In re P.M.B. J.B. ( 2023 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 22-FS-0557; 22-FS-0558 & 20-FS-559
IN RE: PETITION OF P.M.B.; J.B., APPELLANT,
(2021-ADASLD-000104, 2021-ADASLD-000105 & 2021-ADASLD-000106)
and
IN RE: PETITION OF S.H. & J.B., J.R.; J.B., APPELLANT
Nos. 22-FS-0667 & 22-FS-0668
(2021-ADASLD-000133 & 2021-ADASLD-000134)
Appeals from the Superior Court of the
District of Columbia
(Hon. Adrienne J. Noti, Magistrate Judge)
(Hon. Robert A. Salerno, Associate Judge)
(Submitted February 15, 2023 Decided March 22, 2023 ∗)
Murphy B. Henry for appellant.
Pamela Soncini, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia at the time the brief was filed,
Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy
Solicitor General, and Graham E. Phillips, Deputy Solicitor General, were on the
brief, for appellee.
∗
The decision in this case was originally issued as an unpublished
Memorandum Opinion and Judgment. Upon consideration of a motion to publish
filed by the District of Columbia, we grant the motion and publish this Opinion.
2
Before DEAHL, HOWARD, and SHANKER, Associate Judges.
SHANKER, Associate Judge: J.B., the biological father of five children ranging
from five to ten years old, appeals from a Superior Court order affirming a magistrate
judge’s Findings of Fact, Conclusions of Law, and Order Granting Adoption
Petitions. 1 The magistrate judge found that (1) J.B. was unfit to parent the children,
and (2) J.B. withheld his consent to adoption contrary to the best interests of the
children. The magistrate judge also granted the adoption petitions of P.M.B., S.H.,
and J.B. Jr. (the “prospective adopters”). 2 J.B. asserts that the record does not
support the magistrate judge’s findings that he is unfit to parent and that he withheld
his consent to adoption contrary to the children’s best interests. J.B. also argues that
the magistrate judge committed legal error by (1) improperly comparing J.B. with
the prospective adopters, (2) relying on J.B.’s poverty and poor health as factors in
determining the children’s best interests, and (3) allowing prospective adopters’
counsel to ask leading questions during trial. For the reasons set forth below, we
affirm.
1
J.A.L.S., the biological mother of the children, consented to adoption and
takes “no position” on appeal. See Statement in Lieu of Brief (Appellee J.A.L.S.).
2
P.M.B. petitioned to adopt children J.O., J.A.M.B., and J.L.O. S.H. and J.B.
Jr. petitioned to adopt children J.E.X.M.B. and J.A.B.W.L.
3
I. Background
In August 2018, amid allegations of chronic neglect, the Child and Family
Services Agency (“CFSA”) removed the children from their birth parents’ custody.
The children were eventually placed in foster homes with their prospective adopters.
In October 2018, the magistrate judge adjudicated the children neglected. See D.C.
Code §§ 16-2301(9)(A), -2320. Over the next several years, the magistrate judge
held a series of permanency hearings for the children. 3 See D.C. Code § 16-2323.
In each of these hearings, the magistrate judge found that CFSA had made
reasonable efforts to help J.B. achieve reunification but that J.B. had failed to make
adequate progress. At the October 2020 permanency hearing, CFSA requested a
permanency goal change to adoption, and the magistrate judge set an evidentiary
hearing, as required by In re Ta.L., 149 A.3d 1060 (D.C. 2016) (en banc).
3
The magistrate judge held at least five permanency hearings between
October 2018 and December 2020. At some hearings, the magistrate judge found
that J.B. had made progress in, for example, parenting classes and couples
counseling. At others, the magistrate judge found that J.B. had regressed or failed
to comply with recommended services, including therapy. In November 2020, J.B.
informed CFSA that he was moving to New York and would no longer participate
in the neglect case. At the following permanency hearing in December 2020, the
magistrate judge found that J.B. was no longer participating in services or
consistently visiting the children.
4
Between May and June 2021, the magistrate judge held a five-day Ta.L.
hearing via video conference, in which it heard testimony from two CFSA social
workers, the mother, and J.B. The magistrate judge found that CFSA had provided
J.B. with a reasonable plan to achieve reunification, but that J.B. had failed to make
adequate progress toward reunification. In particular, J.B. had refused to complete
his court-ordered mental health treatment and had not derived any benefit from his
parenting classes or domestic violence counseling despite completing those courses.
According to testimony, J.B. continued to “yell[ ] at and threaten” the children
during visits, display uncontrolled outbursts of anger, and verbally abuse the
children’s mother. Based on these findings, the magistrate judge concluded that
CFSA made “reasonable efforts in support of reunification” but that the parents
failed to make “adequate progress towards satisfying the requirements of the plan.”
On that basis, the magistrate judge changed the children’s permanency goal from
reunification to adoption. See D.C. Code § 16-2323. This court summarily affirmed
that ruling. Judgment, In re Jo.L., et al., Nos. 21-FS-0697 & 21-FS-0701 (D.C. Feb.
22, 2022) (finding that “the agency expended reasonable efforts” to achieve
reunification, including by “develop[ing] six written case plans that detailed each
parent’s requirements for reunification,” but that J.B. “either did not complete all of
the court-ordered services or failed to show improvement” in certain areas).
5
Following the goal change, the children’s respective foster parents filed
petitions to adopt. See D.C. Code §§ 16-302, -305. In January 2022, the magistrate
judge held a three-day adoption proceeding, see D.C. Code § 16-309, wherein it
heard testimony from seven witnesses, including three social workers, a forensic
psychologist, the prospective adopters, and J.B. The magistrate judge credited the
testimony of each of the social workers, the forensic psychologist, and the
prospective adopters. The magistrate judge concluded “that much of [J.B.’s]
testimony lack[ed] credibility.”
The social workers⸺all of whom had supervised the virtual 4 and in-person
visits 5 between J.B. and his children⸺testified that J.B. had significant ongoing
anger issues, failed to meaningfully interact with the children, and took no interest
in the children’s health, education, or wellbeing outside the short time he spent with
them each week. J.B. sometimes lashed out in anger or yelled obscenities at the
children and often conducted the virtual visits while he was at work, with others, or
4
In March 2020, the District of Columbia declared a public health emergency
due to the COVID-19 pandemic. As a consequence, J.B. usually met with the
children virtually.
5
One social worker ceased supervising in-person visits following the goal
change because she had received a threatening telephone call from J.B. and was
concerned for her safety.
6
in places with poor Internet service. J.B. did, however, usually provide a meal during
in-person visits and gave each child a small allowance.
Dr. Jennifer Carter, an expert in parenting capacity, testified regarding her
2019 evaluation of J.B. After J.B. arrived several hours late to his appointment, he
refused to complete any of the court-ordered testing except for the initial clinical
interview. J.B. also failed to engage in individual therapy. Dr. Carter opined that
J.B.’s failure to engage demonstrated a lack of motivation to reunify.
J.B. testified that he was aware that he was required to take parenting classes,
engage in therapy, and participate in anger management classes. J.B. testified that
he had completed these services, but he provided no documentation of having
completed anger management classes or therapy. J.B. could not state where the
children attended school and claimed he was “kept in the dark” regarding their
mental and emotional health.
Based on the above testimony, the magistrate judge found J.B. unfit to parent
the children and concluded that he was withholding his consent to adoption contrary
to the children’s best interests. See D.C. Code §§ 16-304(e), -2353(b). The
7
magistrate judge also granted the prospective adopters’ petitions. See D.C. Code
§ 16-309.
The reviewing associate judge, applying the same standard of review as this
court would apply on appeal of a judgment or order of the Superior Court, see In re
C.L.O., 41 A.3d 502, 510 (D.C. 2012), affirmed the magistrate judge’s rulings. The
reviewing judge rejected J.B.’s argument that the evidence presented was
insufficient to find him unfit or to find that he was withholding consent to adoption
against the children’s best interests, concluding that the magistrate judge’s findings
were “well-supported by the record.” The reviewing judge also concluded that the
magistrate judge properly considered J.B.’s housing situation.
II. Standard of Review
We review “a trial court’s order granting an adoption for abuse of discretion,
and determine[ ] 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) (internal quotations omitted). “Legal
8
questions are reviewed de novo, but findings of fact are reviewed for clear error.”
In re J.O., 176 A.3d 144, 153 (D.C. 2018). 6
Regarding questions of fact, this court “must also respect the prerogative of
the [trial] judge . . . to determine credibility and weigh the evidence.” In re Jam.J.,
825 A.2d 902, 910 (D.C. 2003) (alterations in original) (internal quotation marks
omitted). “The trial court’s findings of fact are entitled to great deference on appeal;
we cannot set them aside ‘unless they are plainly wrong or without any evidentiary
foundation.’” In re T.J.L., 998 A.2d 853, 860 (D.C. 2010) (quoting In re Baby Boy
C., 630 A.2d 670, 683 (D.C. 1993)). In particular, the reviewing court “will not
redetermine the credibility of witnesses where, as here, the trial court had the
opportunity to observe their demeanor and form a conclusion.” In re E.H., 718 A.2d
162, 169 (D.C. 1998) (internal quotation marks omitted).
6
“We are mindful that from a procedural standpoint, our role is to review the
order of the [Superior Court], not the magistrate judge.” In re C.L.O., 41 A.3d 502,
510 (D.C. 2012). We may, however, also “look to the findings and conclusions of
the fact finder on which [the Superior Court order] is based.” In re J.O., 176 A.3d
144, 153 (D.C. 2018) (internal quotation marks omitted).
9
III. Analysis
A. The record supports the magistrate judge’s
findings of fact and conclusions of law.
An adoption ordinarily requires the consent of the biological parents. D.C.
Code § 16-304(a). But a court may waive the consent of one or both biological
parents if it finds both that the parent is unfit and that the parent is withholding
consent to the adoption contrary to the best interest of the child. D.C. Code
§ 16-304(e).
J.B. first argues, in effect, that the record evidence does not support the
magistrate judge’s findings that he is unfit to parent and that he withheld his consent
to adoption contrary to the best interests of the children. We disagree. The record
amply supports the magistrate judge’s findings and conclusions, particularly in light
of our deferential standard of review.
1. The magistrate judge properly found J.B. unfit to parent
under the In re S.L.G. factors.
Biological parents have a fundamental liberty interest in preserving the
relationship between parent and child. Santosky v. Kramer, 455 U.S. 745, 753
10
(1982). This fundamental interest gives rise to a legal “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.” In re S.M., 985 A.2d 413, 417 (D.C. 2009). Due
to this presumption, a court must first make an independent assessment of parental
fitness before considering whether adoption is in the child’s best interest. In re Ta.L.,
149 A.3d 1060, 1081-82 (D.C. 2016) (en banc). The presumption of parental fitness
is “a strong one” that “reflects and reinforces the fundamental and constitutionally
protected liberty interest that natural parents have in the care, custody, and
management of their children . . . .” In re S.L.G., 110 A.3d 1275, 1286 (D.C. 2015).
Evidence of a parent’s unfitness must be clear and convincing. In re J.B.S., 237
A.3d 131, 147 (D.C. 2020) (en banc). “[T]he question of parental fitness is almost
always at the heart of any proceeding to terminate parental rights or waive a natural
parent’s consent to adoption.” In re S.L.G., 110 A.3d at 1286.
Although “parental ‘fitness’ is not a statutorily defined term in this
jurisdiction,” it refers broadly to “the parent’s intention and ability over time to
provide for a child’s wellbeing and meet the child’s needs.” Id. The fitness inquiry,
therefore, turns on whether the parent “is, or within a reasonable time will be, able
to care for the child in a way that does not endanger the child’s welfare.” Id. at
11
1286-87. Though not exhaustive, the factors a court should consider when
determining whether a natural parent is fit include:
[1] past or ongoing child abuse, neglect, maltreatment, or
abandonment; [2] a failure to maintain contact with,
nurture, or support the child; [3] involvement in criminal
or other activities that are seriously inimical to a child’s
welfare; [4] the inability or unwillingness to make
reasonable efforts to correct the behaviors or conditions
that led to the child’s removal from the parent’s custody,
to provide a safe and stable home for the child, or to meet
a particular child’s special needs; [5] chronic drug or
alcohol abuse; and [6] 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.
Id. at 1287.
In applying the S.L.G. factors, the magistrate judge found that J.B. was unfit
to parent “as evidenced by a variety of his behaviors: his failure to nurture the
children and to maintain appropriate contact with them . . .; his unwillingness to
make reasonable efforts to correct his behaviors . . .; his failure to provide a safe and
stable home . . .; and his mental health, domestic violence, and anger issues . . . .”
These findings are well supported by the record.
12
First, we find no clear error in the magistrate judge’s determination that J.B.
failed to maintain contact with or nurture his children. Although J.B. “seldom”
missed visits entirely, the quality of J.B.’s visits with the children was lacking. In
particular, J.B. was unable to give the children his undivided attention during their
weekly visits, which he often held during work or while he was preoccupied with
other matters despite having specifically requested those visitation times. On many
occasions, J.B. engaged with the children “for only approximately 15 minutes of the
one-hour visitation.” 7 Additionally, during virtual visits, J.B. was often unable or
refused to turn on his video camera or have consistent audio. J.B. appeared for
virtual visits on the Metro on several occasions, which caused additional
interference.
The record supports the magistrate judge’s finding that when J.B. did commit
to his children, he often engaged in problematic behavior. During both in-person
and virtual visits, J.B. displayed “outbursts of anger,” including screaming at and
threatening the children. On one occasion, J.B. “physically grabbed” one of the
children from a social worker, took off his belt, and threatened to “whip his [child’s]
7
The magistrate judge weighed this fact particularly heavily: “Regardless of
his explanation [for holding shortened visits], [J.B.] was unable to give his children
his undivided attention for even 15 minutes a week. Parenting 10-15 minutes per
week is not sufficient evidence of the ability to independently parent and weighs
strongly against his fitness.”
13
ass.” J.B. often used inappropriate language in front of the children and failed to
supervise them. Aside from these frequent outbursts of anger, J.B. was also unable
to console his children or connect with them emotionally.
To be sure, as J.B. argues, virtual visits are not an ideal way to connect with
one’s children. We have never, however, held that such visits categorically impinge
upon a parent’s “right of visitation.” See Wilkins v. Ferguson, 928 A.2d 655, 667
(D.C. 2007). After all, such a right “is not absolute.” Id. Other jurisdictions,
moreover, have at least impliedly upheld virtual or telephonic visitations. See, e.g.,
In re J.C., 873 S.E.2d 757, 762-64 (N.C. 2022); Thaddeus v. Sec’y of Exec. Office
of Health and Hum. Servs., 193 N.E.3d 472, 420-21 (Mass. 2022); Interest of O.O.,
No. 13-21-00411-CV, 2022 WL 1559725, at *15-16 (Tex. App.–Corpus Christi,
May 17, 2022); Interest of C.G., No. 20-1102, 2020 WL 7021684, at *2 (Iowa Ct.
App. Nov. 30, 2020). Here, virtual visits were justified due to the public health
emergency, see supra note 4, and because they allowed J.B. to see his children while
he was at work.
Second, the magistrate judge’s determination that J.B. was unwilling to make
even basic efforts to correct the conditions that led to the children’s removal is
supported by the record. As the magistrate judge found, J.B. did not demonstrate
14
that he can provide a safe and stable home, “as evidenced by his limited housing and
inability to [safely] care for [the children] during in-person visits.” J.B. declined to
provide his address to CFSA so that they could assess his housing. The magistrate
judge relied on J.B.’s own testimony that his housing situation was not suitable for
five children. J.B. also lacked any involvement in his children’s lives outside of his
short weekly visits and had not inquired about his children’s education or healthcare
needs. This is particularly problematic, as several of his children have special
mental, emotional, or educational needs.
Third, we defer to the magistrate judge’s conclusion that J.B. was not willing
to comply with court-ordered plans to achieve reunification. J.B. refused to
complete his court-ordered anger management courses. The magistrate judge did
not credit J.B.’s testimony that he attended anger management classes, as he
provided no proof of completion. Nor did J.B. complete a required psychological
examination or attend individual therapy, demonstrating, as the magistrate judge
found, “a lack of motivation to reunify” with his children. Although J.B. completed
“some” parenting classes and a 27-week domestic violence course (which he was
ordered to take following verbal and physical abuse of his then-wife), the magistrate
judge found that J.B. took little from these courses. For example, J.B. verbally
threatened J.A.L.S., the children’s birthmother, as recently as 2021.
15
As a result of J.B.’s unwillingness or inability to correct the conditions that
led to the children’s removal, J.B.’s children “have not returned to stay with him,
even temporarily, due to his failure to comply with court orders and his inability to
show that he has made any changes to ameliorate the issues that led to [the
children’s] removal.” Indeed, J.B. was not even granted unsupervised visitation
apart from a short period in 2019.
Finally, we note that the magistrate judge reviewed J.B.’s fitness under both
the non-exhaustive S.L.G. factors and the Termination of Parental Rights (“TPR”)
factors set forth in D.C. Code § 16-2353(b) (both discussed in more detail below).
The reviewing judge and the District of Columbia, however, correctly applied only
the In re S.L.G. factors at the parental-fitness stage, reserving the TPR factors for the
consent-waiver/best-interest prong of the analysis.
In In re S.L.G. we stated that “[t]he same statutory factors that guide the
court’s determination of a child’s best interest in a TPR or contested adoption
proceeding [that is, factors under D.C. Code § 16-2353(b)] also guide the court’s
assessment in that proceeding of the natural parent’s fitness vel non.” 110 A.3d at
1287. Later decisions, however, have stressed the procedural and substantive
16
independence of the fitness test vis-à-vis the TPR best-interest factors. See In re
Ta.L., 149 A.3d at 1083; In re J.B.S., 237 A.3d at 143 (“[O]ur cases now generally
require that the trial court make a parental unfitness determination before
undertaking a ‘best interests of the child’ analysis.”). Additionally, Supreme Court
decisions and subsequent decisions of this court have consistently reserved the
best-interest factors for the consent-waiver inquiry. See Santosky, 455 U.S. at 760(“But until the State proves parental unfitness, the child and his parents share a vital
interest in preventing erroneous termination of their relationship.”); In re D.R.M.,
198 A.3d 756, 763 (D.C. 2018); In re J.O., 176 A.3d at 153-54. This is because the
fitness inquiry is concerned primarily with “the parent’s intention and ability” to care
“for a child’s wellbeing and meet the child’s needs, with the basic inquiry focusing
on whether the parent is, or within a reasonable time will be, able to care for the
child in a way that does not endanger the child’s welfare,” rather than what would
be ideal for the child. In re J.O., 176 A.3d at 762. Accordingly, the fitness test
cannot correspond precisely with a best-interest analysis under the § 16-2353(b)
factors. Aside from the factors set out in S.L.G., we have not expanded on the
content of the fitness test.
Whatever the exact nature of the fitness prong, the trial court does not commit
reversible error if (1) consistent with In re Ta.L., it “conducted a proper bifurcated
17
analysis in which a threshold finding of unfitness preceded a determination of
whether the best interests of the child warranted a termination of parental rights,” In
re K.C., 200 A.3d 1216, 1241 n.21 (D.C. 2019), and (2) it assessed, at a minimum,
each relevant S.L.G. factor independently of the TPR factors. Here, even though the
magistrate judge considered the TPR factors under the same heading as its parental
fitness examination, it did so only after it independently analyzed J.B.’s fitness under
S.L.G. and found J.B. unfit under those factors, without regard to the prospective
adopters. Accordingly, the magistrate judge did not commit reversible error in this
respect.
In sum, we cannot say, based on the record—described only in small part
above—that the magistrate judge abused her discretion in finding J.B. unfit to parent
the children.
2. The magistrate judge correctly determined that J.B.
improperly withheld his consent to adoption contrary to the
children’s best interests.
Although the consent of each biological parent is ordinarily required prior to
the granting of an adoption, D.C. Code § 16-304(a), the trial court may determine
that the parent’s consent should be waived pursuant to § 16-304(e), which provides
that a “court may grant a petition for adoption without any of the consents specified
18
in [§ 16-304(a)], when the court finds . . . that the consent [is] withheld contrary to
the best interest of the child.” In re C.L.O., 41 A.3d 502, 510-11 (D.C. 2012).
Granting “an adoption over a natural parent’s objection is the functional equivalent
of a termination of parental rights.” In re J.O., 176 A.3d at 156 (internal quotation
marks omitted). Accordingly, the court must assess whether to waive the biological
parent’s consent under the same factors that apply in TPR proceedings, namely, the
best-interest factors set out in D.C. Code § 16-2353(b). In re S.M., 985 A.2d 413,
416 (D.C. 2009). These factors are:
(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, relatives, 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 . . . .
19
D.C. Code § 16-2353(b). 8 The reviewing judge “has wide latitude in applying
th[ese] statutory criteria.” In re An.C., 722 A.2d 36, 39 (D.C. 1998).
Again, J.B. does not argue that the magistrate judge applied an incorrect legal
standard or considered inappropriate factors, except as addressed below in Part III.B.
Rather, he argues only that the record does not support, by a preponderance of the
evidence, that he withheld his consent contrary to the children’s best interests. We
disagree. For largely the same reasons identified above and found by both the
magistrate judge and the reviewing judge, the record amply supports the magistrate
judge’s conclusions on each of the § 16-2353(b) factors.
First, we see no clear error in the magistrate judge’s determination that J.B. is
unable to provide continuity of care for the children and is unlikely to provide
consistent, stable housing. As discussed above, J.B. has not demonstrated an interest
in the children’s education, healthcare, or emotional needs. Returning the children
to his care risks undoing the significant progress that they have made while in the
care of their foster parents. Many of the children presented with developmental
8
“[T]he constitutional requirement of clear and convincing evidence applies
only to proof of a parent’s unfitness to care for a child; once that is established, it
comports with due process for the child’s best interests to be proved by a
preponderance of the evidence, whether the parent consents or not.” In re J.B.S.,
237 A.3d at 147.
20
delays and emotional difficulties after being removed from J.B.’s care. Now the
children “receive[ ] specialized services, including play therapy and trauma
informed therapy.” One of the children had a history of developmental and verbal
delays when she was in J.B.’s care, yet is now “at the top of her class in reading.”
Additionally, as described above and at length in both trial court opinions, J.B. lacks
sufficient housing to care for the children. Although J.B. asserts that he would take
steps to find adequate housing, the magistrate judge found his testimony not credible
in this regard.
Second, we conclude that the record supports the magistrate judge’s
conclusion that both J.B.’s and the children’s “physical, mental, and emotional
health” counsel in favor of waiving J.B.’s consent. J.B. himself is in “poor physical,
mental, and emotional health” and may be physically unable to care for the children.
Similarly, and as discussed at length already, returning custody to J.B. risks physical,
mental, and emotional harm to the children. As Dr. Carter testified, “it would place
the children in a vulnerable position with adjustment difficulties that could manifest
in emotional and behavior[al] problems.”
Third, the record supports the magistrate judge’s determination that J.B. and
the children do not share a nurturing and loving relationship such that it is in the
21
children’s best interests to be returned to his custody. The record is rife with
examples of inappropriate comments and behavior toward the children, J.B.’s
inattentiveness during visits, his overall lack of concern for the children’s health and
educational needs, and his outbursts of anger. The relationship between J.B. and the
children stands in stark contrast to the relationship between the children and their
foster parents, which is “strong, healthy, and supportive.” Due in large part, no
doubt, to this relationship, several of the children have demonstrated concrete
lifestyle improvements since moving in with their respective foster parents.
Finally, the record reflects that there is “some evidence” that two of the
children have expressed the desire to stay with their foster parents. For example,
one of the children “does not seem to engage with [J.B.] and reacts poorly after visits
with him.” The remainder of the children are too young to have a well-formed
opinion on the matter. Given the dearth of evidence on this point and the age of the
children, both the magistrate judge and the reviewing judge properly gave little
weight to this factor.
Accordingly, the record supports the conclusion that the § 16-2353(b) factors
justify a finding that J.B. is withholding his consent to adoption contrary to the best
interests of the children.
22
B. The legal issues raised by J.B. lack merit.
In addition to challenging the sufficiency of the record, J.B. raises three legal
arguments, each of which is unpersuasive.
1. The magistrate judge did not improperly compare J.B. with
the prospective adopters in assessing the children’s best
interests under D.C. Code § 16-2353(b).
J.B. argues that magistrate judge improperly compared him to the prospective
adopters. J.B. forfeited this argument by failing to raise it in his motion for review
in the Superior Court. See In re S.G., 581 A.2d 771, 783-84 (D.C. 1990) (holding
that father’s failure to raise argument in trial court proceeding amounted to
abandonment of the claim on appeal).
In any event, while the inquiry at the second, best-interest stage of the analysis
is “not to determine whether the adoption petitioners would be better parents, or
would provide a better home for the children,” In re J.L., 884 A.2d 1072, 1077 (D.C.
2005); see In re S.L.G., 110 A.3d at 1287-88 (“this court has admonished that a
termination of a natural parent’s rights may not be based on a direct comparison of
the natural parent with the adoption petitioners”), the trial court is to consider “all
23
persons involved with the child . . . in relationship to the best interests of the child,”
and “[t]he child’s relationship with the adoption petitioners may have a bearing on
the TPR decision,” In re S.L.G., 110 A.3d at 1288. See also D.C. Code
§ 16-2353(b)(3) (court shall consider “the quality of the interaction and
interrelationship of the child with his or her parent . . . and/or caretakers, including
the foster parent”) (emphasis added); D.C. Code § 16-2353(b)(2) (court shall
consider “the physical, mental and emotional health of all individuals involved to
the degree that such affects the welfare of the child . . .”) (emphasis added). 9 The
record reflects that the magistrate judge simply engaged in that appropriate analysis.
9
In light of Ta.L., a court also may not compare the prospective adopters with
the natural parents at the first, parental-fitness step. See In re D.R.M., 198 A.3d 756,
763 (D.C. 2018) (“The determination of unfitness shall be focused on the parent’s
willingness and ability and, because unfitness is a separate determination, it should
not be made by comparing the birth parent’s fitness with that of the adoptive
parent.”). If the biological parent is found fit, there is a “strong presumption that
placement with a natural parent is in the child’s best interest.” In re J.O., 176 A.3d
at 156. Although it is theoretically possible that the best interest of the child can
override this presumption, see In re Ta.L., 149 A.3d at 1083, it is quite difficult “to
postulate a realistic factual situation where a ‘fit’ parent can be properly deprived of
parental rights” at the second prong of the analysis, Appeal of H.R. (In re Baby Boy
C.), 581 A.3d 1141, 1176-79 (D.C. 1990) (Newman, J., concurring). If, however,
the court finds that the biological parent is unfit, the presumption in favor of the
natural parent “falls away” at the best-interest stage. In re J.O., 176 A.3d at 156.
Here, the magistrate judge properly considered J.B.’s fitness in isolation from
the prospective adopters and did not apply a presumption in favor of J.B. at the best-
interest stage.
24
2. The magistrate judge did not improperly terminate J.B.’s
parental rights based on his inadequate housing.
Relying on In re J.L., 884 A.2d 1072, J.B. argues that the magistrate judge
improperly “dwelt” on his lack of adequate housing, a consideration “directly related
to poverty and his poor health,” which would be impermissible factors to consider
in determining whether to terminate parental rights. J.B.’s argument that the
magistrate judge placed undue weight on this factor is not supported by the record.
Although the magistrate judge did consider J.B.’s housing, she did so only in relation
to his ability to “actually care for his five children” and in the context of the
children’s best interests. See D.C. Code § 16-2353(b)(1) (in determining the child’s
best interest, a court must consider the “need for continuity of care . . . and for timely
integration into a stable and permanent home . . .”) (emphasis added). Far from
“dwel[ling]” on the issue, the magistrate judge properly considered J.B.’s housing
in relation to his parental responsibilities and as merely one factor among many in
ultimately terminating his parental rights. See In re J.L., 884 A.2d at 1077 (“Parental
rights, therefore, may not be terminated solely because of poverty, ill-health, or lack
of education or sophistication . . . .”) (emphasis added).
25
3. The magistrate judge did not abuse her discretion in allowing
adoption petitioners’ counsel to ask leading questions.
J.B. argues that “[t]hroughout [adoption] petitioners’ counsel[’s] direct
examination of the social workers in particular, there were instances of counsel
leading the witnesses.” The record does reveal instances in which adoption
petitioners’ counsel asked leading questions. J.B., however, failed to raise this issue
when seeking review in the Superior Court. Even if he had preserved the claim, J.B.
does not identify, with sufficient specificity, which questions he finds objectionable
and what prejudice occurred as a result. See Wagner v. Georgetown Univ. Medical
Ctr., 768 A.2d 546, 554 n.9 (D.C. 2001) (the “bare mention” of a claim “does not
suffice to preserve the argument for our consideration”); D.C. App. R. 28(a)(10)
(brief must contain an argument “containing the appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on which
the appellant relies”). J.B.’s mere reference to counsel’s “leading questions” does
not sufficiently narrow the issue for our review. Id.In any event, “[t]he trial court has fairly broad discretion to allow leading
questions to be asked, and reversal is usually not required if the record shows that
the court exercised that discretion.” Bailey v. United States, 831 A.2d 973, 984 (D.C.
2003). The record “clearly and repeatedly demonstrates that the [magistrate judge]
26
was alert to the possibility of prejudice and acted appropriately.” Id. at 984.
Although adoption petitioners’ counsel asked several leading questions, the record
shows that the magistrate judge often sustained J.B.’s objections or cautioned
counsel to avoid leading questions even without prompting from J.B.’s attorney.
IV. Conclusion
For the foregoing reasons, we affirm.
So ordered.