to the Mother’s
March 2017 request for a Ta.L. hearing) was not authorized by Ta.L., and the GAL
argues in addition that neither a review by a Superior Court associate judge nor
these consolidated appeals were authorized by Ta.L. under the circumstances of
this case (i.e., a change from adoption as one of the concurrent permanency goals
to adoption as the sole permanency goal). For the reasons set out below, we affirm
the judgment of the Superior Court retaining the sole goal of adoption as the
children’s permanency goal.
3
I.
On August 19, 2015, after receiving a hotline referral, a District of Columbia
Child and Family Services Agency (the “agency” or “CFSA”) social worker found
the Mother and the children, who at the time were ages three and eleven months,
respectively, living in the Atlas Glass factory on Kenilworth Avenue, N.E., where
there were open blades and speckles of glass on the floor, no furniture, and a
temperature of almost 100 degrees. The agency arranged for emergency housing
for the family at a hotel.
On August 24, 2015, a social worker visited the family at the hotel and
observed that D.M. had two black eyes as well as other visible injuries. The
children were then transported to a hospital where they were examined by a
physician. The physician found that the children did not have good hygiene; that
J.M. had a scar on his ankle that was consistent with a burn mark, and had more
than ten skin markings about the size of finger tips on his trunk, back, arms, and
legs, most likely caused by J.M.’s having been “grabbed too hard”; and that D.M.
had a bruise on each eye, lacerations on her legs, a marking on her thigh that
looked like a healed scar from a burn, and swelling on her frontal scalp caused by a
recent head trauma. D.M. told a CFSA social worker that the Mother had hit her.
4
In an initial hearing on August 27, 2015, the magistrate judge ordered that
the children be placed in shelter care. After a hearing on November 9, 2015, the
children were adjudicated neglected and were committed to the custody, care, and
control of CFSA. The magistrate judge established concurrent goals of
reunification with the Mother and adoption and stated that “[i]n order for the
children to safely return home[,] the [M]other must demonstrate the capacity to
keep the children safe through successful and consistent visitation.” The Mother
had a history of mental illness; according to the parties’ briefs, she had been
diagnosed with bipolar disorder and schizophrenia. The magistrate judge noted
that the agency had made a referral for the Mother to undergo a mental health
evaluation. On February 24, 2016, the magistrate judge found that the Mother had
yet to complete a mental health assessment and parenting classes, had not visited
with the children on a regular basis, and for two months had not had contact with
the agency. The magistrate judge retained the concurrent goals of reunification
and adoption, but ordered a mental health evaluation. On June 30, 2016, the
magistrate judge found that the Mother had completed the mental health
assessment but “ha[d] refused the recommended services from the evaluation.”
5
On October 12, 2016 — two months before this court issued its en banc
opinion in Ta.L. — the court held a permanency hearing and at the conclusion
changed the children’s permanency goal from reunification concurrent with
adoption to adoption only. The order changing the permanency goal stated the
following rationale:
The [M]other has not engaged with therapeutic services
as recommended. She has not demonstrated an ability to
safely parent the [children] by moving towards
unsupervised visits. To date, the [M]other remains
noncompliant with services and her contact with the
agency has been minimal to non-existent. She visited
only once with the [children] since July 2016. [She]
resists engaging in therapy and/or signing release of
information to allow the social worker to communicate
with service providers.
Thus, as the magistrate judge later summarized, he made the October 2016
permanency-goal change upon a determination that the Mother “had failed to
engage in recommended services and attend visits with the [children] consistently.”
On March 17, 2017, the magistrate judge granted the Mother’s request for an
evidentiary hearing on the permanency-goal change pursuant to Ta.L. The court
ordered that the evidence at the hearing would pertain to the time period from the
6
inception of the case until October 12, 2016, when the permanency goal was
changed.1 The Mother does not challenge that ruling in these appeals.
The magistrate judge presided over a two-day hearing on May 22 and July 6,
2017. The court heard testimony from Stephanie Gittinger, the social worker who
was assigned to the case in August of 2015; from Lucy Aderibigbe, the social
worker assigned to the case starting at the end of February 2016; and from Julius
Ngole (the only witness called by the Mother), who identified himself as a
community support worker with a service agency known as MBI. Mr. Ngole
testified that his role was to “[e]ducate [the Mother] about her services, encourage
[the Mother] to engage in receiving the mental health services,” and “[m]ak[e] sure
that [the Mother was] in compliance with what is required of her.” Although the
Ta.L. hearing was the Mother’s opportunity to “testify, under oath concerning any
alleged failure on the District’s part to provide the requisite services and resources”
and to testify about her “own efforts to meet the goals set forth in the plan that was
developed to promote reunification,” Ta.L., 149 A.3d at 1079, the Mother was not
1
In denying a motion for reconsideration of this ruling, the magistrate judge
reasoned that “although the [c]ourt can envision circumstances in which evidence
from the period after the permanency goal change may be relevant to clarify or
provide context for the period before, [the Mother] does not suggest that such is the
case here.”
7
present for any portion of the proceedings on May 22 and did not testify during the
hearing.
Following the hearing, the magistrate judge affirmed the permanency-goal
change to adoption in an order dated July 18, 2017. The magistrate judge first
determined that the “[g]overnment [had] provided the parents with an appropriate
and reasonable plan for achieving reunification.” See id. at 1078. The magistrate
judge cited “the circumstances of removal”2 (i.e., the Mother’s “history of mental
health issues,” “allegations of physical abuse,” and “the family’s lack of
appropriate housing”) and Ms. Gittinger’s “in depth” explanation of the “agency’s
rationale for each of its plan requirements” (including that “all three of [the
Mother’s] older children had been removed from her care due to allegations of
neglect that stemmed, at least in part, from her mental health issues”). The
magistrate judge observed that “the agency case plan focused on improving [the
Mother’s] mental health, coping skills, and daily parenting behavior,” maintaining
2
The magistrate judge relied on the findings of fact in the February 19,
2016, neglect order. The Mother asserts “that it was improper for the [m]agistrate
[j]udge to take judicial notice of the . . . [n]eglect [f]indings.” This court has said,
however, that “it is generally proper for a court to take notice of factual findings
made in a prior related proceeding[.]” In re P.D.J.K., 182 A.3d 1234, 1238 (D.C.
2018); see also In re J.M.C., 741 A.2d 418, 424 (D.C. 1999) (“[T]he trial court at
least may take judicial notice of prior neglect proceedings for the purpose of
providing related and relevant background information[.]”).
8
the parent-child bond, and on the Mother’s securing safe and appropriate housing.
Finding that the case-plan requirements were “narrowly tailored to help [the
Mother] remedy the circumstances that led to the [children’s] removal” and to help
her “parent the children on her own safely,” the magistrate judge concluded that
the agency’s plan for reunification was “reasonable and appropriate.”
The magistrate judge next found that the government had “expended
reasonable efforts to reunify the family.” More specifically, the magistrate judge
found that the agency had “made reasonable efforts to communicate the
requirements of the plan” to the Mother (in that, at every visit, both Ms. Gittinger
and Ms. Aderibigbe “spoke with [the Mother] about the plan requirements and the
importance of complying with services”). The magistrate judge also found that the
agency had “made reasonable efforts to assist [the Mother] in achieving the goals
of the plan.” The magistrate judge noted that social workers referred the mother to
MBI for individual therapy and mental health services, made referrals to MBI’s
housing program and CFSA’s parent advocacy program for parenting classes,
encouraged the Mother to participate in anger management and parenting skills
classes, ensured that visits with the children were scheduled at times and locations
most convenient for the Mother, “reach[ed] out . . . by phone, text, as well as
through family” when the Mother failed to attend visits with the children, and
9
provided transportation and accompanied the Mother to assist her to obtain
housing.
Further, the magistrate judge found that the Mother “failed to make adequate
progress toward satisfying the requirements of the case plan to achieve the goal of
reunification.” The court found that while the Mother “completed a mental health
evaluation . . . , she failed to engage in any of the recommended services including
individual therapy, parenting skills classes, and anger management classes.” The
magistrate judge noted that Mr. Ngole (who testified that the Mother participated
in a mental health day program “akin to group therapy” “[s]ometime in 2015”) was
“unable to . . . describe her level of compliance with individual therapy prior to
the . . . goal change” or to say “if [the Mother] had participated in individual
therapy at all prior to the goal change.” The court also found that the Mother
“stopped attending visits altogether in July and August 2016,” that the agency’s
multiple attempts to contact the Mother during that period were unsuccessful, and
that the Mother had attended only a single visit with the children in September
2016.
Finally, the magistrate judge found that the agency had adequately explored
vehicles for avoiding pursuit of termination of parental rights, specifically, kinship
10
placements. The court noted that the agency had been unable to pursue one of the
children’s maternal aunts as a placement resource because the aunt “never
followed up on the agency’s referral [for assistance with finding the larger housing
she would need to accommodate the children] or obtained larger housing.” The
magistrate judge found that the Mother “did not provide the agency information
about any other maternal relatives who may be willing to care for the children.”
Upon the Mother’s motion for review of the magistrate judge’s ruling, the
reviewing associate judge affirmed the permanency-goal change to adoption.
These appeals followed.3
3
K.L., the biological father of J.M., has submitted a statement in lieu of
brief asserting that he “supports the positions and arguments stated in [the
Mother’s] brief.” Prior to the permanency-goal change, the agency was unable to
contact K.L., who, the magistrate judge found, was incarcerated at St. Elizabeths
Hospital (for competency testing in connection with murder charges) “throughout
the life of this case.” The agency advised the court in a September 26, 2016,
permanency review report that in light of K.L.’s apparent mental instability, it was
unlikely that reunification with him could occur.
D.W. is the putative father of D.M. The magistrate judge found that the
Mother was unable to provide contact information for D.W. and that his
whereabouts remained unknown at the time of the hearing and beyond. The
magistrate judge further found that the “agency’s inability to develop a plan for
reunification with [D.W. and K.L.] was reasonable and appropriate under the
circumstances” and that the agency’s “failure to make efforts to achieve
reunification with the fathers” likewise was reasonable.
11
II.
We begin our analysis with consideration of two preliminary matters. First,
the District and the GAL argue that the magistrate judge had no authority to
reconsider a change in permanency goal it made many months before the Mother’s
request for an evidentiary hearing, and before this court’s decision in Ta.L. We
must reject that argument because a division of this court decided otherwise in In
re Sa.C., 178 A.3d 460 (D.C. 2018). See id. at 461 (applying the “firm rule of
retroactivity” and holding that because “the initial adverse change in the [child’s]
permanency goal from reunification to adoption [had] not become final” when
Ta.L. was issued (in that the child’s “neglect case was still being litigated in the
trial court” at the time), “the trial court properly sought to follow In re Ta.L.”
(internal quotation marks omitted)).
Second, the GAL contends that “an appellate court does not have
jurisdiction to review a trial judge’s decision that only retains a previously ordered
permanency goal of adoption.”4 The GAL has correctly perceived that this court’s
4
Cf. State v. Christopher G., Nos. A-12-945 through A-12-947, 2013 Neb.
App. LEXIS 137, at *17 (July 30, 2013) (“Since the sole change in the August
2012 order was the change in the permanency objective from reunification and
adoption to adoption only, with no other changes, the order merely continued a
(continued…)
12
en banc opinion in Ta.L. did not specifically authorize immediate appeals when the
Superior Court changes the permanency goal from adoption and reunification as
concurrent goals to adoption as the sole permanency goal. That said, we discern in
the majority opinion in Ta.L. an intent to afford an evidentiary hearing and an
immediate appeal whenever there is a permanency-goal change resulting in a sole
goal of adoption. While acknowledging that the trial court may establish
“concurrent goals of reunification and adoption,” the en banc majority envisioned
that a Ta.L. hearing will “enable parents to present any other evidence that they
believe supports a decision to continue with reunification efforts” and that will
avoid “a permanency goal decision that might lead to a situation that destroys
family bonds.” 143 A.3d at 1079 (emphasis added).
We recognize that in the instant case, even with the permanency-goal change
from the concurrent goals of reunification and adoption, to adoption as the sole
goal, the trial court has ordered a continuation of reunification-type efforts. For
example, in the October 2016 order that changed the permanency goal, the court
continued to order supervised visitation between the Mother and the children and
unsupervised visitation “at the discretion of the social worker and GAL,” and
(…continued)
previous determination and did not affect a substantial right of [the biological
father]. As such, the order appealed from was not a final, appealable order.”).
13
stated that “[b]oth the [M]other and the [a]gency are expected to take reasonable
steps . . . to ensure that the visits take place.” Likewise, the May 17, 2018,
Permanency Hearing Order provides for supervised visitation between the Mother
and the children, with unsupervised visits at the discretion of the social worker and
GAL. We also note that if, as the Mother asks, the change in permanency goal in
issue here is reversed, the result would be reinstatement of the goal of adoption as
one of the concurrent goals. Nevertheless, because the change from concurrent
goals of reunification and adoption to a sole goal of adoption presumably has
“allow[ed] the District to divert . . . resources from reunification to adoption,” id.,
we conclude that the holding of Ta.L., allowing an immediate appeal of a
permanency-goal change to adoption, applies in the circumstances of this case.
III.
Our task in this matter is to determine “whether the trial court . . . made the
requisite findings to justify a goal change and whether [the court’s] findings were
adequately supported by the record.” Id. at 1080. “While procedurally this appeal
is from the associate judge’s order,” we must ‘“look to the findings and
conclusions of the fact finder [the magistrate judge] on which that ruling is
14
based.”’ In re J.O., 176 A.3d 144, 153 (D.C. 2018) (quoting In re C.L.O., 41 A.3d
502, 510 (D.C. 2012)).
To establish that a permanency-goal change to adoption was warranted, the
District “must prove by a preponderance of the evidence that [(1)] it has provided
the parents with a reasonable plan for achieving reunification, that [(2)] it
expended reasonable efforts to help the parents ameliorate the conditions that led
to the child being adjudicated neglected, and that [(3)] the parents have failed to
make adequate progress towards satisfying the requirements of that plan.” Ta.L.,
149 A.3d at 1078. In addition, the District must show that “other vehicles for
avoiding the pursuit of termination, e.g., kinship placements . . . have been
adequately explored.” Id. at 1079.
IV.
A.
The Mother’s brief on appeal first takes issue with the agency’s case plan for
achieving reunification. The Mother does not challenge the trial court’s finding
that the case plan (set out in a February 2016 document and an August 2016
15
update) was tailored to help her remedy the circumstances that led to the children’s
removal. Rather, she contends that the plan was not “appropriate and reasonable”
because she did not sign the plan documents and because the August 2016 plan
document did not assign responsibility to the agency for any of the action
components.
We have little trouble concluding that those omissions did not render the
case plan for achieving reunification unreasonable or inadequate. As described
above, the magistrate judge had directed, in its November 9, 2015, Disposition
Hearing Order, that “[i]n order for the children to safely return home[,] the
[M]other must demonstrate the capacity to keep the children safe through
successful and consistent visitation.” The magistrate judge also ordered the
Mother to participate in a mental health evaluation and “follow through with any
recommendations.” The case plan in turn called for the Mother to “complete the
court-ordered mental health evaluation and comply with all of the
recommendations,” to “complete[] an appropriate parenting course” and “attend
her therapy sessions regularly” (actions that were recommended in the mental
health evaluation), and to “improve her attendance at visits with the children.”
Thus, the case plan mirrored what the magistrate judge had ordered; it did not set
out requirements that became effective only upon the Mother’s signature. Further,
16
the February 2016 plan acknowledged the social worker’s responsibility to make
appropriate referrals for services and housing, to schedule and supervise visits
between the Mother and the children, and to maintain contact with the Mother’s
and D.M.’s therapists.
The August 2016 case plan document (which Ms. Aderibigbe explained was
prepared at a time when the Mother was not in contact with the agency, which
therefore was unable to obtain her signature) was an update that spelled out in
detail action items the Mother was to achieve (e.g., that the Mother would “exhibit
age-appropriate redirection and discipline techniques” with the children, and would
“not exhibit verbal aggression 80 percent of the time while interacting with the
social worker”). It is true that the August 2016 plan document did not assign new
responsibilities to the agency, but neither did it remove the agency’s responsibility
for the efforts described in the February 2016 document. We further note that the
magistrate judge’s ruling that the Mother had failed to make adequate progress
toward reunification was not based on any of the detailed “action components”
spelled out in the August 2016 document.
17
B.
The Mother next argues that the District did not prove that it “expended
reasonable efforts to help the parents ameliorate the conditions that led to the child
being adjudicated neglected.” Ta.L., 149 A.3d at 1078; see also D.C. Code § 4-
1301.09a (2012 Repl.). In particular, the Mother argues that the agency failed to
assist her with “[o]ne of the primary barriers to reunification” — her “mental
health” — in that it “failed to obtain necessary documentation from [her] mental
health provider, MBI.”5
We focus our analysis on what Ms. Aderibigbe did, as she was the social
worker during the eight months before the court changed the permanency goal.6
Ms. Aderibigbe explained that she was never able to confirm with a mental health
provider whether the Mother was receiving therapy because the Mother repeatedly
refused to consent to a release of information (and also did not tell Ms. Aderibigbe
5
The Mother asserts that documentation from MBI would have shown her
compliance with the recommended mental health services, but the testimony of her
own witness (Mr. Ngole) at the Ta.L. hearing belies that claim.
6
This was not “too short of a period for social workers to work towards
reunification.” In re A.B., 955 A.2d 161, 163 n.1 (D.C. 2008).
18
that she had signed a release when Ms. Gittinger was the assigned social worker). 7
The Mother did not dispute this testimony. In light of it, and although we question
why Ms. Aderibigbe was not made aware of the release the Mother had signed for
Ms. Gittinger,8 we cannot conclude that Ms. Aderibigbe’s failure to contact an
MBI mental health provider amounted to a lack of reasonable efforts on the
agency’s part.9 Cf. In re Lake, No. 282036, 2008 Mich. App. LEXIS 2130, at *3,
*8-9 (Oct. 21, 2008) (rejecting the argument that the agency “failed to offer
meaningful services to work toward reunification” where, inter alia, the mother’s
“unwilling[ness] to execute releases to allow . . . shar[ing of] information” with the
agency “frustrated the reunification efforts and prevented her from benefiting from
services”).
The Mother also argues that it was not enough for the agency to refer the
Mother for the recommended mental health services by giving her a list of service
7
Ms. Aderibigbe testified that she “[n]ever bec[a]me aware that there had
been a prior release signed by [the Mother] for the [a]gency.”
8
As the reviewing associate judge put it, “while the social worker bears
some blame here, [the Mother] could easily have rectified this
miscommunication.”
9
MBI community support worker Ngole testified that he spoke with Ms.
Aderibigbe several times, but that the conversations were limited to her expressing
appreciation for his support.
19
providers, leaving the Mother to obtain services on her own. We can agree that in
some (perhaps most) circumstances the agency’s handing the parent a referral list
will fall short of reasonable efforts to assist with family reunification. Many
parents involved with the system “do not recognize that they need assistance; they
are not proactive. To the contrary, many are intimidated by ‘the system,’ lack
good communication skills, and are unaware of how to proceed to help
themselves. To state the obvious, that is why they need the agency’s expertise and
assistance.” In re James G., 943 A.2d 53, 81 n.24, 86 (Md. Ct. Spec. App. 2008)
(concluding that the state’s services “must adequately pertain to the impediments
to reunification” and that a single referral to one employment program did not
constitute reasonable efforts to assist a parent with obtaining employment).
In this case, however, the Mother had (as the agency was aware) a
longstanding familiarity and relationship with MBI. The District’s brief asserts,
and the Mother does not dispute, that the Mother “became a MBI client in 2013,”
and Mr. Ngole testified that he first began working with the Mother in 2014. Thus,
the social worker’s referring the Mother to MBI for mental health services did not
amount to leaving the Mother to obtain services on her own. Moreover, as the
reviewing associate judge noted, Ms. Aderibigbe “actually [accompanied the
Mother] to a mental health evaluation in April 2016.”
20
The Mother finds fault in the agency’s not having referred her to parenting
classes and a housing program, as the case plan specified (“The social worker will
refer [S.M.] to an appropriate parenting course” and “will refer [S.M.] to
appropriate housing programs”), but having instead “referred [her] to the parent
advocate program for parenting education resources and general support” and to
MBI for housing assistance. However, the case plan did not require the social
workers to make direct referrals to parenting and housing assistance programs, no
law or precedent of which we are aware requires that, and it may well be that the
agency’s referral of a parent to other referral agencies is quite appropriate if those
other agencies are most familiar with available resources.
In any event, Ms. Aderibigbe testified that the Mother presented to her
undated documentation showing completion of a parenting and an anger
management class (causing Ms. Aderibigbe to be concerned about whether the
Mother had taken any classes recently, in connection with this case, and to direct
the Mother several times to “get a certificate with the date on it”). There is no
evidence that the Mother — who asserts in her brief that she “was able to
successfully complete . . . parenting classes” — failed to document her attendance
at parenting classes because the social worker had made only an indirect referral,
21
or that she failed to attend parenting and anger management classes because any
classes identified by the parent advocate were in some regard inappropriate for the
Mother’s needs or situation. And, with regard to housing, it is undisputed that Ms.
Aderibigbe helped the Mother obtain temporary housing through the Virginia
Williams Center.10 In short, this is not, as the Mother contends, a case in which the
agency merely stood aside and assumed that other agencies were assisting the
Mother.
The Mother’s brief further faults Ms. Aderibigbe for not making a referral
for the Mother to engage in family therapy, which the social worker testified was
needed for reunification. However, Ms. Aderibigbe testified that D.M.’s play
therapist, who was “open to working with the Mom[,] too,” had indicated that a
prerequisite to family therapy was individual therapy for the Mother, since it was
“key for [the Mother] to be mentally stable herself” in order to begin engaging in
family therapy.11 Ms. Aderibigbe told the court that although she repeatedly (“at
10
Ms. Aderibigbe testified without contradiction that she three times drove
the Mother to the Virginia Williams Center and assisted the Mother with
paperwork there, actions that ultimately led to the Mother’s finding temporary
housing.
11
Ms. Aderibigbe explained that the Mother’s “mental health instability
was of major concern in her ability to maintain her mental health so that she can
protect her children.”
22
least eight to 10 times”) spoke with the Mother about the importance of
participating in the recommended mental health services, the Mother expressed
that she was not engaging in therapy because “she didn’t need it” and “there was
no need for her to continue services.” As to individual therapy, the Mother said
that she had “been there, done that.”
With regard to the individual-therapy requirement, we note that Ms.
Gittinger testified that she repeatedly reminded the Mother that she needed to “find
stable, safe and appropriate housing, . . . complete parenting classes, . . . complete
a mental health evaluation and comply with any recommendations that were made
therein, and . . . participate in and complete individual therapy.”12 (emphasis
added). Also, the magistrate judge found that the Mother’s psychological
evaluation recommended that the Mother participate in individual therapy and
parenting skills classes.13 The Mother has not disputed that she was required to
12
Ms. Gittinger testified that she stressed these requirements to the Mother
both in court and either immediately before or after each visit with the children that
Ms. Gittinger supervised (thus, approximately nine times over the span of Ms.
Gittinger’s involvement with the case).
13
The Mother completed a psychiatric evaluation as well on March 23,
2016. The psychiatric evaluation does not specifically mention individual therapy
as one of the recommended services, but does recommend “family therapy with her
children,” anger management classes, and parent counseling.
23
engage in individual therapy as a step toward reunification; indeed, Mr. Ngole
testified that it was the Mother’s counsel who informed him that “the [c]ourt [was]
requir[ing] [the Mother] to do individual therapy.”
We conclude that the record evidence supports the magistrate judge’s
finding that the agency expended reasonable efforts to help the Mother ameliorate
the conditions that led to the children being adjudicated neglected. As other courts
have reasoned, the reasonable efforts standard does not “burden the agency with
the additional responsibility of holding the hand of a recalcitrant parent,” In re
Rosalie H., 889 A.2d 199, 208 (R.I. 2006) (internal quotation marks omitted), and
when a parent has refused to cooperate with the child welfare agency in its efforts
to achieve reunification, that refusal to cooperate can be a consideration in support
of a finding of reasonable efforts. See id. at 209.14 We also agree with other courts
14
See also In re Berger, No. 317511, 2014 Mich. App. LEXIS 334, at *7
(Feb. 20, 2014) (holding that where the mother “failed to satisfy her commensurate
responsibility to participate in the services that are offered,” “the trial court did not
clearly err by finding that petitioner made reasonable efforts at reunification”
(internal quotation marks and ellipsis omitted)); Lamar F. v. State, Nos. S-11091
and 1156, 2004 Alas. LEXIS 7, at *19-20 (Jan. 14, 2004) (“[A] parent’s
demonstrated lack of willingness to participate in treatment may be considered in
determining whether the state has taken active efforts [toward reunification].”
(internal quotation marks omitted)); In re Amelia W., 772 A.2d 619, 621-22 (Conn.
App. Ct. 2001) (reasoning that the trial court’s finding that the respondent was
“unwilling to benefit from reunification efforts because he repeatedly told the
worker that there was nothing wrong with him and that he did not need services”
(continued…)
24
that “the issue is not whether there was anything more that [the agency] could have
done, but whether the agency’s case planning and efforts were reasonable and
diligent under the circumstances of this case.” E.g., In re V.B.-S., No. 13AP-478,
2013-Ohio-5448, at *P47 (Ct. App. Dec. 12, 2013) (internal quotation marks and
emphasis omitted). We are satisfied that they were.
C.
The record also amply supports the trial court’s finding that the Mother
“failed to make adequate progress toward satisfying the requirements of the case
plan to achieve the goal of reunification.” To be sure, the Mother did complete a
mental health evaluation; during some months, she appeared for most of the
scheduled visits with the children; and, as the Mother’s brief emphasizes, during
some visits, Ms. Aderibigbe observed positive interactions between the Mother and
the children, including positive interactions between the Mother and D.M., to
whom the Mother had sometimes been inattentive during visits. However, the
record evidence is that in the months before the permanency goal was changed, the
(…continued)
was sufficient to support a conclusion that the agency had satisfied the reasonable
efforts requirement (internal quotation marks omitted)).
25
Mother refused to participate in individual therapy, and (per Mr. Ngole) she did not
“switch from the group therapy to individual therapy” until March 2017, months
after the permanency-goal change.15 And, perhaps most important,16 in the three
months before the October 2016 permanency hearing, the Mother visited the
children only once. Specifically, according to Ms. Aderibigbe’s testimony, while
the Mother had missed a few visits with the children in the period from March
through June 2016, the Mother attended none of the scheduled visits with the
15
Parts of the record are somewhat ambiguous regarding when the Mother
began to receive individual therapy. Mr. Ngole testified that this occurred in
March 2017, but Ms. Aderibigbe recalled speaking to Mr. Ngole in October 2016
in connection with the Mother’s move to shelter housing and testified that her
understanding from that conversation was that the Mother was “getting community
support and individual therapy” from MBI. (Ms. Aderibigbe explained that the
Mother gave her permission to speak with Mr. Ngole at that time because “he was
being helpful in this situation.”) However, the initial question from the Mother’s
counsel that prompted that response was about what services MBI was “offering”
to the Mother, not about what services the Mother was actually receiving. Ms.
Aderibigbe subsequently testified that she did not recall learning that someone was
providing individual therapy to the Mother, and that she was never able to confirm
that the Mother was engaging in individual therapy in the months before the
permanency hearing. The magistrate judge found that the Mother “failed to
participate in individual therapy,” and we accept that factual finding because there
is no “clear lack of evidentiary support” for it. In re C.L.O., 41 A.3d at 510
(internal quotation marks omitted).
16
We say this because the magistrate judge has said that adequate efforts by
the Mother to visit the children is “the minimal expectation of her in order for the
court to change the goal back to reunification,” and we discern from his July 17,
2017, ruling affirming the change in permanency goal that the Mother’s failure to
visit the children consistently was a major reason for the change.
26
children in July or August and visited the children only once in September. This
was despite Ms. Aderibigbe’s efforts to reach the Mother through phone calls and
text messages, reaching out to the mother’s family, and visiting a home where a
few previous supervised visits had taken place. The Mother’s counsel noted at oral
argument that the Mother was pregnant and gave birth sometime during this period
(the record indicates that the child was born in early September 2016). But
pregnancy in itself is not a disability,17 and the Mother provided no evidence at the
Ta.L. hearing that she was disabled or was otherwise prevented from visiting
throughout July and August 2016 and in September 2016, and no evidence about
why she failed to visit the children during those months. She also failed to
maintain contact with the agency to explain her absence.
17
See, e.g., Wadley v. Kiddie Acad. Int’l, Inc., Civ. No. 17-05745, 2018
U.S. Dist. LEXIS 101979, at *11 (E.D. Pa. June 19, 2018) (“Pregnancy alone is
not a disability under the [Americans with Disabilities Act], though complications
arising from pregnancy may constitute disabilities.”); 81 Fed. Reg. 39108, 39134
n.155 (June 5, 2016) (citing EEOC Enforcement Guidance: Pregnancy
Discrimination and Related Issues statement that “[a]lthough pregnancy . . . is
never on its own a disability, some pregnant workers may have impairments
related to their pregnancies that qualify as disabilities”); Hawley v. Blackboard,
Inc., Civ. No. 03-656 (GK), 2005 U.S. Dist. LEXIS 3865, at *30 (D.D.C. Mar. 3,
2005) (“[P]regnancy is not a disability under the [District of Columbia Human
Rights Act].”).
27
In explaining his finding about the Mother’s failure to make adequate
progress, the magistrate judge stated that the Mother’s “behavior during visits
continued to provide agency social workers with concerns regarding her ability to
parent the respondents.” The magistrate judge cited as an example the social
workers’ testimony that the Mother “focused much of her attention during visits on
[J.M.],” “not pay[ing] attention to or try[ing] to engage with [D.M.].” The
reviewing associate judge similarly highlighted the evidence of the Mother’s
“show[ing] a lack of emotional connection.” Ms. Aderibigbe did testify to
observing “a lack of emotional kind of connection” and absence of displays of
affection between the Mother and the children, and Ms. Gittinger testified that the
Mother “focused the majority of her attention on [J.M.]” and “had to be prompted
to engage with” D.M. During cross-examination by the Mother’s counsel,
however, Ms. Aderibigbe acknowledged that her contemporaneous notes
documented that the Mother was “attentive to the children” during an April 21,
2016, visit, during which she braided D.M.’s hair and did not show any anger or
frustration toward the children, and that D.M. was “excited to see her mother that
day.” Ms. Aderibigbe’s notes from a June 23, 2016, supervised visit similarly
documented the social worker’s observation that the Mother was “very attentive to
her children.” We mention this record evidence to say that if the magistrate
judge’s finding about the Mother’s “behavior during visits” were supported solely
28
by the example the magistrate judge cited, we might have some difficulty
upholding the court’s finding. But that is not the case. Ms. Aderibigbe explained
that one of the “biggest” “concerns [she] had with the [M]other” from speaking
with her during a visit was that the Mother “still [was] not acknowledging the
abuse” of the children. We therefore are satisfied that there was a sufficient record
basis for the court to cite the Mother’s behavior during visits as a basis for the
lack-of-adequate-progress finding.
The magistrate judge further found that the Mother “failed to complete anger
management and parenting skills classes as required.” There was record support
for that finding, given the Mother’s failure to provide the social worker with a
certificate showing a date of completion. But even if arguendo the Mother’s
undated certificate was sufficient evidence of her having completed the classes, the
magistrate judge had an ample basis for his conclusion that the Mother otherwise
“failed to engage in recommended services and attend visits with the [children]
consistently.”18
18
The magistrate judge also found that the Mother “failed to participate
in . . . medication management.” Similarly, the reviewing associate judge cited as
one of the bases for upholding the magistrate judge’s ruling the lack of “evidence
that [the Mother] was medication compliant.” We note, however, that while the
Mother’s March 23, 2016, psychiatric evaluation recommended that she participate
in anger management classes, family therapy, and parent counseling, it states that
(continued…)
29
D.
The Mother’s last contention is that the agency “did not adequately explore
maternal relatives as placement options for the [children]” or otherwise adequately
“explore kinship placement options.” We are satisfied, however, that the record
supports the magistrate judge’s contrary finding. Ms. Aderibigbe testified that the
agency had identified, was working with, and had made housing referrals to the
maternal aunt who had expressed her willingness to be a permanency provider to
the children, but who did not have a large enough home to accommodate both the
children and the children’s three older siblings for whom she was already the
permanency provider. The aunt had not found appropriate housing before the goal
change, but the record shows that she “continued to express her intent to provide
permanency” until early January 2017. Given the magistrate judge’s unchallenged
finding that the Mother did not provide the agency information about any other
(…continued)
“[s]ince [the Mother] did not . . . exhibit sufficient symptoms of any emotional
disorder for which medication is indicated, none is being recommended at this
time.” In addition, an October 7, 2016, report from the children’s GAL advised the
court that the Mother had not been taking medication due to her pregnancy. We
thus do not rely on medication compliance vel non as a basis for upholding the
permanency-goal change.
30
maternal relatives who might be willing to care for the children, and given the
agency’s initial expectation of placing the children with the aunt, we cannot say
that the agency’s failure to identify other kinship placement options before the
magistrate judge changed the permanency goal rendered the agency’s efforts
inadequate.19
**
For all the foregoing reasons, we discern no basis for disturbing the
judgment of the Superior Court affirming the magistrate judge’s post-Ta.L.-hearing
ruling retaining, as the children’s permanency goal, the sole goal of adoption set by
the court in October 2016. Wherefore the judgment of the Superior Court is
Affirmed.
19
The post-Ta.L. hearing shows that by January 2017, two additional family
members (another maternal aunt and the children’s maternal grandmother) had
been identified as potential permanency options and were being assessed for
appropriateness. The trial court record also shows that one of them filed, but later
withdrew, a petition for adoption of the children.