In re A.W.K.

WAGNER, Chief Judge,

dissenting:

In my view, the court lacked jurisdiction of the adoption proceeding. I agree with the majority that the authority of the Superior Court over adoption cases derives from statute and not from the general equitable powers of the court. However, in my opinion, the jurisdictional requirements of the adoption statute were not met in this case. Since the petitioners in the adoption proceeding were not residents of, and did not reside in the District of Columbia for one year preceding the filing of the adoption petition, the only remaining basis for subject matter jurisdiction was if “the child to be adopted [was] in the legal care, custody, or control of the Mayor or a child-placing agency licensed under the laws of the District of Columbia.” D.C.Code § 16 — 301(b) (1997 Repl.).1 As the District concedes, the court never committed the child to the care, custody or control of the Mayor or city agency authorized to assume that responsibility or a licensed child-placing agency. In the neglect proceeding, the trial court rejected the option of committing the child to the custody of a public agency responsible for neglected children under D.C.Code § 16-2320(a)(8)(A), and instead entered orders placing the child first with a relative, and subsequently in the care of an unrelated custodian pursuant to D.C.Code § 16-2320(a)(3)(C) (1997 Repl.).2 In numerous orders that followed, the court retained the third-party placement arrangement. The majority finds persuasive appellees’ argument that the court’s orders requiring DHS to secure evaluations and provide various services on behalf of the child were tantamount to placing the child in the care, custody and control of DHS. That can not be the case because the statute provides for the court to order such services for a child who is adjudicated neglected no matter where the court lodges custody. Specifically, D.C.Code § 16-2320(a)(5) provides that

[t]he [Family] Division shall have authority to (i) order any public agency of the District of Columbia to provide any service the Division determines is needed and which is within such agency’s legal authority.... 3

*329Thus, under this statute, even if the child is allowed to remain in the legal care and custody of the parent, the court can order a public agency to provide services deemed essential to the rehabilitative process and in the best interests of the child. Such services are typically of the type provided in this case, including coordinating and arranging visits with non-custodial, natural parents. Similarly, the court orders for District agencies to prepare reports pursuant to statute are among the services which the court can order no matter where it lodges custody of the child.4 Therefore, it can not be inferred from the fact that the court orders a public agency to provide such services pursuant to statute that it intends to, or does effect a modification of the legal custody of the child as established by prior court order.

Moreover, the trial court entered numerous orders in this case in which it had an opportunity to alter its custody placement, and it chose not to do so. It is only reasonable to infer that the court did not intend to place the legal care, custody and control of the child with the Mayor or DHS. For these reasons, I am persuaded that the prospective adoptee in this case was not in “the legal care, custody, or control of the Mayor or a child-placing agency licensed under the laws of the District” within the meaning of D.C.Code § 16 — 301(b)(3). Therefore, the court lacked jurisdiction to hear and determine the adoption petition at the time relevant hereto. See In re S.G., 663 A.2d 1215, 1221 (D.C.1995). “ ‘Parties cannot waive subject matter jurisdiction by their conduct or confer it on the court by consent, and the absence of such jurisdiction can be raised at any time.’ ” Customers Parking v. District of Columbia, 562 A.2d 651, 654 (D.C.1989) (quoting Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. 322, 367, 567 F.2d 429, 474 (1976)). Accordingly, whether the parents’ consent to adoption was being withheld contrary to the best interests of the child, the issue raised by the court’s show cause order, was not properly before the court. The trial court was obliged to dismiss the petition for adoption.

It may seem somewhat anomalous to conclude that the trial court lacked jurisdiction to entertain the adoption petition of non-residents even though it had jurisdiction to adjudicate the prospective adoptee to be a neglected child and supervised the child’s care thereafter. However, the case was simply not in a posture where jurisdictional prerequisites for adoption had been met. Had circumstances warranted it, the court could have transferred legal custody of the child to DHS, pursuant to D.C.Code § 2320(a)(3)(B), and the jurisdictional requirements for entertaining the adoption petition of non-residents could have been met subject to the time requirements imposed by law. See D.C.Code § 16-301(b)(3). Alternatively, the court may “[tjerminate the parent and child relationship for the purpose of seeking an adoptive placement for the child pursuant to sub-chapter III [i.e. D.C.Code §§ 16-2351 to - 2362].” D.C.Code § 16-2320(a)(6). However, the relevant sections of subchapter III provide that a motion to terminate parental rights must be initiated by the District of Columbia government or by the child, through his or her legal representative. D.C.Code § 16-2354(a) (1997 Repl.). Since that did not occur here, apparently the trial court was not attempting to follow *330the § 16-2320(a)(6) procedure. In addition, except under circumstances not present here, such motions can be filed “only when the child who is the subject of the motion has been adjudicated neglected at least six (6) months prior to the filing of the motion and the child is in the court-ordered custody of a department, agency, institution or person other than the parent....” D.C.Code § 16-2S54(b). Not only was there no motion to terminate parental rights filed by the child’s legal representative or by the government, but even the adoption petition of the non-resident petitioners was filed prematurely, less than two months after the adjudication of neglect and one month before the disposition hearing in the neglect case.

All of these statutory safeguards exist to protect the interests of the child and to provide fundamentally fair procedures to the parents when the state seeks to sever the parent-child relationship. In what may have been a well-intentioned effort to provide the swift integration of the minor child into a permanent adoptive home, multiple requirements of law were not followed, including the jurisdictional requirements for adoption by a non-resident.5 This court should not establish a precedent which sanctions short circuiting these requirements. For these reasons, I respectfully dissent from the opinion of the court'.

. D.C.Code § 16-301(a) & (b) provide in pertinent part that the Superior Court has jurisdiction to hear and determine decrees of adoption when any of the following circumstances exist:

(1) petitioner is a legal resident of the District of Columbia;
(2) petitioner has actually resided in the District for at least one year next preceding the filing of the petition; or
(3) the child to be adopted is in the legal care, custody, or control of the Mayor or a child-placing agency licensed under the laws of the District.

. D.C.Code § 16-2320(a) provides in pertinent part that upon an adjudication that a child is neglected, the court may order any of the following dispositions:

(1)Permit the child to remain with his or her parent, guardian, or other custodian, subject to such conditions and limitations as the [Family] Division may prescribe ...
(2) Place the child under protective supervision.
(3) Transfer legal custody to any of the following—

(A) a public agency responsible for the care of neglected children;

(B) a child placing agency or other private organization ... licensed or otherwise authorized by law ... and designated by the Mayor ... to receive and provide care for the child; or

(C) a relative or other individual who is found by the Division to be qualified to receive and care for the child....

.The court may also order any private agency receiving public funds for services to families or children to provide any such services when the Division deems it in the best inter*329ests of the child and within the scope of the legal obligations of the agency. D.C.Code § 16-2320(a)(5).

. See, e.g., D.C.Code § 16-2319 (1997 Repl.) (predisposition study and report) and D.C.Code § 16-307 (1997 Repl.) (investigation, report and recommendation of petition for adoption).

. Less than two months after the adjudication of neglect, the adoption petition was filed. Although the jurisdictional prerequisites were not met, the trial court issued an order for the natural parents to show cause “as to whether their consent to the adoption is being withheld contrary to the best interest of the child [ ]." The trial court was notified that an investigation of the home of the out-of-state petitioners could not be requested until the parental rights of at least one parent had been terminated or until their consents were waived by the Court. Subsequently, the trial court determined that the consents for the parents to the adoption should be waived in spite of the fact that it had not received a report on the suitability of petitioners’ home for adoptive placement. The trial court granted an interlocutory decree of adoption, which provided that it was "subject to being vacated and set aside completely within one (1) year should the State of New York refuse to approve final adoption placement in this case.” ;