D.C. Appeals Court Faces Challenge in Adoption Case
Ruling raises questions over how judges determine children's best interests.
In 2009, the foster parents and the children's aunt both filed for adoption. The birth parents said they preferred the aunt. The D.C. Child and Family Services Agency supported the foster parents. An adoption trial was held in May 2011.
At trial, Superior Court Judge Neal Kravitz heard testimony from experts, including one hired by the foster parents to study the children's "attachment" to them, and one hired by the aunt to critique that testimony. Kravitz granted the foster family's petition in August 2011. He found the aunt was a fit caretaker, but cited evidence about the children's strong attachment to the foster parents and the risks of separation.
The appeals court said Kravitz did not show he gave the aunt's petition "weighty consideration." Absent a study of the children's attachment to their aunt — which the court said wouldn't have been fair anyway since the aunt didn't have enough time to bond with the children — the trial judge didn't have enough evidence to make a decision, Washington wrote.
The Legal Aid Society of the District of Columbia supported the aunt and birth parents. John Keeney Jr., director of Legal Aid's appellate program, said they were "delighted that the court did the right thing and applied the law." The D.C. Office of the Attorney General, which supported the foster parents' position on appeal, declined to comment.
The Children's Law Center referred the case to Gibson Dunn. The center routinely refers family court matters to local pro bono counsel; besides Gibson Dunn, other firms taking these types of cases have included Steptoe & Johnson LLP, Crowell & Moring and Jones Day.
If the opinion withstands a challenge, Gould said, she expects lawyers for nonpreferred petitioners to agree to giving the birth parents' choice more time with the children. "Otherwise, how are they going to overcome this burden?" she said.
Katsur said she was worried the ruling would create new uncertainty about the adoption process. "We do have concerns about foster parents being reluctant to seek to adopt their foster children if they have knowledge of this case and realizing that five years later, their children could be ripped out of their home," she said.
The children's guardian ad litem also filed a petition for a rehearing.
Lawyers on both sides declined to speculate on the outcome if the case was sent back to the trial judge. Washington wrote that because the children had spent more than five years with the foster parents, it was not clear that awarding the aunt custody was in the children's best interests. The court ordered the trial judge to reconsider the case, making sure he gives the aunt's petition "weighty consideration."
The court pointed out that, under D.C. case law, birth parents could not immediately appeal once a judge changed the goal from reunification to adoption, and instead had to wait until the case was finished. Washington said in a footnote the court was open to reconsidering that rule. Local attorneys say there are pending cases that would offer that opportunity.