District of Columbia
Court of Appeals
No. 14-FS-1310 MAR 17 2016
IN RE: PETITION OF G.A.P.;
R.S.,
Appellant.
ADA-200-13
On Appeal from the Superior Court
of the District of Columbia
BEFORE: BLACKBURNE-RIGSBY and THOMPSON, Associate Judges; and FERREN,
Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and for the reasons set forth in
the opinion filed this date, it is now hereby
ORDERED and ADJUDGED that the judgment of the trial court is
affirmed.
For the Court:
Dated: March 17, 2016.
Opinion by Senior Judge John M. Ferren.
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.
DISTRICT OF COLUMBIA COURT OF APPEALS
3/17/16
No. 14-FS-1310
IN RE PETITION OF G.A.P.;
R.S., APPELLANT.
Appeal from the Superior Court of the
District of Columbia
(ADA-200-13)
(Hon. Janet Albert, Magistrate Judge)
(Hon. Hiram E. Puig-Lugo, Reviewing Judge)
(Argued January 13, 2016 Decided March 17, 2016)
Lisa Orlow for appellant.
Joseph L. Meadows, with whom Daniel Forman and Jonathan M. Krell,
were on the brief, for appellees G.A.P. and Guardian Ad Litem.
Karl A. Racine, Attorney General for the District of Columbia, with whom
Todd S. Kim, Solicitor General, Loren L. Alikhan, Deputy Solicitor General, and
Jennifer V. Hancock, Assistant Attorney General Office of the Solicitor General,
for the District of Columbia, filed a statement in lieu of brief.
Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and
FERREN, Senior Judge.
FERREN, Senior Judge: Following a bench trial, the magistrate judge found
the minor child, J.P., suitable for adoption by appellee, G.A.P., after waiving the
required consent of J.P.’s biological parents. An associate judge reviewed the
2
magistrate judge’s order for “errors of law, abuse of discretion, or clear lack of
evidentiary support” and affirmed.1 Appellant R.S., J.P.’s biological mother,
appeals the order terminating her parental rights and granting G.A.P.’s adoption of
J.P. For the reasons set forth below, we affirm.
I.
In January 2011, when J.P. was only a few months old, R.S. left him in the
care of an acquaintance. While there, J.P. suffered severe burns to his posterior
upper extremities, back, and gluteal regions. J.P. was airlifted to Shriners Hospital
for Children in Boston to receive intensive treatment. Immediately after returning
from Shriners, J.P. was placed in foster care by the Child and Family Services
Agency (CFSA), and the District of Columbia filed a petition alleging that J.P. was
a neglected child. On March 17, 2011, R.S. stipulated that she had not provided
J.P. with proper care. The court found J.P. to be a neglected child pursuant to D.C.
Code § 16-2301(9)(A)(ii) (2012 Repl.).
1
In re C.L.O., 41 A.3d 502, 510 (D.C. 2012). In this court’s review of a
trial court order reviewing a magistrate judge’s ruling, we interchangeably refer to
the Superior Court judge who reviews the magistrate judge as the “reviewing
judge,” the “associate judge,” or the “trial judge” (or “trial court”).
3
At a disposition hearing on March 31, 2011, the court set the goal of
reunification of J.P. with R.S., and CFSA offered services to R.S. to achieve that
end. R.S. has been diagnosed with bipolar disorder for which she requires
medication. She also has a history of domestic violence with both her prior
husband (J.P.’s father) and her current husband. In addition, R.S. has been
diagnosed with cannabis dependence. At a review of the disposition order on July
7, 2011, the court ordered R.S. to continue to take her medication, attend domestic
violence counseling, and follow through with individual therapy.
At a permanency hearing held on March 28, 2012, the court changed the
goal from reunification to guardianship because R.S. had not made sufficient
progress in therapy, substance abuse treatment, and domestic violence counseling.
Of particular note, R.S. had “fail[ed] to take medication consistently or participate
in therapy” for her bipolar disorder, asserting that she did not have an illness. The
court had also ordered R.S. to participate in weekly drug testing, which she failed
to attend on 26 occasions. R.S. had also tested positive for marijuana at least 18
times, and on four occasions R.S. attempted to conceal her drug use through “water
loading.”
4
In August 2013, CFSA placed J.P. in foster care with appellee, G.A.P., who
filed for adoption on October 15, 2013. On November 12, 2013, seeking to update
her 2012 psychological assessment, R.S. filed “Mother’s Ex Parte Motion For An
Independent Evaluation to Assess Mother’s Parenting Ability.” A magistrate judge
denied the motion in chambers on January 31, 2014, because a motion for relief ex
parte was “inappropriate.” R.S. renewed the motion on February 18, 2014, and
served all parties two days later. It was denied on the merits, without explanation,
on February 26, 2014.
In the meantime, on November 18, 2013, the magistrate judge had changed
the permanency goal from guardianship to adoption over the objection of R.S. The
trial on G.A.P.’s petition to adopt J.P. took place intermittently the following
spring from early March to late May of 2014. In her opinion of June 30, 2014, the
magistrate judge found clear and convincing evidence that R.S. was withholding
consent to the adoption contrary to J.P.’s best interests and accordingly ruled that
“the consent of the biological parents will be waived.”2 The judge based her
conclusion on findings that R.S. could not provide a stable home because of her
2
The magistrate judge waived the consent of J.P.’s father, S.S., based on
her finding of “clear and convincing evidence that [S.S.] abandoned [J.P.] and
voluntarily failed to contribute to his support” for the six months preceding the
date of the filing of the adoption petition. S.S. filed a statement in lieu of a brief in
which he chose to make no representations regarding this appeal.
5
failure to refrain from substance abuse, the presence of domestic violence, her
untreated mental illness, and her failure to engage with support services provided
by CFSA. The judge then concluded that J.P. was “clearly fit to be adopted,” that
adoption was “in the best interest of” J.P., and that G.A.P. was “a suitable
caretaker.” On October 24, 2014, the reviewing judge affirmed the judgment
“grant[ing] [G.A.P.’s] petition for adoption.”
II.
R.S. raises three issues on appeal. First, she argues that the trial court, in
waiving her consent to the adoption, did not consider the “parental presumption” of
fitness in her favor. Second, she challenges the trial court’s decision to deny her
request for an updated, independent mental health evaluation. Third, she argues
that her use of marijuana, which to some extent has been legalized in the District of
Columbia, is not “drug related activity” within the meaning of D.C. Code § 16-
2353(b)(v) and, therefore, should not have been considered a factor in determining
whether her parental rights should be terminated and her consent to adoption
waived. (R.S. did not question G.A.P.’s fitness to adopt J.P.)
6
III.
“The determination of whether a birth parent’s consent to the adoption of a
child has been withheld contrary to the child’s best interest is confided to the trial
court’s sound discretion.”3 After a magistrate judge issues findings, conclusions,
and a final decree of adoption, an associate judge reviews them, if appealed.4 If the
associate judge affirms the decree, this court will take the approved findings as
findings of the trial court and review them for “abuse of discretion or a clear lack
of evidentiary support,” while claimed errors of law are reviewed de novo.5
IV.
As a general rule, a court may not grant a petition for adoption without the
written consent of the child’s living, natural parents.6 However, the trial court may
3
In re C.LO., 41 A.3d at 510 (citing In re D.H., 917 A.2d 112, 117 (D.C.
2007).
4
Id.
5
Id.; accord In re J.J., 111 A.3d 1038, 1043 (D.C. 2015).
6
D.C. Code §§ 16-304 (a), (b)(2)(A); In re C.L.O., 41 A.3d at 510.
7
waive this requirement upon a finding, based on clear and convincing evidence,
that a parent has withheld consent contrary to the best interest of the child.7 The
best interest analysis applies the same factors used in proceedings to terminate
parental rights (TPR) pursuant to D.C. Code § 16-2353(b):8
(1) the child’s need for continuity of care and caretakers
and for timely integration into a stable and permanent
home, taking into account the differences in the
development and the concept of time of children of
different ages;
(2) the physical, mental and emotional health of all
individuals involved to the degree that such affects the
welfare of the child, the decisive consideration being the
physical, mental and emotional needs of the child;
(3) the quality of the interaction and interrelationship of
the child with his or her parent, siblings, relative, and/or
caretakers, including the foster parent;
(4) to the extent feasible, the child’s opinion of his or her
own best interests in the matter; and
(5) evidence that drug-related activity continues to exist
in a child’s home environment after intervention and
services have been provided. . . . Evidence of continued
drug-activity shall be given great weight.
7
Id. at 510-11.
8
In re P.S., 797 A.2d 1219, 1223 (D.C. 2001).
8
In applying these TPR factors, the trial court should “begin[] by recognizing
‘the presumption that the child’s best interest will be served by placing the child
with his natural parent, provided the parent has not been proven unfit.’”9 This
presumption — that the natural parent, presumably fit, should be the child’s lawful
custodian — will then be confirmed or rebutted by the court’s consideration of “the
parent’s intention and ability over time to provide for a child’s wellbeing and meet
the child’s needs[,]10 . . . in a way that does not endanger the child’s welfare.”11 In
our recent decision in S.L.G., we instructed the trial court, when applying this
parental presumption, to test its viability by “determin[ing] expressly whether [the
court’s] findings [based on each relevant factor] suffice either to show an unfitness
on the part of the parent to remain in a parental relationship with the child[,] or to
9
In re C.L.O., 41 A.3d at 511 (quoting In re S.M., 985 A.2d 413, 417 (D.C.
2009)).
10
In re S.L.G., 110 A.3d 1275, 1287 (D.C. 2015).
11
Id. (quoting In re Adoption/Guardianship of Rashawn H., 937 A.2d 177,
191 (Md. 2007)). In S.L.G., we observed: “The same statutory factors that guide
the court’s determination of a child’s best interest in a TPR or contested adoption
proceeding, therefore, also guide the court’s assessment in that proceeding of the
natural parent’s fitness vel non.” We also stressed, however, that parental “fitness”
is not merely a restatement of the “best interests of the child,” as determined by a
TPR or contested adoption proceeding. “Fitness,” rather, is an independent
determination of parental “intention and ability over time,” guided not only by
application of the TPR factors but also by additional considerations, as needed
(with examples given) to resolve the natural parent’s capacity to “care for the
child” and protect the child against “undue risk of harm.” Id.
9
constitute an exceptional circumstance that would make a continuation of the
parental relationship detrimental to the best interest of the child,”12 even though the
parent, as a general matter, could not be found unfit. Moreover, we stressed that
the trial court will not fulfill this responsibility for explicitness through mere
“verbal allowance that the presumption exists,” followed by cursory recitation of
evidence relevant to each factor coupled with “a conclusory, ‘totality-of-the-
circumstances’ determination” purporting to justify the trial court’s waiver of
parental consent.13 In sum, the trial court “must correctly and explicitly
‘incorporate the parental presumption into its analysis.’”14
After saying all that, however, we acknowledged in S.L.G. that “a mere
failure to use the particular terminology of ‘fitness’” is not necessarily “fatal by
itself.”15 We acknowledged that the “omission of an explicit statement that a
12
Id. at 1289 (quoting In re Adoption/Guardianship of Rashawn H., 937
A.2d at 192) (emphasis added). In a brief concurring opinion, Senior Judge
Newman wrote: “While I join the court’s opinion, I write separately to state that
my fertile imagination is not able to postulate a realistic factual situation where a
‘fit’ parent can be properly deprived of parental rights based on the ‘best interest of
the child.’ However, on the premise that virtually anything is ‘possible,’ I join.”
13
Id.
14
Id. (quoting In re D.S., 88 A.3d 678, 697 (D.C. 2012)).
15
Id.
10
natural parent is ‘unfit’ may be of no moment if there are equivalent findings,
supported by the evidence, that the parent lacks the capacity or motivation to meet
the child’s needs or protect the child from harm.”16 In the present case, apparently
recognizing that the trial court did not explicitly employ “fitness” terminology,
appellee G.A.P. stresses that the trial court relied on “equivalent findings” that
satisfy the explicitness requirement. R.S., however, has not challenged the trial
court’s waiver of her consent to adoption on the ground that the court’s findings
lack the required equivalency. Nonetheless, she squarely challenges the
termination of her parental rights through a court-ordered waiver of her statutory
right to consent to adoption of J.P. And, she has questioned certain findings to a
point that we must, in the end, judge her appeal in the light of S.L.G.’s strict
standard.
V.
A.
R.S. argues that the trial court erred in terminating her parental right to
custody of J.P., without applying the “parental presumption” of fitness. To the
16
Id. (emphasis added); accord In re J.J., 111 A.3d at 1045 (affirming trial
court’s waiver of natural parent’s consent to adoption based on “equivalent
findings” that parent was unfit).
11
contrary, the magistrate judge, whose findings and conclusions were confirmed by
the reviewing judge, acknowledged in the first sentence of her Conclusions of Law
“the presumption . . . that a child’s [best] interests will be served by being with his
or her [natural] parent.”17 In applying the presumption, however, the magistrate
judge (ruling before our decision in S.L.G.) did not “expressly” determine whether
R.S. was — or was not — “fit” to resume custody of J.P. To justify termination of
R.S.’s parental rights, therefore, the trial court’s findings must be “equivalent” to
findings that would support a conclusion of law, based on statutory TPR criteria,
that R.S. was not fit to retain J.P. as her son.
The magistrate judge issued 97 detailed findings of fact, followed by 10½
pages with comprehensive conclusions of law, applying TPR factors (1), (2), (3)
and (5). (Factor (4) was irrelevant given J.P.’s young age.) On review, the
associate judge concluded that “the [magistrate judge] did not abuse [her]
17
The court cited In re S.G., 581 A.2d 771, 785 (D.C. 1990). Counsel for
G.A.P. argues that because R.S. “never raised” the parental presumption at trial,
that issue “is not properly before” this court, citing In re H.B., 855 A.2d 1091,
1096 (D.C. 2004). The magistrate judge, however, recognized that the parental
presumption is inherent in the case and addressed it accordingly.
12
discretion when [she] found clear and convincing evidence to justify terminating
[R.S.’s] parental rights and granted [G.A.P.’s] petition for adoption.”18
Although R.S. is unable to demonstrate from the record on appeal that the
magistrate judge failed to apply the parental presumption of fitness, she has
challenged on appeal the adequacy of the trial court’s findings, approved by the
reviewing judge, in two (and only two) respects: (1) the court’s failure to justify
the mother’s continuing custody of J.P.’s brother, Ja.S., but not J.P., and (2) the
court’s findings supporting the conclusion that R.S. had “a history of and
continuous use of Marijuana.” But for these two alleged errors, therefore, R.S.
does not dispute that the trial court’s findings are “equivalent” to the level of
“express” findings required (by S.L.G.) to demonstrate, by clear and convincing
evidence, that R.S. is no longer “fit” to retain parental custody of J.P.19
18
For the second issue raised by R.S., see supra Part II. — an issue not
addressed directly to particular findings of fact — the reviewing judge concluded
that there was “no basis to reverse the [magistrate judge’s] decision based on the
absence of any additional mental health evaluation.” See infra Part VI.
19
Absent a challenge, we need not address the trial court’s other findings.
Having concluded that TPR factor (4) (“the child’s opinion of his or her own best
interests”) is inapplicable because of J.P.’s young age, and concluding below that
factor (5) (evidence of “drug related activity”) was thoroughly evaluated and cuts
very much against R.S.’s continued parental custody of J.P., we briefly add for the
record our reasons why the trial court findings and conclusions as to TPR factors
(1), (2), and (3), constitute equivalent findings of unfitness as required by S.L.G.,
(continued . . .)
13
B.
As to the first contention, the fact that Ja.S. has not been removed from
R.S.’s custody, despite CFSA oversight, does not necessarily support a finding that
R.S. is fit to parent J.P. (or Ja.S. for that matter). In fact, R.S. admits in her brief
__________________________________
(. . . continued)
and similarly support, with clear and convincing evidence, the trial court’s decision
to waive R.S.’s parental consent to G.A.P.’s adoption of J.P.:
(1) (“child’s need for continuity of care and caretakers and for timely
integration into a stable and permanent home”) (e.g., J.P was “removed from his
mother’s care when he was six-months old. He is now four years old. . . . [R.S.]
has not demonstrated an ability to create a safe and stable living environment for
[J.P.] . . . . [R.S.] failed to maintain visitation under consistently safe
conditions. . . . [R.S.] failed to address her own mental health issues . . . . [R.S.]
never demonstrated an understanding of her need to participate in services; . . . .
[J.P.] has lived with [G.A.P.] continuously and without interruption since August
2013 and has thrived in his care”.).
(2) (“physical, mental, and emotional health of all individuals involved”)
(e.g., “[R.S.] has significant mental and emotional issues that she has not fully
addressed. . . . [R.S.] has been diagnosed with Bipolar Disorder by three different,
unrelated medical professionals. [R.S.] does not believe she has a mental illness.
As a result, she has not consistently attended therapy nor has she been compliant
with her medication management as ordered. . . . Dr. King . . . testified that
individuals with unmanaged bipolar disorder suffer from impairment of daily
functioning and often come to the attention of law enforcement”. . . . [G.A.P.] is in
good physical and mental health.).
(3) (“quality of the interaction and interrelationship of the child with his or
her parent, siblings, . . . foster parent”) (e.g., J.P. and R.S. “do not have a parent-
child bond. . . . [R.S.] repeatedly demonstrated that everything in her life took
priority over her relationship with her son”; J.P and G.A.P. “have a loving and
bonded relationship. They spend substantial quality father-child time together.”).
14
that Ja.S. has some problems, given his “school absences and occasional discord in
the home.” This admission is based on the magistrate judge’s findings that Ja.S.
had missed 25 days of school during the year, that R.S. was unresponsive to the
school’s expressed concerns about him, and that Ja.S. had been at the center of an
incident of domestic violence, which showed an “inability [of R.S.] to ensure
Ja.S.’s physical safety.” Furthermore, the magistrate judge found that Ja.S. and
J.P., while amicable toward each other, had “limited interaction.” In short, the trial
court’s findings raised serious questions about the care received by Ja.S. from his
mother and discounted J.P.’s relationship with his brother — a situation that cuts
against R.S.’s argument that her custody of Ja.S. supports her fitness to parent J.P.
C.
Now to marijuana. The fifth TPR factor, “evidence that drug-related
activity . . . exist[s] in a child’s home environment,” shall be given “great
weight.”20 According to R.S., the trial court erred in “conclud[ing] that drug-
related activity exists in the child’s home.” R.S. stresses that there was no
evidence that she “was under the influence of any substance while supervising her
children.” The trial court essentially found otherwise. The court had ordered R.S.
20
D.C. Code § 16-2353(b)(5).
15
“to submit to weekly drug tests,” but she “failed to show up for [them] at least 26
times since [J.P.] was removed from her care.” Moreover, R.S. “tested positive for
marijuana at least 18 times since [J.P.] has been in foster care,” and drug tests
showed “water loads” on occasion that suggested R.S. had “tried to defeat the drug
testing system to conceal her drug use.”21
R.S. does not contest these particular findings, and thus the evidence is
strong that she deliberately ignored court-ordered abstinence from drug use as a
condition of her continued custody of J.P. The fact that marijuana may not be a
“hard” drug (as R.S. put it) in comparison with cocaine or heroin, for example, is
beside the point; she does not dispute that she was under court drug-testing orders
intended to interdict all drug-related activity. For that reason as well, the fact that
the District of Columbia had come to legalize recreational use of marijuana under
specified circumstances22 is also beside the point. And in any event, aside from
21
Although there was no explicit finding that R.S. was “under the
influence” while supervising her children, Dr. Craig King, the District’s expert
witness in the field of clinical psychology, testified that R.S. was “cannabis
dependent.” See also In re K.L., No. 12-13-00334-CV, 2014 Tex. App. LEXIS
1781, *7 (Tex. App. Feb. 19, 2014) (“A fact finder may reasonably infer from a
parent’s repeated refusals to drug test that the parent was using drugs.”).
22
See D.C. Code § 48-904.01(a) (2015 Supp.) (implementing Ballot
Initiative 71, which legalizes, for persons 21 years of age or older, possession, use,
(continued . . .)
16
asserting that marijuana is not a “hard” drug, R.S. does not explain how her
particular use of that substance would fall within protection of the marijuana
statute she cites.23 Nor does she address the fact that the marijuana legislation
became effective after the magistrate and reviewing judges had ruled.24 Her
marijuana argument accordingly fails.
VI.
As noted earlier, R.S. raised a second issue before the reviewing judge (who
rejected it),25 and she renews that alleged error here: the magistrate judge’s refusal
__________________________________
(. . . continued)
purchase, or transport of up to two ounces of marijuana; transfer (without
remuneration) of one ounce or less of marijuana; and possession or growth of no
more than six marijuana plants at one’s principal residence).
23
See id.
24
After conclusion of the adoption proceeding, the magistrate judge issued
her written Findings and Conclusions on June 30, 2014, followed by the reviewing
judge’s Order affirming the adoption on October 24, 2014. The statute legalizing
limited use of marijuana became effective on February 26, 2015. See “Legislative
History of Law 20-153,” D.C. Code § 48-904.01(a) (June 2015 Cumulative Supp.
at 9).
25
See supra note 17.
17
to grant R.S.’s motion for a second, independent assessment of her psychological
health and parenting ability. We perceive no abuse of trial court discretion.26
As R.S. herself has noted, the trial court has discretion to “order additional
mental examinations to be performed by independent experts upon a showing by
any party that a prior examination is inadequate.”27 In our view, R.S. fails to
demonstrate the inadequacy of her psychological assessment by Dr. Craig King,
who not only had provided a written assessment on January 21, 2012, but also
testified at trial on March 5, 2014, subject to cross-examination by counsel for R.S.
R.S. justifies her contention largely because Dr. King’s evaluation had
occurred over two years before trial of the adoption petition. That rationale, in
itself, is insufficient to demonstrate its inadequacy. The only substantive argument
26
In her opening brief on appeal, R.S. also claims a violation of
constitutional due process, citing Supreme Court cases such as Troxel v. Granville,
530 U.S. 57, 65 (2000) (plurality opinion), which noted that the right of parents to
raise their children “is perhaps the oldest of the fundamental liberty interests
recognized by this Court,” and Santosky v. Kramer, 455 U.S. 745, 754 (1982),
which recognized that “[w]hen the State moves to destroy weakened familial
bonds, it must provide the parents with fundamentally fair procedures.” R.S.,
however, does not contend that the trial court’s discretionary administration of the
statute at issue here, D.C. Code § 16-2315(e)(3), is not a fundamentally fair
procedure; her complaint is directed, rather, at the content of Dr. Craig King’s
2012 assessment, not the subject of a due process violation.
27
D.C. Code §16-2315(e)(3).
18
in R.S.’s motion was a representation that, because R.S. no longer was living in an
environment of domestic violence and had “made progress in mental health
therapy, specifically, to address her extensive history of being a victim of domestic
violence[,] . . . an updated psychological assessment would show substantial
improvement.” That generalization, however, limited to domestic violence, does
not on its face have much currency, because it does not bear directly on R.S.’s two
most fundamental problems, which the proffer does not address but Dr. King
covers at length: R.S.’s untreated bipolar disorder and her continuing drug abuse.
R.S. proffered nothing to the magistrate judge to indicate that she had taken
meaningful steps to manage her bipolar disorder — evidence that might have
justified the need for an updated psychological assessment. To the contrary, as the
magistrate judge found, and R.S. does not dispute, R.S. had “fail[ed] to take
medication consistently or participate in therapy for her illness because she [did]
not believe that she ha[d] Bipolar Disorder.”28 With regard to substance abuse,
28
R.S. acknowledged on deposition that she was “a depressed person” who
“might need to forever always have someone around to talk to, to consult with, to
make me — you know, help me get through, you know, tough passes in life. . . . I
do not believe I am a bipolar person.” Later, at trial, R.S. testified that she did not
believe she had “mental health issues.” The magistrate judge disagreed, finding
that, including Dr. King, R.S. “ha[d] been diagnosed with or treated for Bipolar
Disorder by three different, unrelated medical professionals.” The magistrate
judge relied on testimony from both R.S. and Dr. King. R.S. acknowledged at trial
(continued . . .)
19
R.S. does not dispute the findings that she failed to attend weekly drug testing on
26 occasions, failed 18 drug tests, and attempted to conceal drug use through
“water loading.” As to these two fundamental psychological issues, therefore,
there was nothing to update; those issues would remain whether R.S. was free from
domestic violence or not. We cannot gainsay the reviewing judge, who concluded
that R.S., in her motion, “ha[d] not proffered any information about [Dr. King’s]
evaluation, the methodology used, or the examiner’s qualification that would
render inadequate the psychological evaluation used at trial.”
The reviewing judge also concluded that R.S., in any event, had “failed to
show how the absence of an additional mental health evaluation might have
prejudiced her.” The judge stressed that R.S. had called her own therapist, Sheila
Douglas, as a fact witness, not as an expert, without proffering how Ms. Douglas
would have been inadequate, through qualifications or otherwise, to question Dr.
Craig’s credentials or rebut his evaluation.
__________________________________
(. . . continued)
that she had been diagnosed with bipolar disorder by Community Corrections in
2010 and by Dr. King during his 2012 evaluation. R.S. also testified that she had
been prescribed medication for bipolar disorder by Dr. Todd Christiansen from
September 2013 to April 2014. Dr. King’s report was based on an interview with
R.S. as well as a review of 18 documents, at least seven of which pertain to R.S.’s
mental health, including five documents from Community Corrections.
20
In her motions before the magistrate judge for an Independent Evaluation to
Assess Mother’s Parenting Ability, counsel explained why R.S.’s personal
therapist would not be called to supply the required expertise to challenge Dr.
King. That therapist, stressed counsel, could not have been used because of R.S.’s
desire not to have “her current therapist . . . deposed by Petitioner[,] in order to
maintain the confidential relationship with her therapist.” In her submissions on
appeal, however, R.S. did not incorporate that point when alleging that the trial
court erred in failing to appoint a second, independent psychological assessment;
that is to say, she does not quarrel with the reviewing judge’s limitation of the
point to evaluating prejudice, not antecedent error. But even if we were to
characterize it as a claim of error, we would find no merit to it, and, absent error,
no prejudice requiring reversal.29 As noted above, R.S. proffered only a reduced-
domestic-violence rationale to support her motion for a second psychological
assessment — a rationale too weak, indeed ostensibly irrelevant, to show that Dr.
King’s evaluation has become “inadequate,”30 given the ongoing failure of R.S. to
address the bipolar and substance abuse problems that Dr. King confirmed.
29
See Johnson v. United States, 398 A.2d 354, 365-66 (D.C. 1979).
30
See supra note 25.
21
If R.S. had either proffered that her personal therapist was unqualified to
provide the assessment, or proffered that her therapist was qualified but
unavailable to provide specified, relevant testimony, then the trial court would
have had to determine whether to appoint a second expert, or to leave R.S. with the
decision whether her therapist should testify as an expert as well as fact witness.
As matters stand, however, R.S. did not force the issue, and thus we can discern no
error and resulting prejudice — no abuse of discretion — in the court’s refusal to
appoint a second, independent expert for R.S.
*****
Our inquiry, therefore, is at an end. For the reasons set forth above, the
judgment of the trial court is affirmed.
So ordered.
IN RE: PETITION OF G.A.P.R.S.,Appellant.
Court: District of Columbia Court of Appeals
Date filed: 2016-03-17
Citations: 133 A.3d 994
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