In re Petition of J.O. & P.O., N.B. & Ki.B.

Notice: This opinion is subject to formal revision before publication in the
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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 16-FS-164 & 16-FS-172
01/11/2018
IN RE PETITION OF J.O. & P.O.,

N.B. & KI.B., APPELLANTS.

Appeals from the Superior Court of the
District of Columbia
(ADA-116-14)

(Hon. Noel T. Johnson, Magistrate Judge)
(Hon. Craig Iscoe, Reviewing Judge)

(Argued October 18, 2016 Decided January 11, 2018)

Carla S. Rappaport for appellant N.B.

Leslie J. Susskind for appellant Ki.B.

Patricia M. Spicer for appellees J.O. and P.O.

Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General at the time the brief was filed, Loren L. AliKhan, Deputy
Solicitor General, and Rhondalyn Primes Okoroma, Assistant Attorney General,
filed a statement in lieu of brief in support of appellees.

Charles Feezor, guardian ad litem, filed a statement in lieu of brief.

Before FISHER and THOMPSON, Associate Judges, and RUIZ, Senior Judge.

RUIZ, Senior Judge: This appeal concerns the petition of appellees J.O. and

P.O. to adopt K.B., which was granted on June 15, 2015. Appellants N.B. and
 2

Ki.B. (Mr. B. and Ms. B.), who are the child‟s natural parents, separately appeal

the adoption. Mr. B. challenges the waiver of his consent to the adoption, and Ms.

B. the denial of her motion to revoke her consent to the adoption. We conclude

that the trial court‟s determination that Mr. B. is an unfit parent and that he

withheld his consent contrary to the best interests of the child was not an abuse of

discretion. We also conclude that the finding that Ms. B.‟s consent was voluntary

is supported by the record. Therefore, we affirm the grant of the O.‟s adoption

petition.

I.

K.B. was born on October 23, 2011. When he was ten months old, K.B. was

removed from appellants‟ care by the Child and Family Services Agency following

Ms. B.‟s arrest for possession of marijuana. He was placed with appellees as foster

parents the same day. The government alleged that K.B. was a neglected child

within the meaning of D.C. Code § 16-2301 (9)(A)(iii), and appellants stipulated to

his neglect in November 2012.1

1
The stipulation of neglect was based on the fact that both parents were
incarcerated at the time, for possession of marijuana, and were, therefore,
unavailable to care for K.B.
 3

Initially, K.B.‟s permanency goal was reunification with his parents, and the

court ordered parenting classes and drug-testing services for appellants. However,

citing concerns about appellants‟ continued substance abuse and failure to

consistently visit K.B., the court changed the goal to adoption by the appellees on

January 7, 2014. On June 24, 2015, the appellees filed a petition for adoption.

A. Trial Court Proceedings as to Mr. B.

The trial court heard a great deal of testimony about Mr. B.‟s history of

mental illness and substance abuse. Dr. Seth King, a psychologist who completed

evaluations of both appellants in November 2012 (two years prior to trial), testified

about his evaluation of Mr. B. Dr. King diagnosed Mr. B. with schizophrenia,

major depressive disorder, post-traumatic stress disorder, and marijuana and

nicotine dependence. He based these diagnoses on Mr. B.‟s reports, mental health

records, and symptoms observed during the evaluation. Dr. King testified that Mr.

B. rated a 40 (on a zero to 100 scale) on the Global Assessment of Functioning,

which “indicat[ed] that he was having some symptoms of mental health problems,

difficulties, which affected his stability and his functioning.” Dr. King expressed

concern that Mr. B.‟s mental health symptoms and use of marijuana “would

interfere with a person‟s ability to focus effectively, consistently, to be able to care
 4

for a child‟s needs.” He also opined that ongoing treatment “would be a step in the

right direction,” but that he would still have concerns about Mr. B.‟s long-term

parenting ability even with treatment. Dr. King noted that he was troubled by Mr.

B.‟s reliance on Ms. B. as part of his support system in parenting K.B., since he

felt that, in light of Ms. B.‟s own issues with mental illness and substance abuse,

this meant there would be times when there was no stable adult in the household.

Amanda Giordano, Mr. B.‟s case manager at Community Connections since

July 2014, testified about Mr. B.‟s ongoing mental health treatment. Ms. Giordano

testified that Mr. B., who had been diagnosed through Community Connections

with schizoaffective disorder and poly substance dependence, received the most

intensive level of services available. He was a “model consumer” of treatment

who regularly attended his appointments and was medication-compliant. She

described his symptoms as “a tendency to be tangential, a little disorganized in his

thought process and speech,” but said that those symptoms had decreased during

the time she had been working with Mr. B. However, she also testified that she

had become concerned about Mr. B.‟s possible substance use after noticing that he

seemed disoriented during meetings.
 5

Mr. B. testified that he had been in treatment for schizophrenia for twenty

years. He acknowledged that he had used marijuana in accordance with his

Rastafarian religion, but testified that he stopped using it when the court ordered

him to in connection with the neglect proceeding in 2012 and had been clean for

two years. Mr. B. testified that he had instead been smoking K2, a form of

synthetic marijuana. The records of Mr. B.‟s court-ordered drug testing (between

August 28, 2012, and November 18, 2014) indicated that he had tested positive

twice, had tested negative nineteen times, and had missed sixteen tests; the lab did

not test for synthetic marijuana. 2

The court also heard testimony about Mr. B.‟s relationship with K.B. India

Ford, the ongoing social worker in K.B.‟s neglect case, testified that since K.B.

was placed in foster care in August 2012, Mr. B. initially engaged in court-ordered

weekly visitation, but failed to appear for his visits between September and

December 2013, and again between March and July 2014. 3 She also testified that,

when she asked Mr. B. in November 2013 why he was not visiting, he said that he

“thought that [the Child and Family Services Agency] had taken [K.B.] away, like

2
Mr. B. tested positive for marijuana on November 20, 2012, and for
amphetamines on December 19, 2013.
3
Ms. Ford testified that Ms. B. told her that the gap in visitation in 2014
was due to appellants‟ incarceration.
 6

it was just a done deal at that point.” He said he was “sad” about K.B. Ms. Ford

reassured him that he could “absolutely have visitation.” Mr. B. visited K.B. after

December 2013 until his incarceration in March 2014.4 He did visit consistently

once he resumed visitation again after July 2014, and did not miss any visits.

During his visits, Mr. B. was energetic and engaged with K.B., and K.B. was

typically happy to spend time with his father. K.B. called Ms. B. “mommy, or

mama,” and Mr. B. “daddy, or dad.” However, Ms. Ford testified that in the two

months before her trial testimony, K.B. had cried until he was put back in the car to

leave the visit.

The magistrate judge found that Mr. B. was not a fit parent. The judge cited

Mr. B.‟s mental health diagnoses and Dr. King‟s concerns about Mr. B.‟s reliance

on Ms. B., who also has mental health and drug issues, and found that “absent a

support system involving a constant, appropriate adult presence, the father‟s

mental health issues render him presently unable to safely care for [K.B.].” He

also cited Mr. B.‟s “refusal to abstain from mind-altering substances” and found

4
Ms. B. was in jail at the time of Ms. Ford‟s conversation with Mr. B. in
November 2013. Ms. Ford testified that Mr. B. did not resume visitation
immediately after this conversation, but rather once Ms. B. was released from jail
after December 2013.
 7

that Mr. B. had not “sufficiently addressed his substance abuse issues.” The

magistrate judge concluded as follows:

The father‟s mental health and substance abuse issues,
combined with his lapses in visitation and his inability to
articulate a plan for resuming care of the respondent
make plain that he is not presently capable of caring for
the child. Furthermore, the evidence established that
there is very little chance that he will become ready to do
so in the foreseeable future. The father has been engaged
with services designed to address his issues for an
extended period of time now, and has not made sufficient
progress. As such, the Court finds by clear and
convincing evidence that the father is not a fit parent.

The magistrate judge also found that, weighing the statutory factors to be

considered for termination of parental rights, Mr. B. had withheld his consent to

the adoption contrary to K.B.‟s best interests.5 As such, he ruled that Mr. B.‟s

consent should be waived pursuant to D.C. Code § 16-304 (e), and that adoption by

the appellees is in K.B.‟s best interests. The associate judge affirmed the trial

court‟s finding of parental unfitness and determination to waive the father‟s

consent, and Mr. B. filed this appeal.

5
These factors are considered infra.
 8

B. Trial Court Proceedings as to Ms. B.

Similar testimony was presented about Ms. B.‟s ability to care for K.B. Dr.

King, who evaluated Ms. B. in 2012, and Dr. David Ault (Ms. B.‟s treating

psychologist at Green Door) both testified that Ms. B. had been diagnosed with

major depressive disorder; post-traumatic stress disorder; and alcohol, cannabis,

and tobacco use disorders. Dr. Ault also testified about Ms. B.‟s alcohol

consumption, including the fact that her alcoholism was not considered to be in

remission because she had not been alcohol-free for the past twelve months. He

also reported that Ms. B. had had alcohol-induced seizures, which were being

treated with medication, and that she had suffered from occasional memory lapses,

auditory hallucinations, and unexplained anger attacks. Ms. Ford, the social

worker in the neglect case, testified about Ms. B.‟s relationship with K.B., and

about her decision to recommend supervised visits after Ms. B. relapsed by

drinking, during an overnight unsupervised visit K.B. had with his parents in

August 2013, and passed out and assaulted Mr. B.‟s sister.

The foregoing testimony took place during the first three days of trial in

November 2014. When trial resumed on January 12, 2015, the proceeding opened

with P.O.‟s testimony. P.O. testified about her family‟s relationship with K.B. and
 9

about his health and developmental delays. She testified that K.B. had exhibited

some delays in his physical development, including not walking until he was

eighteen months old, but that he was now “doing fine in that area.” She also stated

that K.B. had some “language delays, and maybe some cognitive delays.” For

example, at three years old, K.B. should have been able to speak in complete

sentences, but he only used one word sentences, “more like . . . where a child

would be functioning if they were a year and a half.” P.O. previously worked as a

school psychologist and was a special education teacher for fifteen years. She

testified that she was “working with [K.B.] at home every day” to address his

delays, and that she was considering the possibility of speech and language therapy

in the future. P.O. also testified that, if the adoption petition were granted, she

would want K.B. to maintain some contact with appellants, because she wanted

him “to know who [his] biological parents are” and “to have a good healthy

relationship with them.” Appellees have another adopted child, who has

maintained contact with his birth mother since his adoption. After P.O.‟s

testimony was concluded, Ms. B.‟s attorney, Kathryn Graham, informed the court

before the luncheon recess that she hoped to speak with Ms. B. as soon as she was

able to return to the courtroom.
 10

When the trial resumed after lunch, Ms. B. asked the court if she could have

a different lawyer, and said that she already knew who she wanted to represent her.

The court denied her request, stating that it would be disruptive “in the middle . . .

of a multi-day trial” to bring in a new lawyer. Ms. B. then asked if Ms. Graham

could “receive assistance from another attorney,” which the court also denied as

“[un]necessary.” Ms. B. gave no further grounds for her request, nor did the trial

judge inquire as to the reason. After Ms. Graham consulted with the trial judge

about the proper procedure, the court asked her to file a motion to withdraw so that

it could be noted on the record.

Ms. Graham and appellees‟ attorney then asked for a ten-minute recess so

that Ms. B. and P.O. could speak with each other off the record. After this recess,

Ms. Graham indicated that the conversation was “really beneficial” and that Ms. B.

“is not prepared to consent [to the adoption] right now, but, is contemplating it.”

Ms. B. took the stand the next day, January 13, 2015. She testified about her

history of substance abuse and the steps she had taken towards sobriety, as well as

about her mental health. Ms. B. testified that she was “a hundred percent

committed” to her sobriety and mental health treatment. She also stated that

having K.B. back was “the most important thing in the world” to her. Ms. B.
 11

admitted that she had recently been incarcerated, and that she was currently on

probation and had at least one criminal charge pending against her at the time. She

also testified about her struggles with relapses, but stated that she had been

alcohol-free for the past eleven months. On cross-examination, Ms. B. was

questioned about her pending criminal charges, and about her alcohol use and the

relapse she had during one of K.B.‟s unsupervised overnight visits.

The court adjourned for the day before Ms. B.‟s testimony was finished, so

she took the stand again on the morning of January 14, 2015. K.B.‟s guardian ad

litem briefly cross-examined Ms. B. regarding her alcohol use while she was

pregnant with K.B. Ms. B. testified that this was a planned pregnancy and that she

had stopped drinking and smoking marijuana as soon as she became aware that she

was pregnant, which occurred “within a month.”6 On redirect examination, Ms. B.

stated that she would ensure K.B.‟s safety with “a stable family support system” if

she were to relapse again. She testified about the positive changes she had made in

her life in order to be better able to parent K.B., including abstaining from

6
The GAL‟s questioning suggested that K.B. had been born premature and
underweight (5.4 pounds), and that Ms. B. had been told it was because of her
alcohol use. Ms. B. denied that she had ever been told that, and stated that if it had
been so, she would not have been allowed to take the baby home. Dr. Aimee
Grace, K.B.‟s pediatrician, testified that in K.B.‟s newborn visit, there was
documentation that K.B.‟s mother had been drinking alcohol until one month into
her pregnancy, when she found out that she was pregnant.
 12

substance use, taking her medication, and having a stable relationship with Mr. B.,

which she described as “a loving committed relationship where we put our

children‟s needs first, and foremost before our own.” Ms. B. concluded her

testimony as follows:

[I am a] hundred percent committed to my sobriety. I
want my sobriety because I want to get better. I want a
better life for myself, for my kids, for my future. I plan
to go back to school. I have a lot of aspirations that will
keep me focused on wanting, and having a better life for
myself, and for my kids.

As soon as Ms. B.‟s testimony was concluded, and before closing arguments

began, Ms. Graham asked the court for a brief recess to consult with her client.

After conferring with Ms. B. for just over one minute, Ms. Graham informed the

court that “at this time my client has indicated that she wishes to consent to the

adoption.” She further indicated that Ms. B. had “reviewed the consent, and we

have talked about it at length, this week, and this morning before court.” The court

was surprised, given the testimony that Ms. B. had just completed, and Ms.

Graham stated, “I‟m telling her this is her opportunity.” Ms. B. then spoke up,

telling the court that she “want[ed] the best for [her] son,” and stating, “If this, I

believe will bring the best to my child‟s life, then, please, would you consider to

me consenting to the adoption.”
 13

After Ms. B. signed the consent form with her attorney, the court engaged in

extensive voir dire of Ms. B. to ensure that her consent to the adoption was

knowing and voluntary. Throughout the court‟s questioning, Ms. B. was plainly

emotional. As the court asked whether Ms. B. understood that she was giving up

her legal parental rights, Ms. B. answered affirmatively, but became so upset that

the court stopped several times to allow her to compose herself and “make sure

[she understood] the seriousness of the action that [she was] taking.”

The court noted that Ms. B. had asked for and been denied new

representation two days before. The magistrate judge asked “whether or not [she

had] had sufficient advice of counsel,” and Ms. B. (who was crying) asked, “Is

there anything I can do? . . . My sweet baby.” The court asked, “Are you sure you

want to consent?” and Ms. B. replied, “Yes.” The court again expressed concern

that she was making an important decision about which she was clearly upset, and

repeated, “Are you taking this action freely and voluntarily?” Ms. B. replied,

“Yes.” The court also repeated, “Have you had the advice of counsel?” and Ms. B.

again replied, “Yes.”
 14

The court then asked Ms. B. if she felt like she was being pressured to

consent. Ms. B. apparently shook her head but gave no verbal response, and then

stated, “I had one relapse during the whole time, that‟s with the baby. It‟s serious.”

The court responded that it was serious, and Ms. B. asked, “With one relapse,

though, Your Honor? . . . Only one relapse, though, is that serious? . . . Do you

know how many people — that don‟t even want their kids still got them[?]” The

court asked once again whether she wished to consent, and Ms. B. again replied,

“Yes.” The court found that Ms. B. was giving consent knowingly and voluntarily,

and with advice of counsel, and it accepted her consent. That same day, Ms. B.

and appellees signed a Post-Adoption Contact Agreement, in which they agreed

that Ms. B. would be “welcome to schedule a supervised visit with [K.B.] . . . at a

minimum two times per year” and that K.B. “should have reasonable telephone

access to [Ms. B.].”

Ms. Graham moved to withdraw as Ms. B.‟s counsel on March 18, 2015.

Ms. B., represented by new counsel, filed a motion for leave to revoke her consent

on April 30, and the court held a hearing on June 5, 2015. At the hearing, Ms. B.

claimed that her consent was not voluntary because she had been incarcerated at

the time, and because Ms. Graham had pressured her into believing that she would

have no chance of seeing K.B. unless she consented and signed the Post-Adoption
 15

Contact Agreement.7 She testified that Ms. Graham had told her that “if you don‟t

sign, your baby, that you‟ll never get to see your son again,” and had told her,

“You should just sign this because you‟ll never get to see your son again if you

don‟t.” Ms. B. also testified that, at the time of her consent in court, she “wasn‟t

feeling too well” and could not remember what the magistrate judge had asked her,

because her “head wasn‟t together at all that day.”

The court found that Ms. B.‟s testimony at the hearing on the motion to

revoke her consent was “inconsistent and self-serving.” The court noted that,

when Ms. B. signed the consent in open court five months earlier, “she repeatedly

affirmed her desire to consent and . . . [took] that action freely and voluntarily.”

The court also found that Ms. B. gave her consent, not as a result of her

incarceration, but “strategically after sitting through the entirety of a four day trial,

in an effort to preserve the possibility of future contact with her son.” The

magistrate judge thus denied her motion for leave to revoke her consent. On

appeal to Superior Court, the associate judge affirmed the magistrate judge‟s

finding that Ms. B. voluntarily consented to the adoption. Ms. B. then filed this

appeal, which was consolidated with Mr. B.‟s appeal.

7
Ms. B. was in custody at the time of the trial, and was escorted to and from
the courtroom by marshals.
 16

II.

This court reviews the trial court‟s decisions on appeal for abuse of

discretion, errors of law, and clear lack of evidentiary support. In re J.J., 111 A.3d

1038, 1043 (D.C. 2015). In reviewing for abuse of discretion, this court considers

“whether the trial court „exercised its discretion within the range of permissible

alternatives, based on all the relevant factors and no improper factor.‟” In re T.J.,

666 A.2d 1, 10 (D.C. 1995) (quoting In re Baby Boy C., 630 A.2d 670, 673 (D.C.

1993)). Legal questions are reviewed de novo, but findings of fact are reviewed

for clear error. See D.C. Code § 17-305 (a). Thus, the decision under review must

provide “substantial reasoning” that is based on correct legal principles and has a

“firm factual foundation in the record.” In re C.L.O., 41 A.3d 502, 510 (D.C.

2012) (quoting In re C.A.B., 4 A.3d 890, 900 (D.C. 2010)).

While procedurally this appeal is from the associate judge‟s order, on

appellate review of the trial court‟s final order we “look to the findings and

conclusions of the fact finder [the magistrate judge] on which that ruling is based.”

Id. Thus, this court considers both the associate and magistrate judges‟ rulings.
 17

A. Mr. B.’s Parental Fitness

In general, an adoption requires the consent of the natural parent. D.C. Code

§ 16-304 (a). Parental consent can be waived, however, but only if the court finds,

first, that the natural parent is “unfit,” see In re Ta.L., 149 A.3d 1060, 1081 (D.C.

2016) (en banc), and, second, that the parent is withholding consent contrary to the

best interests of the child. D.C. Code § 16-304 (e). Placing the child with a natural

parent is presumed to be in the child‟s best interest, “provided the parent has not

been proven unfit.” In re S.L.G., 110 A.3d 1275, 1285 (D.C. 2015) (quoting In re

S.M., 985 A.2d 413, 417 (D.C. 2009)).8 This presumption “reflects and reinforces

the fundamental and constitutionally protected liberty interest that natural parents

have in the care, custody, and management of their children.” Id. at 1286; see also

8
A fit parent is presumed to act in the best interests of the child. Therefore,
where a child has a fit parent, “there will normally be no reason for the State to
inject itself into the private realm of the family to further question the ability of
that parent to make the best decisions concerning the rearing of that parent‟s
children.” Troxel v. Granville, 530 U.S. 57, 68-69 (2000) (quoted in In re S.L.G.,
110 A.3d at 1286 n.23). We have recognized that there might be “truly exceptional
circumstance[s]” where “a continuation of the parental relationship [between a fit
parent and child is nonetheless] detrimental to the best interest of the child.” In re
Ta.L., 149 A.3d at 1083 (quoting In re S.L.G., 110 A.3d at 1289). Such an
exceptional circumstance requires that the trial court be “satisfied by clear and
convincing evidence that reunification of the child with the family would
grievously harm the child . . .” Id.
 18

Santosky v. Kramer, 455 U.S. 745, 753 (1982) (“The fundamental liberty interest

of natural parents in the care, custody, and management of their child does not

evaporate simply because they have not been model parents or have lost temporary

custody of their child to the State.”). In order to determine whether the

presumption that placement with the natural parent is in the child‟s best interest has

been overcome, a court must first decide, by clear and convincing evidence, that

the parent has been proven unfit. See In re Ta.L., 149 A.3d at 1081.

The determination of whether a parent is unfit “is not merely a restatement

of the „best interests of the child‟. . . ; „[f]itness,‟ rather, is an independent

determination of parental „intention and ability over time,‟ . . . to resolve the

natural parent‟s capacity to „care for the child‟ and protect the child against „undue

risk of harm.‟” Id. at 1083 (quoting In re G.A.P., 133 A.3d 994, 998 (D.C. 2016)).

Specifically, the focus is on “whether the parent is, or within a reasonable time will

be, able to take care of the child in a way that does not endanger the child‟s

welfare.” Id. at 1082 (quoting In re S.L.G., 110 A.3d at 1286-87). Factors to be

considered in determining whether a natural parent is unfit include:

[A] failure to maintain contact with, nurture, or support
the child; . . . the inability or unwillingness to make
reasonable efforts to . . . provide a safe and stable home
for the child, or to meet a particular child‟s special needs;
 19

chronic drug or alcohol abuse; and mental health issues
or other impairments that demonstrably interfere with the
parent‟s ability to care for the child or that expose the
child to undue risk of harm.

In re S.L.G.,110 A.3d at 1287. The determination of unfitness is focused on the

parent‟s willingness and ability and because it is a determination separate from the

issue of consent to adoption (or waiver of that consent) should not be made by

directly comparing the natural parent with the adoption petitioners and granting the

adoption “simply because [the petitioners] are „fitter.‟” Id. at 1288 (quoting

Appeal of H.R., 581 A.2d 1141, 1178 (D.C. 1990) (Ferren, J., concurring)).

Mr. B. argues that the magistrate judge impermissibly relied on vague and

outdated information about Mr. B.‟s mental health in determining that he was unfit.

We disagree. It is true that the court‟s order relied significantly on Dr. King‟s

testimony, which was based on an evaluation of Mr. B. that took place two years

before the trial. However, the diagnoses that the court cited from Dr. King‟s

evaluation were corroborated by Mr. B.‟s more recent diagnoses at Community

Connections. The court pointed to Mr. B.‟s diagnoses of “schizophrenia,

undifferentiated type, post-traumatic stress disorder, and major depressive

disorder.” When Mr. B. began receiving services at Community Connections, he

was diagnosed as suffering from schizoaffective disorder with poly substance
 20

abuse. Ms. Giordano, his case manager at Community Connections since July

2014, indicated that this was a current diagnosis. Mr. B. himself testified that his

mental health diagnosis was schizophrenia.

It is well established that the fact that a parent has a mental or other illness

does not make the parent unfit. See, e.g., In re J.G., 831 A.2d 992, 1001 (D.C.

2003) (“a parent‟s poverty, ill health, or lack of education or sophistication, will

not alone constitute grounds for termination of parental rights”); In re M.M.M., 485

A.2d 180, 184 (D.C. 1984) (“The emotional welfare of . . . the natural parent [] is

relevant only „to the degree that such affects the welfare of the child . . .‟” (quoting

D.C. Code § 16-2353 (b)(2))). The question for the court remains the parent‟s

ability to care for the child. Thus, what is relevant is whether the illness

“demonstrably interfere[s]” with the parent‟s child-caring abilities. In re S.L.G.,

110 A.3d at 1287; see In re K.J.L., 434 A.2d 1004, 1006-07 (D.C. 1981); see also

In re K.M., 75 A.3d 224, 231 (D.C. 2013) (in a neglect case, there must be “a

nexus between a parent‟s [] mental incapacity and an inability to provide proper

parental care” (internal citation and quotation marks omitted)).

The magistrate judge found that Mr. B. was “still in need of intensive

ongoing therapy” and would be unable to “focus on and appreciate the needs of a
 21

small child” on his own. In addition to Dr. King‟s testimony, the court heard Ms.

Giordano‟s testimony that Mr. B. was currently receiving “the most intensive level

of services in the community for mental health treatment.” She also testified that

managing his symptoms was “sometimes difficult for him,” and that she was still

working with him on his tendency to be “tangential, a little disorganized.” In fact,

she had noted in September 2014 that Mr. B. experienced “frequent confusion[,]

making accomplishing tasks, such as keeping medication appointments, to be a

problem.”9

Mr. B.‟s proposed support system if K.B. were placed with him was

inadequate. When Dr. King evaluated him, Mr. B. had named Ms. B. as his

“primary support system” in parenting K.B. Dr. King found this to be of concern,

as Ms. B. also had significant mental health and substance abuse issues, and so

there might be times when both parents were having difficulties and there would be

“no stable adult in the household to address the concerns of the child.” Ms. Ford

also testified that, after she became aware of Ms. B.‟s relapse in 2013 and a change

9
This case is therefore distinguishable from In re K.M., where the court
concluded that Dr. King and Dr. Theut provided “largely conditional testimony,”
expressed in “broad and vague terms,” that was too “generalized” to establish that,
even if harm could befall a child from exposure to a mother‟s delusional behavior,
it likely would do so. 75 A.3d at 234. In addition, Dr. King‟s testimony in this
case was confirmed by Mr. B.‟s case worker, Ms. Giordano.
 22

was made to supervised visits, Mr. B. expressed that “he didn‟t think he could

parent K.B. independent of Ms. B.” and that he “felt that he absolutely needed [his

family‟s] support.” His actions confirm his statement as he did not resume

visitation with K.B. until Ms. B. was released from prison. See note 4, supra. At

trial, however, Mr. B. testified that he thought he could be capable of parenting

K.B. by himself if Ms. B. was unable to help. He added that if he needed support

parenting K.B., he would call upon “God . . . I got a brother. I got a sister . . . I‟d

probably talk to one of my aunt[s].” He indicated that his brother was unemployed

and was attending Green Door for mental health treatment. No information was

provided with respect to the other family members‟ capabilities or willingness to

assist in caring for a young child. Thus, except for Mr. B.‟s trial testimony, which

was contradicted by his prior statements and actions, the evidence of record

supported that Mr. B. did not believe that he was capable of safely caring for K.B.

on his own, and he relied on others who, like him, would at times be unable to care

for K.B. because of their own mental health and substance abuse issues. 10

10
The trial court also questioned whether Mr. B. had the intention to care
for K.B. based on his voluntary decision to stop visiting the child “for extended
periods of time” in the fall of 2013 and spring of 2014, during which Ms. B. was
incarcerated.
 23

Finally, Mr. B. has a long history of substance abuse, a factor to be

considered in determining a parent‟s fitness. In re S.L.G., 110 A.3d at 1287. Dr.

King diagnosed him with cannabis dependence based on Mr. B.‟s report that he

had been using marijuana “as long as he could remember” and had progressed to

using it daily. Mr. B. was diagnosed with poly substance dependence through

Community Connections in 2014. Mr. B. testified that he stopped using marijuana

when the court ordered him to in 2012, but other evidence refuted this: he missed

sixteen drug tests and tested positive twice during the 2012-2014 court-ordered

drug testing period. Indeed, his case manager testified that she worried that Mr. B.

was using illegal substances after he appeared disoriented at their meetings. Mr. B.

himself admitted that he had begun using K2, a synthetic form of marijuana, which

would not have shown up on the court‟s drug tests. Dr. King testified that this use

of K2 implied continuing substance abuse that could lead to resuming use of

marijuana.

Based on the evidence at trial, Mr. B. clearly has a history of chronic drug

abuse, as does Ms. B. (who lives in the same home and would be part of Mr. B.‟s

support system), and continues to use mind-altering substances.11 While Mr. B has

11
Both Mr. B. and Ms. B. testified that they were living together in a two-
bedroom apartment.
 24

commendably sought treatment for his mental illness and made some progress

dealing with its symptoms, his condition leaves him confused and disorganized in a

way that interferes with his ability to identify and respond to a child‟s needs, in

addition to his own. Mr. B. expressed doubts that he would be able to parent K.B.

by himself, and relied on Ms. B. to care for the child. For example, although Mr.

B. was consistent in his weekly visits to K.B., he did not visit during the time Ms.

B. was incarcerated. Ms. B.‟s support could not be assured, however, in light of

her personal challenges with mental illness and substance abuse and periods of

incarceration. (She was incarcerated at the time of trial.) Moreover, by the time

the court decided whether Mr. B. had the wherewithal to parent K.B., Ms. B. had

consented to the adoption. The combination of these myriad conditions provides a

firm factual foundation for the court‟s finding that Mr. B. is not “able to care for

[K.B.] in a way that does not endanger the child‟s welfare,” nor was it likely that

he would be able to do so “within a reasonable time.” In re S.L.G., 110 A.3d at

1287. It was therefore not an abuse of discretion for the magistrate judge and the

associate judge to find that Mr. B. is not fit to parent K.B.
 25

B. Waiver of Mr. B.’s Consent

If a court finds, by clear and convincing evidence, that a natural parent is

unfit, the strong presumption that placement with a natural parent is in the child‟s

best interest falls away. See In re Ta.L., 149 A.3d at 1081. A finding that a parent

is not able to care for a child himself does not, however, terminate parental rights.

See In re Adoption of Jayden G., 70 A.3d 276, 301-02 (Md. 2013). Thus, even

without the presumption, the court may not grant adoption over a natural parent‟s

objection unless it finds, by clear and convincing evidence, that the parent is

withholding consent contrary to the best interests of the child. See In re S.L.G.,

110 A.3d at 1285; see also In re T.J., 666 A.2d at 15 (holding that where parent is

unable to care for child due to mental illness, i.e., is unfit, but is competent, trial

court must find, by clear and convincing evidence, that parent‟s choice of fit

adopted parents would be “clearly contrary to child‟s best interest”). In deciding

what is in the child‟s best interests, the court will look to the factors considered in a

termination of parental rights (“TPR”) proceeding, because an adoption over a

natural parent‟s objection is the “functional equivalent” of a termination of parental

rights. In re S.M., 985 A.2d at 416. The relevant statutory factors are:

(1) the child‟s need for continuity of care and caretakers
and for timely integration into a permanent home, taking
 26

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 . . . .

D.C. Code § 16-2353 (b). If the court finds that the parent‟s withholding of

consent is contrary to the child‟s best interests, then the parent‟s consent may be

waived by the court.

The trial court followed this analytical framework. As discussed above, the

trial court first found that Mr. B. was not able to care for K.B. and therefore was

not entitled to the presumption that K.B.‟s best interests would be served by

placement with his natural father. The trial court then considered each of the

relevant TPR factors, and found that they weighed in favor of placing K.B. with

appellees. We perceive no abuse of discretion in the trial court‟s assessment that,

viewed as a whole, the evidence relevant to the TPR factors established, by clear
 27

and convincing evidence, that K.B.‟s best interests were served by placement with

appellees, and that Mr. B.‟s consent to the adoption should be waived.

The first factor is the child‟s need for continuity of care and caretakers and

for timely integration into a stable and permanent home. D.C. Code § 16-2353

(b)(1). At the time of the magistrate judge‟s decision in October 2015, appellees

had been K.B.‟s caretakers for most of his life, since August 25, 2012, when he

was ten months old. During that time, he had developed a close and loving

relationship with appellees and with his foster-siblings. K.B. refers to P.O. as

“mama” and J.O. as “dadda,” and is close with the other two children in appellees‟

home. Appellees have met K.B.‟s needs since he was placed with them, and have

helped him with his developmental delays in communication and gross motor

skills,12 particularly as P.O. has a background in early childhood special education.

Mr. B., on the other hand, has not been a consistent presence in K.B.‟s life, and

although he has demonstrated deep affection for his child, the evidence of his lack

of fitness also indicates that he is not capable of providing a stable home and care

for a young child with K.B.‟s needs. We see no reason to disturb the trial court‟s

determination that this factor weighs in favor of placement with appellees.

12
K.B. is a small but healthy child who has developmental delays, such as
struggling to speak in complete sentences, and some problems with motor skills.
 28

The second factor is the physical, mental and emotional health of all

individuals involved to the degree that such affects the welfare of the child. D.C.

Code § 16-2353 (b)(2). Appellees are in good health in all respects, and as noted

previously, have helped maintain K.B.‟s health and development since he entered

their care. Mr. B. has been diagnosed with serious mental illnesses, including

schizophrenia or schizoaffective disorder, as well as substance dependence, and

still struggles with symptoms of disorganization and disorientation as a result of

these conditions. Mr. B.‟s continuing need to address his own health issues makes

it unlikely that he can adequately take care of K.B.‟s physical, mental, and

emotional needs. The trial court thus properly found that this factor also weighs in

favor of placing K.B. with appellees.

The third factor is the quality of the interaction and interrelationship of the

child with his parents, siblings, and foster parents. D.C. Code § 16-2353 (b)(3).

K.B. has a very affectionate relationship with appellees. He also has a positive

relationship with Mr. B., with whom he was typically happy during visits. Dr.

Susan Theut, a psychiatrist who performed an interactive evaluation of K.B.‟s

relationship with appellees and with appellants, testified that K.B. was clearly

comfortable in both situations and that there was no significant difference between
 29

his interaction with his foster parents and with his natural parents. She reported

that K.B. had a “strong and positive relationship” with both sets of adults. The

trial court found that, despite this expert testimony about the interactive

evaluations, the third factor still favored placement with appellees as serving

K.B.‟s best interests, because they “have been meeting [K.B.‟s] emotional needs

for more than three years.” The trial court also took note of the fact that the

mother had consented to the adoption as being in the child‟s best interest.

Although the evidence relevant to this factor is not as clearly weighted in favor of

adoption as is the evidence related to other factors, it supports the magistrate

judge‟s decision that adoption by appellees is in K.B.‟s best interests.

The fourth factor is the child‟s opinion of his own best interests in the

matter. D.C. Code § 16-2353 (b)(4). K.B. was too young to offer his opinion at

trial. To the extent that his opinion could be ascertained, however, the trial court

noted his close relationship with appellees and that the Guardian Ad Litem

supported his adoption by the petitioners. In addition, there is evidence that K.B.

recently cried during his visits with the natural parents and would not stop crying

until he was returned to the car or brought back to appellees. Thus, to the extent

that this factor is relevant, it weighs slightly in favor of the appellees.
 30

Finally, the fifth factor is “evidence that drug-related activity continues to

exist in a child‟s home environment after intervention and services have been

provided pursuant to [D.C. Code § 4-1301.06 (a)].” 13 D.C. Code § 16-2353 (b)(5).

There is no evidence of any drug activity in appellees‟ home. As outlined above in

the discussion of Mr. B.‟s parental fitness, however, there is significant evidence of

past and current substance abuse in his home. Mr. B. has a lengthy history of

marijuana use and admitted that he was currently using K2. Furthermore, Ms. B.

13
Mr. B. attended a substance abuse group he found on his own and was not
required to attend. The trial court ordered drug testing, mental health evaluations,
parenting classes, and weekly visits with K.B. Those visits were initially
supervised; as appellants were initially compliant with the court-ordered services,
the visits were changed to unsupervised, progressing to overnight visits at
appellants‟ home. Mr. B. claims that he was not given sufficient support after Ms.
B.‟s relapse during one unsupervised overnight visit and his candid
acknowledgment that he was unable to care for K.B. by himself, and that instead,
the agency immediately changed the permanency goal to adoption. The record
shows otherwise. When Ms. B. relapsed in August 2013 a change was made to
supervised visits. Mr. B. stopped visiting because he thought the decision to take
K.B. away had been made, but he was disabused of that notion in November 2013
and encouraged to visit. He did not, however, resume his visits because Ms. B.
was incarcerated. The permanency goal was changed to adoption in January 2014.
Mr. B. does not specify what services would have permitted him to care for K.B.
without Ms. B.‟s presence and assistance. See In re A.C., 597 A.2d 920, 922 (D.C.
1991) (noting that although efforts of custodial agency to reunify family are
relevant, agency‟s failings “do not preclude termination, if in the child‟s best
interest”).
 31

also lives in the home, and her alcoholism was not in remission. This factor clearly

weighs in favor of placing K.B. with appellees.14

The trial court found by clear and convincing evidence that the relevant

statutory factors weighed in favor of placing K.B. with appellees, after properly

denying Mr. B. the presumption that K.B.‟s best interests would be served by

placement with his natural parent. “Evidence of continued drug activity” — which

was undisputed in this case — “shall be given great weight.” D.C. Code § 16-2353

(b)(5). It was therefore not an abuse of discretion for either the magistrate judge or

the associate judge to conclude that it was in K.B.‟s best interests to terminate Mr.

B.‟s parental rights and place K.B. with appellees.

III.

Adoption, as discussed above, requires the consent of a natural parent, or the

court‟s waiver of the parent‟s consent. D.C. Code § 16-304 (a). Consent, once

given, “is irrevocable absent a showing that it has been given involuntarily.”

J.M.A.L. v. Lutheran Soc. Servs. of the Nat’l Capital Area, Inc., 418 A.2d 133, 135

14
A sixth factor, whether the child was left in the hospital after birth despite
a medical determination that the child could be discharged, was not relevant to this
case. See D.C. Code § 16-2353 (b)(3A).
 32

(D.C. 1980); see also Super. Ct. Adopt. R. 70.15 To be voluntary, consent must be

made without coercion, fraud, or mistake. J.M.A.L., 418 A.2d at 136. On review

of the trial court‟s determination that consent was given voluntarily, we assess

whether the finding is supported by the record and is not clearly erroneous. See id.

(whether finding is “plainly wrong or without evidence to support it”); In re

S.E.D., 324 A.2d 200, 201 (D.C. 1974).

Ms. B. claims that the consent she gave in court on January 14, 2015, was

involuntary because she lacked sufficient advice of counsel. She also claims that

her incarceration and her emotional state of mind during the court‟s voir dire

indicated that she was not voluntarily consenting to the adoption, and that she was

pressured into giving consent in exchange for the Post-Adoption Contract

Agreement as her only option for maintaining contact with K.B. Both the

15
A consent to adoption may be revoked or withdrawn only
after a judicial determination that the consent was not
voluntarily given. The person moving to withdraw or
revoke consent has the burden of proof to establish that
the consent was not voluntarily given. The Court shall
set a separate hearing to determine whether to permit
revocation of a consent. If revocation or withdrawal of
consent is permitted, the Court shall proceed on an
expedited basis to determine whether consent is being
withheld contrary to the best interests of the child
pursuant to D.C. Code § 16-304 (e).

Super. Ct. Adopt. R. 70 (a).
 33

magistrate judge and the associate judge considered these arguments and found

that Ms. B.‟s consent was voluntary. On the record before us, we have no basis to

reverse their determination.

Ms. B. had a statutory right to the effective assistance of counsel in a

proceeding that could lead to termination of her parental rights. See In re R.E.S.,

978 A.2d 182, 188 (D.C. 2009) (citing D.C. Code § 16-2304 (b)(1)); see also

Lassiter v. Department of Soc. Servs., 452 U.S. 18, 32 (1981) (holding that because

of fundamental liberty interest at stake in proceeding leading to termination of

parental rights, due process might require appointment of counsel, a determination

to be made on a case-by-case basis). In determining whether the protection

afforded by her right to counsel has been satisfied, we apply the familiar two-step

standard developed for criminal proceedings, which considers whether the

lawyer‟s performance has been deficient and, if so, whether the client was

prejudiced as a result. See In re R.E.S., 978 A.2d at 191 (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)).16

16
Claims of ineffective assistance of counsel should be raised on direct
appeal, preferably by motion “as soon as possible,” and no later than “within one
year following the date the final decree became effective.” In re R.E.S., 978 A.2d
at 193 (quoting D.C. Code § 16-310 (2001)); see In re R.E.S., 978 A.2d at 193
nn.9-10 (noting possibility that claim of ineffectiveness could also be brought in
Superior Court pursuant to Super. Ct. Adopt. R. 60 (d)). Ms. B. did not file a
(continued . . .)
 34

Two days before she gave her consent, Ms. B. asked for new counsel, or

another lawyer to assist her counsel, but she gave no reason for her request other

than that she preferred that another lawyer be involved in her representation. The

trial court denied the request, noting that Ms. Graham was doing well in her

representation of Ms. B., and that a change of counsel at that time would result in

delay. At the hearing on the motion to revoke her consent, Ms. B. claimed that her

lawyer did not “give [her] all the information.” On appeal, Ms. B. adds that she

was not advised about the “positive and negative factors” that the court would have

to consider in deciding whether to waive her consent to adoption. There is no

evidence to support these claims other than Ms. B.‟s bare assertions.17 The trial

transcript supports a contrary inference. Ms. Graham informed the court that she

and Ms. B. had “talked about [the consent] at length” throughout that week. When

Ms. B. told the court she wanted to consent, the trial court immediately recalled

that she had requested another lawyer, and asked Ms. B. several times if she had

had advice of counsel in giving her consent. Each time Ms. B. answered, “Yes.”
________________
(. . . continued)
motion, but her brief raising questions about her counsel‟s representation was filed
on July 22, 2016, well within a year of the final decree of adoption, which was
approved by the Superior Court on February 4, 2016. Although her brief on appeal
does not specifically rely on the Strickland factors, her argument amounts to a
claim that her counsel‟s deficiencies led her to make a decision to consent that she
otherwise would not have made.
17
Ms. Graham was not called to testify at the revocation hearing.
 35

She did not renew her request for different counsel. As for Ms. B.‟s claim that Ms.

Graham told her that consenting was the only way she would get to see her son,

Ms. B. offered no evidence of this other than her uncorroborated testimony, which

the magistrate judge did not find credible. The trial court‟s finding that Ms. B. did

have advice of competent counsel in deciding to consent to the adoption was

reasonably supported by the record.

The trial court also found that neither Ms. B.‟s incarceration at the time nor

her emotional distress rendered her consent involuntary. Consenting to the

adoption of her son was obviously a difficult and profoundly distressing decision

for Ms. B. 18 The trial court was aware of this and responded with sensitivity. As

Ms. B. became increasingly upset while the court conducted the questioning about

her decision to consent, the court gave her time to compose herself, and stated, “I

can see that you are upset right now, and I don‟t want you to necessarily make a

decision of this importance that you‟re not sure of.” The court asked Ms. B.

18
Because the transcript of the hearing contained a number of indications of
pauses during which Ms. B.‟s testimony was interrupted, this court obtained a copy
of the recording to have a more complete understanding of what transpired during
the proceeding. Ms. B. is heard to be crying, sobbing at times, and evidently
distressed. But she collected herself and was able to respond to the trial court‟s
questions without once denying her intent to consent. A wrenching decision of this
kind is heartbreaking for a parent, and it must have been very hard to accept that
Ms. B.‟s personal circumstances were such that adoption was the best option for
her child. But it does not mean it was not her choice.
 36

several times if she was sure she wished to consent, and specifically asked if she

felt pressured to do so.19 Although Ms. B. wondered whether “one relapse” was

“serious” and sufficient to lose her “sweet baby,” each time the judge inquired, she

affirmed that she was consenting to the adoption. Her testimony at the hearing to

revoke her consent, that she was “not really all together” 20 and did not know how

long she might be incarcerated, reflects the difficult circumstances in which she

found herself at the time, but it does not override the trial court‟s finding, based on

first-hand observations, that her consent was voluntary. As the trial court found,

Ms. B. understood the legal consequences of her decision, and, after having heard

the evidence at trial, made a “strategic choice” to consent to the adoption.

The evidence also belies the contention that Ms. B. was pressured to consent

in exchange for the Post-Adoption Contact Agreement that would permit her to

19
In response to the court asking if she felt pressured to consent, Ms. B.
gave a non-verbal response that the court interpreted as shaking her head.
20
On appeal, Ms. B. contends that because the court was aware of her
mental illness and alcohol dependence, the court should have made further inquiry
about her present mental condition and whether she had taken her medications that
day. Ms. B.‟s testimony up to that point, however, was that she was one hundred
percent dedicated to her sobriety, was taking her medication, and that her seizures
were being effectively controlled. Thus, there was no reason for the court to
inquire further into her mental clarity or competence to consent, beyond the court‟s
questioning about her willingness to consent and her understanding of the legal
implications of consent to adoption.
 37

have continuing contact with K.B. At the time she gave her consent in open court,

Ms. B. asked to address the judge directly and told the judge that she “wanted the

best for [her] son” and that she wanted to consent because she believed it would be

in K.B.‟s best interest. Ms. B. testified at the hearing on her motion to revoke her

consent that Ms. Graham pressured her into consenting as the only way she could

have future contact with K.B. The magistrate judge, who was in the best position

to “observe [Ms. B.‟s] demeanor and form a conclusion” about her credibility, In

re P.S., 797 A.2d 1219, 1224 (D.C. 2001), did not find this assertion credible.

There is also no evidence that appellees would withhold the promise of

continued contact with K.B. unless Ms. B. consented to the adoption. On the

contrary, appellees were clearly open to maintaining a relationship between K.B.

and appellants even before Ms. B. consented to the adoption. Two days before Ms.

B. consented, P.O. had testified that if the adoption petition were granted, “[W]e

do think that [K.B.] should have some contact with his birth parents. We, that‟s

what we wanted . . . I want [our adopted children] to know who their biological

parents are, and I want them to have a good healthy relationship with them.” 21 The

21
Other evidence in the record corroborated that the adoptive parents
intended that K.B. have contact with his natural parents. The adoptive parents
have one adopted child and were in the process of adopting another. P.O. testified
that the adopted child had a continuing relationship with his birth mother and that
(continued . . .)
 38

Post-Adoption Contact Agreement itself, which Ms. B. signed the same day that

she consented, states that the agreement was entered into voluntarily and that

nothing was promised in exchange for any of the parties‟ signatures.

At the hearing on Ms. B.‟s motion to revoke her consent, the court found

that Ms. B. “clearly made a determination, with the advice of counsel . . . as to

whether or not she believed she would prevail at trial[,] and I think that went into

her determination as to whether or not to consent to the adoption.” As a result, the

trial court found that Ms. B. consented to the adoption “strategically after sitting

through the entirety of a four day trial in an effort to preserve the possibility of

future contact with her son,” and not because she was coerced into doing so. That

Ms. B. evaluated her chances of prevailing in deciding whether to consent was a

reasonable approach, well-founded on the evidence presented at trial. It does not

detract from Ms. B.‟s stated reason, as a mother who loves her son, that she was

doing so because she thought adoption to be in the best interests of the child. On

________________
(. . . continued)
she wished the same for K.B. Thus, Ms. B. had reason to believe they would offer
the same treatment to K.B.‟s natural parents even without receiving Ms. B.‟s
consent to the adoption.
 39

this record, we have no basis to reverse the magistrate judge‟s finding, affirmed by

the associate judge, that Ms. B.‟s consent to the adoption was voluntary. 22

IV.

We hold that the trial court did not abuse discretion in its determination that

Mr. B. was not able to care for K.B. and that withholding his consent to adoption

by the petitioners was contrary to the child‟s best interests. We also hold that the

trial court did not clearly err in finding that Ms. B.‟s consent to the adoption was

voluntary. Therefore, the associate judge‟s Orders affirming the magistrate judge‟s

Orders and Final Decree of Adoption are affirmed.

So ordered.

22
Ms. B.‟s brief on appeal asserts that there is no Post-Adoption Contact
Agreement with Mr. B., who did not consent to the adoption. We are urged to
infer that the reason is that Ms. B.‟s consent was the quid pro quo for her Contact
Agreement. There is no evidence in the record with respect to whether Mr. B. has
(or does not have) a Post-Adoption Contact Agreement or in fact has continuing
contact with K.B.