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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 13-FS-406

                                    IN RE D.M.;

                                 T.M., APPELLANT.

                          Appeal from the Superior Court
                           of the District of Columbia
                                   Family Court
                                  (188-TPR-07)


                   (Hon. Lloyd U. Nolan, Jr., Magistrate Judge)
                    (Hon. Jennifer DiToro, Reviewing Judge)

(Argued January 30, 2014                                  Decided March 13, 2014)

      Madhavan K. Nair for appellant T.M.

      Jon S. Pascale for appellant T.P. filed a statement in lieu of brief in support
of appellant T.M.

       Charmetra L. Parker, Assistant Attorney General, with whom Irvin B.
Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for
appellee District of Columbia.

      R. Michael Labelle, guardian ad litem, for appellee D.M.

      Before GLICKMAN and EASTERLY, Associate Judges, and FERREN, Senior
Judge.
                                         2

      GLICKMAN, Associate Judge: T.M., the biological mother of D.M., appeals

the termination of her parental rights. She contends that the magistrate judge erred

by failing to give weighty consideration to the third-party custodial arrangement

she proposed as an alternative to the termination of her parental rights, and that

there was insufficient evidence that termination was in D.M.‘s best interest.

Although we are not persuaded by the latter claim, we agree that the magistrate

judge did not discuss T.M.‘s proposed custody arrangement in enough detail to

demonstrate that it received the weighty consideration our cases require.

Accordingly, we vacate the judgment of the Superior Court and remand this case

for further evaluation of T.M.‘s alternative custody proposal, and for such other

proceedings as may be appropriate in the light of changed circumstances.



                                         I.



      D.M was born on January 14, 2000, to T.M., his biological mother, and T.P.,

his biological father. On June 19, 2007, D.M. was committed to the care of the

Child and Family Services Agency (―CFSA‖) following T.M.‘s stipulation that she

was unable to care for him herself due to her incarceration and that she had not

designated another person to care for him in her absence.
                                          3

      The original goal of D.M.‘s commitment was for him to be reunited with his

biological mother. Eventually, however, on account of T.M.‘s persistent drug

dependency, which caused cognitive deficits and hampered her capacity for

rational decision-making, and T.M.‘s inability to complete court-mandated

parenting classes and therapy, the goal changed to adoption. On March 26, 2010,

the District of Columbia moved to terminate the parental rights of both T.M. and

T.P.1 The hearing on that motion commenced in late 2011.



      In the course of the hearing, T.M. testified that she wished to resume her

parental role and have D.M. live with her, but if that were not possible, she wanted

her son to live with her mother-in-law, T.M.2.2 T.M.2, who did not know D.M.

well,3 testified that she nonetheless was interested in becoming a foster parent for

him, even after she learned about his special needs and behavioral issues. To that

end, she testified, she had completed foster parenting classes, undergone a home

study, and been licensed as a foster parent by the relevant agency in Virginia



      1
       Although, for a period of time, T.P. had expressed an interest in reuniting
with D.M., by the time of trial he had (to quote the order of the magistrate judge)
―seemingly disappeared‖ from T.M.‘s life.
      2
          T.M. further testified that she would consent to D.M.‘s adoption by T.M.2.
      3
          She recalled having met him only once, when he was a young child.
                                          4

(where she resided).    T.M.2 expressed a willingness to adopt D.M. if CFSA

recommended it.



      CFSA, however, did not support T.M.2‘s candidacy as a suitable placement

for D.M.    Michael Carr, an adoption recruitment social worker with CFSA,

testified that the placement team doubted T.M.2‘s ability to care for D.M. in view

of his special needs and challenging behavior,4 T.M.2‘s demanding work schedule,

and the minimal supervision that would be available to D.M. in her absence.5 Carr

testified, moreover, that despite D.M.‘s age, special needs, and serious behavioral

issues, he was still adoptable; he had seen children with similar characteristics find

permanent adoptive placements.




      4
         It was noted that T.M.2 had indicated in a ―matching‖ questionnaire that
she would hesitate to care for a child with suicidal ideation or a problem with head-
banging. T.M.2 testified that she still desired to care for D.M. after she learned
that he had both those issues, but the CFSA social workers felt that she minimized
the seriousness of D.M.‘s troubling behavior and difficulties.
      5
         At the time of the hearing, T.M.2‘s job at the Department of Corrections
required her to be at work from 12:30 p.m. to 9:00 p.m., and her commute was an
hour and a half each way. T.M.2 testified that she would be able to change her
schedule so that she could work from 5:00 a.m. to 1:30 p.m. She anticipated that
her 23-year-old son would be available to supervise D.M. when she was not at
home.
                                          5

      The magistrate judge orally granted the District‘s motion on May 1, 2012,

and issued written findings of fact and conclusions of law on September 20, 2012.

He determined ―by clear and convincing evidence that it is in [D.M.]‘s best interest

to terminate the rights of his biological mother and father.‖ Only T.M. sought

review of that decision. The reviewing judge in Superior Court affirmed it, and

T.M. timely appealed to this court.



                                         II.



      In conducting our review of a decision to terminate parental rights, a

determination committed in the first instance to the trial court‘s discretion,6 ―we

are mindful that from a procedural standpoint, our role is to review the order of the

trial judge, not the magistrate judge.‖7 However, as this court has stated, ―we do

not believe our powers of appellate review are so limited that, in reviewing the trial

court‘s final order we may not look to the findings and conclusions of the fact

finder on which that ruling is based.‖8 Rather, ―we review the magistrate judge‘s


      6
          See In re Baby Boy C., 630 A.2d 670, 683 (D.C. 1993).
      7
          In re C.L.O., 41 A.3d 502, 510 (D.C. 2012) (citation, alterations, and
internal quotation marks omitted).
      8
          Id. (citation omitted).
                                            6

factual findings as the findings of the trial judge and review for abuse of discretion

or a clear lack of evidentiary support.‖9



      T.M.‘s strongest claim is her contention that the magistrate judge did not

properly evaluate her preference for T.M.2 to have custody of D.M. Because ―a

child and the natural parents share a vital interest in preventing erroneous

termination of their natural relationship,‖ we have mandated that ―a parent‘s choice

of a fit custodian for the child must be given weighty consideration which can be

overcome only by a showing, by clear and convincing evidence, that the custodial

arrangement and preservation of the parent-child relationship is clearly contrary to

the child‘s best interest.‖10 In other words, a parent, whose parental rights are still

intact, has the right to propose a custodial arrangement, which may include not

only adoption but also placement of the child with someone else while the


      9
           Id. (internal quotation marks omitted).
      10
          In re T.J., 666 A.2d 1, 11 (D.C. 1995); see also In re T.W.M., 18 A.3d
815, 819 (D.C. 2011) (―Where the parents have unequivocally exercised their right
to designate a custodian, the court can terminate the parents‘ right to choose only if
the court finds by clear and convincing evidence that the placement selected by the
parents is clearly not in the child‘s best interest.‖) (internal citations and quotation
marks omitted); In re F.N.B., 706 A.2d 28, 31 (D.C. 1998) (―[T]he availability of a
fit family member willing to assume legal custody of the child is an important
consideration in the court‘s decision whether to terminate the parent-child
relationship.‖) (citing In re Baby Girl D.S., 600 A.2d 71, 83–84 (D.C. 1991)).
                                           7

biological parent retains residual rights,11 and the court must give weighty

consideration to such an alternative before terminating the parent‘s rights. This

requirement, we have held, applies in connection with a petition to terminate

parental rights whether or not a custody or adoption petition has yet been filed or is

pending.12



      As the District notes, this court has, in dictum, construed its decision in In re

An.C.13 to mean that ―a biological parent‘s choice of related caretakers should not



      11
           See D.C. Code § 16-2301(22) (―The term ‗residual parental rights and
responsibilities‘ means those rights and responsibilities remaining with the parent
after transfer of legal custody or guardianship of the person, including (but not
limited to) the right of visitation, consent to adoption, and determination of
religious affiliation and the responsibility for support.‖). Foster care, third-party
custody, and permanent guardianship are three different forms of child placement
that are not incompatible with the maintenance of a biological parent‘s parental
rights. See 29 DCMR § 6000 et. seq. (foster care); D.C. Code § 16-2381 et seq.
(permanent guardianship); D.C. Code § 16-831.01 et seq. (third-party custody).
      12
          See In re F.N.B., 706 A.2d at 31 (―Although T.J. concerned adoption, its
underlying rationale is equally applicable to termination of parental rights cases . . .
especially because the constitutional implications are close, if not identical.‖)
(internal citations omitted); see also In re A.B., 955 A.2d 161, 165 (D.C. 2008)
(applying T.J. standard in a termination-only hearing, where alternative caretaker
identified himself during a permanency hearing as a placement resource); In re
B.J., 917 A.2d 86, 89 (D.C. 2007) (applying T.J. standard where alternative
caretaker testified during termination of parental rights hearing that she would
consider adopting or filing for guardianship of the children).
      13
           722 A.2d 36 (D.C. 1998).
                                           8

be afforded the same weighty consideration where the neglected child had been in

the custody of foster care for a considerable length of time before the biological

parent demonstrated any interest in exploring possible familial placement

options.‖14 But the court did not say this in An.C., and if this dictum is understood

to state a categorical exception to the rule that a biological parent‘s choice of a fit

custodian is entitled to weighty consideration in a termination of parental rights

proceeding, neither An.C. nor any of our subsequent cases supports it, and it is not

correct. ―It is important to recognize that our ‗weighty consideration‘ cases do not

say that the parents‘ preferences are necessarily controlling.‖15 Our opinion in

An.C. simply made clear that, while a natural parent‘s preference for a fit custodian

deserves weighty consideration (which it received in An.C.), the parent‘s tardiness

in expressing that preference legitimately may count against it when the delay

allowed the children to develop a strong bond with a fit foster caregiver who

wishes to provide a permanent home for them.16 In A.T.A. and the other cases cited


      14
          In re A.T.A., 910 A.2d 293, 297 n.4 (D.C. 2006) (citing In re An.C., 722
A.2d at 40-41); see also, e.g., In re K.D., 26 A.3d 772, 781-82 n.10 (D.C. 2011); In
re R.E.S., 19 A.3d 785, 790 n.5 (D.C. 2011); In re B.J., 917 A.2d at 93-94. In each
of these cases, beginning with In re A.T.A., the stated proposition, supposedly
originating in In re An.C., was dictum. See infra, footnote 17.
      15
           In re R.E.S., 19 A.3d at 790 (internal quotation marks omitted).
      16
          See In re An.C., 722 A.2d at 41 (―Although, as we held in T.J., the wishes
of a fit parent as to the custody of his or her child constitute an important factor in
                                                                        (continued…)
                                          9

in footnote 14, supra, the trial court properly gave great weight to the biological

parents‘ belatedly announced preference before finding it overcome by clear and

convincing evidence of the children‘s best interests, and on appeal this court did

not hold that the weighty consideration was unnecessary.17 We have never upheld

a trial court‘s failure to give weighty consideration to a parental preference on

account of parental dilatoriness; nor has this court ever held that weighty

consideration was unnecessary because the parent waited too long to propose a




(continued…)
the judge‘s calculus, the TPR judge could rationally find, and she did find, that in
this case the father‘s statement of preference came far too late, that the proposed
alternative placements were unrealistic, and that further delay would be detrimental
to the children‘s well-being.‖).
      17
           See In re K.D., 26 A.3d at 781-82 n. 10 (―declin[ing] to apply the
principle that a biological parent‘s choice of related caretakers should not be
afforded the same weighty consideration where the neglected child had been in the
custody of foster care for a considerable length of time before the biological parent
demonstrated any interest in exploring possible familial placement options‖ where
the natural parent was not ―derelict in locating other family members to adopt the
child,‖ and her choice was entitled to receive and did receive weighty
consideration); In re R.E.S., 19 A.3d at 790 n.5 (same); In re B.J., 917 A.2d at 94
(―[T]he trial judge carefully considered whether placement with Le.J. would be in
the best interests of B.J. and Br.J., and we are satisfied that, however weighty the
consideration to be given to L.J.‘s desire that Le.J. be permitted to care for B.J. and
Br.J., there was ample evidence that placement with Le.J. would not have been in
the children‘s best interests.‖); In re A.T.A., 910 A.2d at 297 (―Based on the trial
court‘s detailed findings, we find the great weight given to T.H.‘s choice of
caretaker was overcome by the best interests of the twins.‖).
                                         10

custody arrangement.18 At most, we now make clear, dilatoriness is simply a

factor to be considered as part of the weighty consideration that is due.



      We are constrained to say that the requisite ―weighty consideration‖ and

justification for overriding T.M.‘s preference do not appear on the face of the

magistrate judge‘s order in the present case. The order contains no finding that

T.M.2 is unfit to care for D.M. or that it would be contrary to D.M.‘s best interest

to place him in T.M.2‘s care.19 Indeed, there is no discussion at all of T.M.2 in the

section of the order setting forth the magistrate judge‘s conclusions of law, nor any

explicit recognition of the ―weighty consideration‖ requirement. The reviewing

      18
          Cf. In re C.L.O., 41 A.3d 502, 512 (D.C. 2012) (not deciding whether, in
a contested adoption proceeding, clear and convincing evidence is required to
override the opposition and waive the consent of a fit, unwed, noncustodial father
who has failed to seize his opportunity interest in developing a custodial
relationship with his child).
      19
          Rather, the magistrate judge acknowledged that T.M.2 had taken foster
care classes and become a licensed foster parent in Virginia, and that she was
willing to change her shift at work and make other accommodations in order for
D.M. to be placed with her. Although the magistrate judge noted that ―[T.M.2]
only recalled meeting [D.M.] once as a toddler‖ and ―testified that she did not
know everything about [D.M.],‖ those isolated findings fall well short of a
determination that the proposed placement of D.M. with T.M.2 would be contrary
to his best interest. The magistrate judge also noted that Carr ―had concerns about
[T.M.] minimizing [D.M.]‘s behaviors, as well as her work schedule and her ability
to have or give appropriate care to [D.M.];‖ but the judge did not evaluate those
concerns or weigh them in light of the totality of the evidence and the weight to be
accorded T.M.‘s preference.
                                          11

judge, addressing this same claim of error, concluded that ―[n]othing in the record

below supports the contention that the Magistrate Judge failed to give preference to

family members.‖ We do not agree with that conclusion. It would be more

accurate to say that nothing in the record assures us that the magistrate judge in

fact gave the requisite weighty consideration to T.M.‘s preference for placing D.M.

with T.M.2. Moreover, in the absence of more detailed factual findings than were

made here, such an omission cannot be cured by a de novo assessment of the

evidence by the reviewing judge or this court. We do not mean to suggest that the

magistrate judge could not have reached the conclusion on the record before us that

T.M.‘s preference was clearly contrary to D.M.‘s best interest; perhaps he did

reach that conclusion sub silentio. But he failed to put it in his order and explain it.



      That, however, is the only material deficiency we perceive in the trial court‘s

determination in this case. In reaching the conclusion that termination of parental

rights was in D.M.‘s best interest, the magistrate judge addressed each of the

relevant statutory factors20 and properly required proof by clear and convincing

evidence.21    The magistrate judge also considered whether the purposes of


      20
           See D.C. Code § 16-2353 (2012 Repl.).
      21
           See In re C.M., 916 A.2d 169, 175 (D.C. 2007).
                                        12

terminating parental rights would be served by granting the government‘s motion

in this case—including the purpose of enhancing the opportunity for a prompt

adoptive placement.22    Setting aside the question of T.M.2‘s candidacy as a

custodian for D.M., there was ample evidentiary support for the conclusions that

the magistrate judge reached with respect to all these factors. This evidentiary

support included testimony regarding D.M.‘s special needs, which were a

challenge even for his therapeutically-trained foster parent, T.D.; T.M.‘s severe

PCP dependence;23 her lack of consistency in maintaining contact with D.M.,

which included showing up quite late or missing scheduled visitation sessions; and

the quality of their interactions, during which D.M. sometimes acted more like a

parent to T.M. than vice versa. And notwithstanding the fact that no petition for

adoption of D.M. was pending, the finding that he was ―still a viable candidate for

adoption‖ was supported not only by Carr‘s testimony but also, as the magistrate

judge stated, by the potential adoptive interest expressed by T.D. Thus, subject to

      22
           See D.C. Code § 16-2351 (a)(3) (2012 Repl.); see also In re C.M., 916
A.2d at 178 (noting that in reviewing a termination of parental rights, the court
―considers whether any of the three enumerated purposes offer an answer for the
purpose of determining whether the termination of parental rights is warranted‖)
(internal quotation marks omitted).
      23
          T.M. tested positive for PCP each time she submitted for a drug test and
though she had been in seven to ten drug programs, she had not completed any.
Despite this history, T.M. would not acknowledge that she was addicted to PCP or
that she needed long-term treatment.
                                        13

the need for further evaluation of T.M.‘s preference for placing D.M. in the

custody of T.M.2, we are not persuaded by T.M.‘s contention that there was

insufficient evidence to find the termination of her parental rights to be in D.M.‘s

best interest.



                                        III.



       Because the magistrate judge failed to give the requisite consideration to

T.M.‘s choice of caretaker, we vacate the judgment of the Superior Court

terminating her parental rights and remand the case for further proceedings

consistent with this opinion.24



                                                   So ordered.




       24
           We recognize and do not foreclose the possibility that changed
circumstances also may need to be taken into account on remand in deciding
whether to grant the District‘s motion for termination of parental rights.
