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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 17-FS-1046

                             IN RE PETITION OF P.D.J.K.,                    04/26/2018


                                 J.W., APPELLANT.

                           Appeal from the Superior Court
                            of the District of Columbia
                                   (ADA-117-16)

                    (Hon. Carol Ann Dalton, Reviewing Judge)
                     (Hon. Rahkel Bouchet, Magistrate Judge)

(Submitted April 3, 2018                                    Decided April 26, 2018)

      Adriane R. Marblestein-Deare was on the brief for appellant J.W.

      Ronald A. Colbert was on the brief for petitioner/appellee P.D.J.K.

       Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, Stacy Anderson, Acting Deputy Solicitor General, and
Pamela Soncini, Assistant Attorney General, were on the brief for appellee the
District of Columbia.

      Karen A. Bower filed a statement in lieu of brief for appellee J.J.

       Stacey Boehm-Russell, guardian ad litem, filed a statement in lieu of brief
for respondent/appellee S.W.

      Before GLICKMAN and FISHER, Associate Judges, and WASHINGTON, Senior
Judge.
                                        2

      FISHER, Associate Judge:      Appellant J.W. appeals the decision of the

Superior Court to approve the adoption of her daughter S.W. without her consent.

She primarily contends that the adoption trial was fundamentally unfair and that

the magistrate judge abused her discretion in weighing the evidence. We disagree

and affirm.



                                   I. Background



      S.W. was born on February 4, 2014. Appellant J.W. is her biological mother

and J.J is her biological father. When S.W. was nearly eight months old, the

District of Columbia Child and Family Services Agency (“CFSA”) removed her

from J.W.’s care “after J.W. was found incoherent and under the influence of

drugs.” On September 30, 2014, CFSA placed S.W. in the care of her paternal

grandmother, P.D.J.K. A few weeks later the court adjudicated S.W. a neglected

child and set an initial permanency goal of reunification with J.W. However, on

September 29, 2015, the court changed the permanency goal to adoption due to

J.W.’s failure to address her substance abuse, achieve emotional stability, and

improve her caretaking skills. After the change of permanency goal, P.D.J.K. filed

a petition to adopt S.W. on February 12, 2016.    An adoption trial was originally

set for January 2017 but rescheduled, at J.W.’s request, for May 15 and 19, 2017.
                                         3



      Although the father consented to the adoption of S.W. by P.D.J.K. (his

mother) and the guardian ad litem supported the adoption petition, J.W. did not. In

March 2017, after this court’s decision in In re Ta.L., 149 A.3d 1060 (D.C. 2016)

(en banc), J.W. requested an evidentiary hearing on whether the permanency goal

should be changed. A hearing was held before Magistrate Judge Rahkel Bouchet

on May 15, 2017, the date previously scheduled for the adoption trial to begin.

The court heard testimony from three CFSA social workers who had provided

services to the family in the year preceding the goal change. J.W.’s counsel did

not call any witnesses and J.W. did not attend the hearing. At the conclusion of the

hearing Judge Bouchet announced that she would “maintain the goal of adoption”

and she issued a written Order on May 30, 2017. J.W. did not appeal that decision.



      Judge Bouchet then held a trial on P.D.J.K.’s adoption petition on May 19,

2017, one of the previously scheduled dates. P.D.J.K. and S.W.’s current CFSA

social worker each testified during trial, but J.W. was not present and her counsel

did not call any witnesses. After considering “the entire record in this matter” in

addition to the testimony presented during the adoption trial, Judge Bouchet found

by “clear and convincing evidence” that J.W. was an unfit parent, unable “to meet

the daily physical, and mental, and emotional needs of herself, let alone the
                                         4

requirements to meet the needs of the minor child.” Judge Bouchet also found that

it was in the best interests of S.W. “to be adopted by the petitioner, who she ha[d]

resided with for the past two years, and who ha[d] been maintaining and meeting

her needs.” The court issued a final decree of adoption on July 13, 2017, and J.W.

filed a motion for review. Associate Judge Carol Ann Dalton reviewed the record

and found that J.W. had not been denied “an impartial and fundamentally fair

proceeding” and that Judge Bouchet did not “err or abuse her discretion by

granting the adoption petition.”



                                     II. Analysis



      “We review a trial court’s determination in a proceeding to terminate

parental rights (TPR) and waive a natural parent’s consent to adoption for abuse of

discretion.” In re S.L.G., 110 A.3d 1275, 1284 (D.C. 2015). We treat “the

magistrate judge’s factual findings as the findings of the trial judge and review for

abuse of discretion or a clear lack of evidentiary support. As to alleged errors of

law, however, we review the record de novo, without deference to the judges

below.” In re C.L.O., 41 A.3d 502, 510 (D.C. 2012) (internal quotation marks

omitted).
                                          5

                           A. Appellant Received a Fair Trial



      J.W. first argues that the adoption trial “lacked the appearance of

impartiality and fundamental fairness” because Judge Bouchet ruled against her at

the end of the Ta.L. hearing and then presided over the adoption trial four days

later. However, J.W. did not object or ask Judge Bouchet to recuse herself either

before or during the adoption trial.      Although a “judge may have personal

experience with particular parties who have appeared before [her] in previous

cases, . . . such prior knowledge does not, by itself, generally raise questions about

the fairness of a judge.” Mayers v. Mayers, 908 A.2d 1182, 1194 (D.C. 2006)

(citation omitted); see also Liteky v. United States, 510 U.S. 540, 551 (1994). To

be disqualified from presiding over a proceeding, a judge must have a bias or

prejudice for or against a party that is “personal in nature” and that has “its source

beyond the four corners of the courtroom.” Anderson v. United States, 754 A.2d

920, 925 (D.C. 2000) (internal quotations and citation omitted).



      Assuming for the sake of argument that appellant has not forfeited this

claim, the fact that Judge Bouchet presided over the adoption trial after ruling that

the permanency goal should be changed to adoption is, by itself, not enough to

establish a lack of impartiality or fundamental fairness. Appellant does not point
                                         6

to a single fact that demonstrates Judge Bouchet was biased against her.

Moreover, the District of Columbia Family Court Act of 2001 recognizes the

importance of continuity and actually requires that, to the greatest extent

practicable, cases involving members of the same family “be assigned to the same

judge or magistrate judge.” D.C. Code § 11-1104 (a) (2012 Repl.). We are not

persuaded by J.W.’s arguments and hold there was no due process violation.



      J.W also claims that the adoption trial was fundamentally unfair because

Judge Bouchet “transplanted” testimony from the Ta.L. hearing and used it to

support her ruling in the adoption trial. Because the two proceedings require

different standards of proof, J.W. argues that Judge Bouchet should not have relied

so heavily upon the evidence from the Ta.L. hearing. However, when terminating

parental rights, the trial court may consider relevant facts found in a prior related

proceeding where the interested parent was a party and represented by counsel,

provided that the decision to terminate parental rights is ultimately based on clear

and convincing evidence. In re J.M.C., 741 A.2d 418, 424 (D.C. 1999) (allowing

trial court to consider relevant facts found in prior neglect proceeding when

terminating parental rights); see also S.S. v. D.M., 597 A.2d 870, 882 n.32

(D.C. 1991).
                                         7

      Although it is generally proper for a court to take notice of factual findings

made in a prior related proceeding, Judge Bouchet merely considered testimony

from the Ta.L. hearing as evidence when making her decision on P.D.J.K.’s

adoption petition.   Judge Bouchet recognized that the two proceedings were

separate and clarified that she was not “using the [Ta.L.] testimony for purposes of

leading in” to the adoption trial; however, “for purposes of judicial economy,” she

was not going to require the parties to call the “same witnesses” to give “the same

testimony” four days later. Judge Bouchet did not transpose any factual findings

from the Ta.L. hearing but properly considered the evidence from the Ta.L. hearing

in which J.W. was a party and represented by the same counsel. She also explicitly

noted both orally and in her written Order that the standard of proof required to

grant P.D.J.K.’s adoption petition was “clear and convincing evidence.” Thus,

Judge Bouchet’s use of evidence from the Ta.L. hearing was entirely proper and

most certainly was not, as appellant contends, fundamentally unfair.



               B. The Magistrate Judge Did Not Abuse Her Discretion



      J.W. next argues that the magistrate judge abused her discretion by not

allowing J.W.’s counsel to cross-examine P.D.J.K. about J.J.’s incarceration and

criminal history. J.W. claims that questions about J.J.’s “childhood and the nature
                                          8

of his upbringing which may have contributed to his apparent disregard for the

law” were relevant to P.D.J.K.’s fitness as an adoptive parent. “The extent of

cross-examination of a witness with respect to an appropriate subject of inquiry is

within the sound discretion of the trial court . . . [and it] may restrict cross-

examination to matters that are probative and relevant.” In re L.D.H., 776 A.2d

570, 573 (D.C. 2001) (internal quotation marks and citations omitted). The trial

court has discretion to limit cross-examination “where the connection between the

facts cited by [] counsel and the proposed line of questioning is too speculative to

support the questions.” Moore v. United States, 114 A.3d 646, 655 (D.C. 2015).



      Judge Bouchet considered J.W.’s arguments during the adoption trial and

determined that whether or not P.D.J.K.’s “adult son” was incarcerated was not “a

direct reflection of her parenting” and thus the court was “not going to draw the

connection between the adult decisions of [J.J.] and the petitioner.” Although J.W.

insists she was not trying to “place blame” on P.D.J.K., she still fails to proffer a

good faith basis for believing that J.J.’s incarceration as an adult was a reflection

on P.D.J.K.’s parenting. See id. (a “reasonable factual foundation” for a line of

cross-examination “calls for a credible good faith proffer of facts”).
                                          9

      Moreover, the trial court did not completely preclude this line of questioning

and gave J.W.’s counsel “reasonable latitude” on the issue of P.D.J.K.’s fitness as

an adoptive parent. See Du Beau v. Smither & Mayton, Inc., 203 F.2d 395, 396

(D.C. Cir. 1953) (holding that in both criminal and civil trials, “it is the essence of

a fair trial that reasonable latitude be given the cross-examiner”) (citation omitted);

Coles v. United States, 36 A.3d 352, 357 (D.C. 2012) (even in a criminal trial, a

defendant is guaranteed an “opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever extent, the defense

may wish”) (internal quotation marks and citation omitted).           Judge Bouchet

allowed J.W.’s counsel to ask whether P.D.J.K.’s younger son, who lived with her

at the time of the hearing, had ever been involved in the criminal justice system.

(The answer reflected well on him and his mother.) The magistrate judge also

stated that she would allow J.W. to “call [J.J.] and examine him on his choices” if

counsel desired. Appellant did not do so. Thus, Judge Bouchet did not abuse her

discretion by limiting J.W.’s cross-examination of P.D.J.K.



      J.W. contends that Judge Bouchet failed to “consider all the contributing

factors in their totality” before finding her “unfit to parent” S.W. Although there is

a strong presumption that a child’s best interest is served by placing her with her

natural parent, this presumption may be rebutted by clear and convincing evidence
                                        10

that the parent is unfit. In re S.L.G., 110 A.3d at 1285-86. Fitness 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 1286-87. Judge

Bouchet expressly acknowledged that J.W. had visited with S.W. and participated

in certain court-appointed services. However, because of J.W.’s previous neglect

of S.W. and failure to address her own “mental health, substance abuse, and

housing issues,” Judge Bouchet found that J.W. was unfit and unable to “meet the

needs of the minor child.” She specifically noted that J.W. had “not been able to

maintain any sense of stability in the community,” had “been detained on several

occasions,” and had “not had the ability to overcome her substance abuse despite

participating in services.” Judge Bouchet did not improperly compare J.W. to

P.D.J.K. when discussing fitness and clearly incorporated the parental presumption

into her analysis. Id. at 1288-89. Thus, she did not abuse her discretion in finding

J.W. unfit.



      J.W. also claims that Judge Bouchet improperly waived her consent to the

adoption of S.W. by P.D.J.K. Although a petition for adoption generally cannot be

granted without consent from both parents, consent may be waived if a parent

withholds his or her consent contrary to the best interest of the child. D.C. Code

§ 16-304 (e) (2012 Repl.). “Because granting an adoption without the natural
                                         11

parent’s consent necessarily terminates the parent’s rights,” the court must weigh

the termination of parental rights (“TPR”) factors listed in D.C. Code § 16-2353

(b) (2012 Repl.). In re Ta.L., 149 A.3d at 1072. Judge Bouchet analyzed the TPR

factors and found that J.W. was withholding her consent to the adoption contrary to

S.W.’s best interest. After considering J.W.’s incarceration, lack of stable housing,

significant mental health issues, and ongoing substance abuse, Judge Bouchet

found by clear and convincing evidence that J.W. could not “provide [the] support

and care that the minor child require[d]” and waived J.W.’s consent to the

adoption.



       Finally, J.W. protests Judge Bouchet’s decision to grant P.D.J.K.’s adoption

petition. A court may enter a final decree of adoption when it is satisfied that the

factors set out in D.C. Code § 16-309 (b) (2012 Repl.) are met. Judge Bouchet

found that S.W. was “physically, mentally, and otherwise suitable for adoption”

and that P.D.J.K. was “fit and able to provide [S.W. with] a proper home and

education” based on testimony from the adoption proceedings. She also analyzed

the TPR factors and determined that adoption by P.D.J.K. was in the best interests

of S.W. because P.D.J.K. provided S.W. with “a stable and nurturing home

environment,” did not have any mental or emotional health issues that would

negatively affect S.W., and had a strong bond and connection with S.W. Thus, we
                                         12

conclude that the magistrate judge did not abuse her discretion by terminating

J.W.’s parental rights and granting P.D.J.K.’s adoption petition.



                                  III.   Conclusion



      The judgment of the Superior Court is hereby



                                                           Affirmed.
