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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 13-FM-236

                                 S.M., APPELLANT

                                         v.

                                 R.M., APPELLEE.


            Appeal from the Superior Court of the District of Columbia
                                (DRB-1604-06)

                      (Hon. Alfred S. Irving, Jr., Trial Judge)

(Argued December 12, 2013                                  Decided June 12, 2014)

      Michelle R. Bonner, for appellant S.M.

      R.M., pro se.

      Melissa Colangelo, Children‟s Law Center, with whom Katherine Zeisel
was on the brief, for amicus curiae in support of child‟s best interests.

      Before GLICKMAN and EASTERLY, Associate Judges, and FARRELL, Senior
Judge.

      EASTERLY, Associate Judge: This case requires us to interpret the Safe and

Stable Homes for Children and Youth Amendment Act of 2007, D.C. Code §§ 16-

831.01 to .13, 21-2301 (2012 Repl.), the child custody statute governing transfer of

custody to non-parent third parties. Specifically, we consider whether the statutory
                                         2

parental presumption that custody with a parent is in a child‟s best interest applies

beyond the initial custody transfer decision, to the modification of a third-party

custody order.



      In May 2006, R.M. (“the aunt”) sought custody of T.P., the daughter of her

sister S.M. (“the mother”). After a November 2007 hearing at which the Superior

Court (the Honorable Fern Flanagan Saddler) awarded the aunt temporary custody

of T.P., the mother filed an emergency motion for a stay.            However, at a

subsequent December 2007 hearing, the mother, who appeared pro se, retracted the

allegations she had made in her emergency motion and agreed that custody of T.P.

should be given to the aunt. The mother consented to this arrangement with the

understanding that, in a year, when she completed treatment for her acknowledged

drug problem, she would get her “baby” back. This understanding was affirmed by

the aunt, who repeatedly reassured the mother at the hearing that she would regain

custody of T.P.



      As the parties discussed the custody arrangement, the Superior Court largely

remained silent. Although the court did note that the parties would have to file a

motion to modify the custody order, it did not explain what such a proceeding

would entail. At no point was there any acknowledgment that the aunt‟s complaint
                                          3

for custody had to be evaluated under the third party custody statute, D.C. Code

§ 16-831.01 et seq. (2012 Repl.), or that the third party custody statute recognizes a

parental presumption that custody with a biological parent is in a child‟s best

interest. At no point was there any acknowledgement that under the third party

custody statute, the mother had three choices: (1) she could preserve her parental

presumption by arranging, subject to her revocable consent, a temporary custody

situation for T.P. with the aunt; (2) she could stand on her parental presumption

and force the aunt to rebut it by clear and convincing evidence; or (3) she could

waive the parental presumption by giving irrevocable consent to a custody transfer

to the aunt, at which point the only concern in any future modification of custody

proceedings would be whether, given a substantial and material change in

circumstances, removal of T.P. from the custody of the aunt was in T.P.‟s best

interest. In fact, as reflected by its January 2008 order granting the aunt sole

physical and legal custody of T.P., the Superior Court did not appear to be aware

that the third-party custody statute governed these proceedings and cited instead to

the intra-parental custody statute, D.C. Code § 16-914 (2012 Repl.).



      The mother successfully addressed her drug problem, but she did not regain

custody of T.P. Several years passed, during which the mother filed multiple

motions to modify the 2008 custody order, as she had been directed to do at the
                                         4

2007 hearing. It is the resolution of the fourth modification motion that concerns

us. The mother, newly represented by counsel, asked the Superior Court (the

Honorable Alfred S. Irving, Jr.) to incorporate the parental presumption under D.C.

Code § 16-831.05 in its custody modification decision under D.C. Code § 16-

831.11. In orders issued in December 2012, the Superior Court declined to apply

the parental presumption and rejected the mother‟s motion for reconsideration. In

an order issued in January 2013, the court ruled on the mother‟s motion for

modification, finding that the mother had made a substantial change in her

circumstances, but determining that modification of custody was not in the best

interests of T.P.1 These three orders are now on appeal.



      The mother‟s central argument is that the Superior Court erred by not

incorporating the parental presumption into its custody modification decision.

Although she concedes that the parental presumption under D.C. Code § 16-831.05

ordinarily does not apply when a parent moves to modify a third-party custody

order to which the parent initially consented, she argues that such consent must be

      1
         In this opinion, all references to actions by the Superior Court between
2007 and 2009 are to Judge Saddler; all references to the actions of the Superior
Court after November 2011 are to Judge Irving. The Honorable John H. Bayly, Jr.
and the Honorable Zinora M. Mitchell-Rankin were also assigned to this case
between 2009 and 2011, but made no rulings pertinent to this appeal. It is unclear
why the case was transferred so many times.
                                         5

knowing and intelligent, and that she did not understand at the December 2007

hearing that she was irrevocably relinquishing custody of T.P. to the aunt.

Accordingly, the mother asserts that the parental presumption, having never been

properly rebutted or waived at the 2007 hearing, was still in force when she filed

the subject motion for modification. The aunt disputes the mother‟s contention

that she did not knowingly consent to an irrevocable transfer of custody and argues

that the parental presumption should not apply in this case.        Amicus curiae

Children‟s Law Center argues that the parental presumption is categorically

inapplicable whenever the Superior Court is considering a motion to modify a

custody order to a non-parent.



      Examining the text of the modification provision, D.C. Code § 16-831.11,

and the third party-custody statute as a whole, we determine that a parent‟s

irrevocable consent to the transfer of custody of her child to a non-parent under

D.C. Code § 16-831.05 (a) generally waives his or her parental presumption, such

that the presumption will not apply in subsequent modification proceedings. As

the third-party custody statute reflects, however, this general rule presumes that a

parent‟s irrevocable consent to a transfer of custody to a third party is given with

full knowledge and understanding of what she is consenting to and the

consequences of that consent. We conclude that the current appeal presents the
                                            6

exceptional case in which the record does not support the finding that the mother

knowingly and intelligently consented to an irrevocable transfer of custody of her

child. We therefore reverse the Superior Court‟s judgment awarding the aunt sole

legal and physical custody of minor T.P., and remand the case for further

proceedings consistent with this opinion.



                      I.      Facts and Procedural History



      T.P. was born in February 2000 to the mother and J.P. (“the father”), now

deceased. In May 2006, the aunt sought custody of T.P. At the time the aunt‟s

complaint was filed, the mother was housed at the D.C. jail. The father, who

determined that he was unable to adequately care for T.P. due to his advancing age

and failing health,2 consented to the aunt‟s complaint for custody. For over a year,

little action was taken in the case. In September 2007, the Superior Court held a

hearing on the aunt‟s complaint and took sworn testimony. In November 2007, the

parties received a ruling from the bench awarding the aunt temporary sole legal

and physical custody with visitation to both parents, and a hearing was scheduled

for May 2008 on the issue of permanent custody. Shortly thereafter, the mother


      2
          The father was 71 years old when the aunt filed the complaint for custody.
                                          7

filed a pro se emergency motion to stay the entry of the temporary order. The

court granted the motion and the case was continued to early December 2007.



      In December 2007 the mother, father, and aunt appeared for a status hearing;

all were without counsel. The mother then retracted the allegations she had made

in her emergency motion for a stay of the temporary order of custody. The mother

told the court that she had made arrangements to enter a year-long drug treatment

program and that she wished for the aunt to have custody of T.P. until she returned.

Instead of simply issuing the order for temporary custody awarded in November,

however, the court, sua sponte and without explanation, announced that it would

issue an order granting the aunt permanent custody.



      The court explained that the order would “say permanent custody, but it does

not mean forever.”      Rather, the court informed the mother that it meant:

“[A]nytime you want to change it, you file your motion.” To this the mother

responded: “I ain‟t going to want to change—I want her to keep . . . my daughter .

. . [u]ntil . . . I come home and complete that program and show my sister that I

don‟t have to use [drugs] to live my life.”
                                           8

      The mother‟s explicit desire to regain custody of her child prompted no

comment from the court other than an affirmation that filing a motion would be

“all you have to do.” After this exchange, the court appeared ready to quickly

conclude the proceedings, but then realized that it needed to confirm that the father

consented to a permanent transfer of custody to the aunt.



      As the court spoke to the father, the mother repeatedly interjected with

comments and questions. First, the mother informed the court that she wanted to

return to court to regain custody of T.P. “this month next year before Christmas.”

The court explained that she could come back “whenever [she] want[ed] to do it.”

When the court asked the father if he consented “to the aunt having sole legal and

sole physical custody,” the mother asked: “What [does] that mean, legal custody?”

The court told her that “it just means that [the aunt] gets to make decisions about

education . . . religious affiliation . . . [and] medical issues,” but that the aunt and

the mother could still confer about these matters.         The mother accepted this

explanation, but then returned to her questions about regaining custody: “And I

still get my daughter back when I . . . complete the program? Excuse me, Your

Honor, I get my daughter back?” The aunt quickly responded to this question:

“Yes.” The court then qualified: “It‟s not automatic. What I‟m trying to tell you
                                            9

is I‟m giving her custody. If you want to get your daughter back, file a motion

with the court.”



      The mother continued to express confusion, however, telling the court: “I

don‟t understand that.” Instead of getting an explanation from the court, she ended

up in a dialogue with her sister:



             AUNT:                  Just like how you came and filed that
                                    [emergency] motion, for to stop me?
             MOTHER:                I could file a motion to get my baby
                                    back?
             COURT:                 Correct.
             AUNT:                  Yeah, we‟ll do it together, you know?
             MOTHER:                Okay, let me ask you this in front of
                                    the judge.
             AUNT:                  Yes.
             MOTHER:                When I complete the program, can I
                                    have my baby back?
             AUNT:                  Yes, what did I tell you?
             MOTHER:                Okay.
             AUNT:                  What did I tell you about that?
             MOTHER:                You told me you want me to go get
                                    myself together because you don‟t
                                    want me to die like our brothers died
                                    over drugs and you don‟t want [T.P.]
                                    to go into a home.
             AUNT:                  Okay and what did I tell you, I‟m
                                    [T.P.]‟s what?
             MOTHER:                Aunt.
             AUNT:                  And you are her what?
             MOTHER:                Mother.
             AUNT:                  And—and—and who going to run—
                                    who needs to raise her?
                                          10

               MOTHER:           Her mother.
               AUNT:             Right.
               MOTHER:           Me.
               AUNT:             Yes, yes.

The mother and the aunt concluded their conversation with the aunt reassuring the

mother that she would bring T.P. to visit. The court, which had been silent during

this exchange, then changed the subject, asking the father how to spell his surname

and to confirm his date of birth and address.



      The hearing concluded shortly thereafter. The aunt and the father thanked

the court, and the mother told the court: “I‟ll see you next year.” The court

responded: “[T]here‟s no court date.” As the court began to explain, the aunt

interrupted:



      COURT:       If you want to change the . . . order . . .
      AUNT:        You have to file the papers.
      COURT:       . . . file something.

The mother asked one last time, “but it will still be next year, right?” The aunt

responded first:



      AUNT:        Okay, yes.
      COURT:       Whenever you file.
      MOTHER:      Okay.
      AUNT:        Yes.
                                             11

      The Superior Court issued a written order in January 2008 awarding the aunt

permanent custody of T.P. The court said nothing in its order about the mother‟s

repeatedly expressed desire to regain custody of her child in a year. Instead, the

court noted without further discussion that both the father and mother “wish for the

plaintiff to have custody of their minor child.” Even so, the court did not rest its

order on the parents‟ consent nor cite to any provision of D.C. Code § 16-831

governing awards of custody to non-parent third parties. Rather, the court applied

D.C. Code § 16-914 (2012 Repl.), which governs custody determinations “in any

proceeding between parents,” and makes determinative a “best interest of the

child” analysis using a list of statutory factors. Examining these factors, the

Superior Court concluded that the aunt was “a fit and proper person to have

permanent sole physical custody and permanent sole legal custody of the minor

child T.P. until further order of the court,” and that to award such custody was “in

the best interest of the minor child T.P.”



      The mother did not appeal the January 2008 order. Rather, over the next

three years she sought to regain custody of her daughter by filing a series of pro se

motions for modification of this order. In these motions she represented that she

had completed drug treatment, that she was no longer using drugs, and that she
                                        12

wanted to regain custody of her child, but that the aunt was reneging on her

promise to return T.P. to her mother. Each motion was denied.



      In January 2010, the mother filed her fourth pro se motion to modify

custody, which is the subject of the order on appeal.3 In this motion, the mother

asserted that there had been a substantial and material change in circumstances,

because, among other reasons, she had her own apartment and a stable job, and

because she had attended anger management classes, GED classes, and parenting

classes. A few months later Our Place DC assumed representation of the mother,

and in June 2010 counsel submitted an array of supporting documentary materials

to the court, including a letter from the mother‟s supervisor at the National Center

for Children and Families where she completed the Nurturing Parent Program, a

certificate of completion of that program, a letter from the principal of T.P.‟s

former elementary school where the mother works, an email from the D.C.

Children‟s Advocacy Collaborative concerning the mother‟s contribution to a

community program for teen girls, a psycho-social assessment conducted by Our




      3
         We note that neither the aunt nor amicus curiae Children's Law Center
contends that any of the Superior Court‟s previous denials of the mother‟s motions
for modification were merits-based such that her fourth motion to modify custody
was barred by res judicata.
                                        13

Place DC, and confirmation of negative results in random drug tests given by the

organization.4



      The hearing on the mother‟s fourth motion for modification of custody was

finally held in December 2012.5 Prior to the hearing, the court (now Judge Irving)

ruled on the mother‟s motion to incorporate the parental presumption under D.C.

Code § 16-831.05 in its custody modification decision under D.C. Code § 16-

831.11. The mother argued that she had not given irrevocable consent to a transfer

of custody to her sister and that the parental presumption had, accordingly, not

been properly waived at the 2007 hearing.



      The Superior Court denied the motion, determining that Judge Saddler had

“informed” the mother “that she would not forever be precluded from seeking

      4
        Because the mother did not test positive on any of the court-ordered drug
tests administered between June 2010 and August 2011, the Superior Court
eventually discontinued drug testing of the mother. The court later credited the
mother‟s testimony that she has not used drugs since June 2008.
      5
          It is not clear from the record why the case languished for two and a half
years. In the summer of 2010, the Superior Court ordered a home study, a
psychological evaluation of the mother and father, and bonding studies for T.P. and
all parties. All these studies were completed by April 2011. In November 2011,
seventeen months after the mother filed her motion for modification, the court set
the case for trial. But that date did not hold. Instead, the court granted several
continuances to the aunt and the guardian ad litem appointed to represent T.P. In
the meantime, T.P.‟s father died in October 2011.
                                        14

custody in her own right, but that she would have to file a motion to seek a

change.”   The Superior Court also found that Judge Saddler had “indicated,

perhaps not clearly enough for [the mother], that her written request would not

necessarily result in an automatic grant [of modification], but would require a

hearing and a best interest determination.”        Although the Superior Court

acknowledged that there were “portions of the transcript” that show that the mother

and aunt “contemplated a time and circumstances (her complete recovery from

drug use and abuse) when [the mother] would be able to care for” T.P. and when

the aunt would be “receptive to returning the child” to her mother‟s care, “[t]he

transcript reveals that Judge Saddler after sufficient and patient inquiry, was

satisfied that [the mother] understood that the custody order was permanent, and

that [the mother] would have to return to court to obtain a change.” “As such” the

Superior Court found “no indication on the record” that the mother did not give

irrevocable consent to a transfer of custody of T.P. to the aunt under D.C. Code

§ 16-831.05 (a).



      Against this factual backdrop, the Superior Court then considered “whether

the parental presumption (under D.C. Code § 16-831.05) applies in a modification

proceeding where custody has been awarded to a third party.” Analyzing the

statutory section that provides for the modification of a third-party custody order,
                                         15

D.C. Code § 16-831.11 (a), the Superior Court concluded it did not. The mother

moved for reconsideration of the court‟s ruling on her motion to apply the parental

presumption to the modification decision, but this motion was denied.



      After hearing testimony on December 18 and 19, 2012, the court based its

decision on the mother‟s motion to modify custody solely on whether the standard

set forth in D.C. Code § 16-831.11 (a)—i.e., whether there has been a substantial

and material change in circumstances and whether the modification would be in

the child‟s best interests—had been met. The court acknowledged that the mother

had undergone a “drastic change in behavior and attitude.”        Specifically, the

Superior Court noted that the mother “no longer uses drugs, and has not been

arrested since 2008,” that she “attended several parenting classes and seminars, as

well as obtained part-time employment,” and that she “volunteers at a local

elementary school.” The court also acknowledged that the mother had “put forth

numerous witnesses vouching for the change in her demeanor, behavior[,] and

maturity over the last two years.” The court “commended” the mother for this

turn-around, but nonetheless determined that, although this constituted a

“substantial change” under the statute, modification of the custody order was not in

the best interests of T.P. This appeal followed.
                                         16

                                II.      Analysis



      Title 16 of the D.C. Code contains two chapters that address child custody

determinations. The first is Chapter 9, which concerns the divorce or separation of

individuals with children; the provision therein addressing child custody

determinations between parents, § 16-914, contains no mention of a parental

presumption for obvious reasons.       The second is the more recently codified

Chapter 8A, which addresses custody awards to non-parent third parties.



      The Council of the District of Columbia enacted Chapter 8A as part of the

Safe and Stable Homes Act in 2007. This legislation was at least in part a response

to this court‟s decision in W.D. v. C.S.M., 906 A.2d 317 (D.C. 2006), which

determined that the Superior Court had exceeded its statutory authority in awarding

custody of a child to non-parent third parties in a domestic relations case. D.C.

Council, Comm. on Pub. Safety & the Judiciary, Report on Bill 17-41 at 2 (June 4,

2007) [hereinafter “Judiciary Comm. Report”]. The Council gave courts limited

authority to grant a non-parent third-party6 custody of a child, while at the same

      6
           Specifically noting that it was “mindful of the sanctity of parent[s‟]
rights,” the Committee “narrowly tailored this bill‟s third party standing in order to
show consideration of those rights.” Judiciary Comm. Report at 2. See D.C. Code
§ 16-831.02 (addressing who may seek custody of a child as a third party).
                                          17

time “recognizing and enforcing the constitutional rights of parents.” Safe &

Stable Homes for Children & Youth Amendment Act of 2007, D.C. Law 17-21; 54

D.C. Reg. 6835 (2007).7       To this end, D.C. Code § 16-831.05 (a) expressly

acknowledges that “there is a rebuttable presumption in all proceedings under this

chapter that custody with the parent is in the child‟s best interests.”



      Under the third party custody statute, the statutory parental presumption

must be dealt with in one of three ways before a third party custody order is

entered. First, the parental presumption may be preserved if the parent enters into

a revocable, court-approved8 custody agreement with a third party. D.C. Code

§§ 16-831.06 (d)(1); 16-831.11 (c). The court will memorialize this consensual

agreement in an order, D.C. Code § 16-831.06 (d)(1), but “upon the filing of a



      7
         See D.C. Council, Comm. on Human Servs., Report on Bill 17-41 at 4-5
(Mar. 23, 2007) (quoting a statement from former D.C. Superior Court Judge Eric
Holder stating that the Act “provides a clear framework to protect the rights of
parents”); id. at 5-6 (“The Supreme Court has recognized that natural parents have
a fundamental liberty interest . . . in the care, custody, and management of their
children, which is protected by the Fourteenth Amendment‟s Due Process Clause. .
. . Natural parents do not lose this constitutionally protected right simply because
they have not been model parents or have lost temporary custody of their child to
the State.” (citing this court‟s opinion in In re C.M., 916 A.2d 169, 179 (D.C.
2007))).
      8
          The court may reject this agreement if it determines it is not in the best
interest of the child. D.C. Code § 16-831.06 (d)(1).
                                         18

revocation by the consenting parent or the third party” this order “shall be

immediately vacated and of no further effect.” § 16-831.11 (c).



      Second, the parental presumption may be overcome if the third party seeking

custody of the child can rebut the presumption by clear and convincing evidence.

D.C. Code §§ 16-831.06 (b), 16-831.07 (a), (d). Once rebutted, the court may

consider whether custody with a third party is in the best interest of the child under

the factors set forth in D.C. Code § 16-831.08. However, “[i]f the court concludes

that the parental presumption has not been rebutted by clear and convincing

evidence, the court shall dismiss the third-party complaint and enter any

appropriate judgment in favor of the parent.” D.C. Code § 16-831.07 (d).



      Third, the parental presumption may be waived “when a parent consents to

the relief sought by the third party.”      D.C. Code § 16-831.05 (a).       Read in

conjunction with D.C. Code §§ 16-831.06 (d)(1) and 16-831.11 (c), which

acknowledge a parent‟s statutory option to give revocable consent to a third-party

custody arrangement, this provision only makes sense if the consent given under

D.C. Code § 16-831.05 (a) is irrevocable.
                                         19

      The mother argues that the Superior Court failed to apply the correct law in

its January 2008 order granting custody to the aunt, because the court should have

applied the provisions of Title 8A of Chapter 16 protecting her rights as a parent

instead of the provisions of Title 9 of Chapter 16 governing intra-parental custody

disputes, which contain no such protections. While it seems clear that the Superior

Court did not apply the correct law, that is not, and cannot be, the issue before us.

The mother never appealed the 2008 custody order. The only orders that are

before this court are the Superior Court‟s 2012 and 2013 orders resolving the

mother‟s fourth motion to modify custody.



      The question thus becomes whether the parental presumption that is

statutorily acknowledged in proceedings to transfer custody of a child from a

parent to a third party may be considered in modification of custody proceedings

conducted pursuant to D.C. Code § 16-831.11. The mother argues the parental

presumption should have been applied in the consideration of her fourth motion for

modification of custody, because she did not knowingly and intelligently waive

this presumption at the December 2007 hearing. Amicus defends the Superior

Court‟s determination that the parental presumption does not apply in custody

modification determinations under D.C. Code § 16-831.11. Moreover, going a

step beyond the Superior Court—which found that the mother had knowingly
                                        20

consented to a permanent custody transfer to the aunt9—amicus argues that there is

no statutory requirement that waiver of parental rights must be knowing and

intelligent, and that the parental presumption would not apply at the modification

stage even if the mother had not knowingly or intelligently consented. We review

these questions of law de novo. District of Columbia v. Morrissey, 668 A.2d 792,

796 (D.C. 1995) (noting this court conducts de novo review where “[t]he

construction of a statute raises a clear question of law.” (internal quotation marks

omitted)).



      We begin with the text of D.C. Code § 16-831.11,10 governing modification

of third party custody orders. It contains three subsections, none of which make

any mention of the parental presumption. Subsection (a) sets forth the standard


      9
           Judge Irving appears to have understood waiver of the parental
presumption to require knowing and intelligent consent. His order with regard to
the application of the presumption hinged in large part upon his determination that
“after sufficient and patient inquiry,” Judge Saddler was “satisfied that [the
mother] understood that the [c]ustody [o]rder [would be] permanent, and that [she]
would have to return to Court to obtain a change.” He found that the mother
“indicated more than once that she understood, and maintained her consent,” and
further, that there was “no indication on the record that [she] did not consent to
[the aunt] having custody of the minor child.”
      10
         Morrissey, 668 A.2d at 797 (“[I]f the words are clear and unambiguous,
we must give effect to its plain meaning.” (internal quotation mark omitted)); see
also Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C.
1983).
                                         21

under which modification decisions are made: To modify custody there must be a

“determination that there has been a substantial and material change in

circumstances and that the modification or termination is in the best interests of the

child.”    Subsection (b) places the burden of proof on the party seeking

modification and requires a showing by a preponderance of the evidence. As

discussed above, subsection (c) carves out from the typical modification standard

awards of custody based on revocable consent under D.C. Code § 16-831.06

(d)(1), and provides that modification under such circumstances is self-executing

and not submitted to the court for review; rather, “upon the filing of a revocation

by the consenting parent or the third party,” the agreement of the parties “shall be

immediately vacated and of no further effect.”



       As we read D.C. Code § 16-831.11, unless the custody transfer was made

pursuant to a revocable consent agreement (in which case the parental presumption

remains fully intact and is not relevant to modification because the parent can

unilaterally decide to modify the arrangement), the parental presumption does not

apply at the modification stage. A parent seeking to regain custody awarded to a

third party enjoys no special status and must bear the burden of proof when

seeking to modify an order. The only statutory concern under these circumstances

is the best interest of the child.
                                          22

      This makes sense against the backdrop of D.C. Code §§ 16-831.05 and 16-

831.06.11 If a parent‟s statutory presumption has already been rebutted (pursuant

to D.C. Code § 16-831.06) or waived after a parent gives her irrevocable consent to

the custody transfer (pursuant to D.C. Code § 16-831.05 (a)), there is no need to

revive the parental presumption at the modification stage. To do so would seem

contrary to the clear legislative intent to give parents heightened protection when

initial custody transfer decisions are made, but to make determinative the best

interest of the child after custody has been transferred to a third party.



      The mother clarified at oral argument before this court, however, that her

argument is not that the parental presumption must always be considered in

modification determinations, but only when a parent, like her, does not knowingly

and intelligently give irrevocable consent to a custody transfer. We find this

argument compelling.



      Again, we note that the statute was written with a strong desire to protect the

rights of parents, requiring that for other-than-revocable consent transfers the

      11
           See In re T.L.J., 413 A.2d 154, 158 (D.C. 1980) (“a statute should be
interpreted as a harmonious whole” (quoting United States v. Firestone Tire &
Rubber Co., 455 F. Supp. 1072, 1079 (D.D.C. 1978)) (internal quotation mark
omitted)).
                                          23

statutory presumption be rebutted or waived at the outset. It would make little

sense, however, to provide robust protection for parental rights for the former

mechanism for disposing of the parental presumption—requiring the third party

seeking custody of the child to bear the high burden of rebutting the parental

presumption by clear and convincing evidence—but to provide only weak

protection with the latter, by liberally recognizing irrevocable consent-based

waivers without assurance that those waivers were knowing or intelligent.12



      Ultimately our analysis turns on the language of D.C. Code § 16-831.05,

which provides that the parental presumption has no application “when a parent

consents to the relief sought by the third party.”       In our view, this statutory

      12
          We note that in other states where the transfer of custody to non-parent
third parties is permitted, the valid waiver of parental rights is premised on a
meaningful understanding of the effects of their actions. For example, the
Tennessee Supreme Court has emphasized “that a parent‟s voluntary
relinquishment of custody must be made with knowledge of the consequences of
that decision,” asserting that where a natural parent does so “without knowledge of
the effect of that act, then it cannot be said that these rights were accorded the
protection demanded by the Constitution. As such, application of the [parental
presumption] in a subsequent modification proceeding would be justified.” Blair
v. Badenhope, 77 S.W.3d 137, 147 n.3 (Tenn. 2002). Similarly, the Alaska
Supreme Court explained that it did not “disfavor the practice of vesting custody
temporarily in a nonparent until a parent can get his or her life sufficiently together
to resume custody,” but noted that “[c]ourts should make clear whether a grant of
nonparental custody is temporary or permanent, and ensure that they carefully
warn a parent that a hearing may have the latter result.” C.R.B. v. C.C., 959 P.2d
375, 381 n.12 (Alaska 1998).
                                           24

language conclusively indicates that, to give irrevocable consent to a third-party

custody transfer and thereby effect a valid waiver of the parental presumption,

there must be a meeting of the minds between the parent and the third party

regarding “the relief sought.”      Id.    Clearly, if a parent believes that she is

consenting to a provisional custody arrangement, but the third party is seeking a

permanent custody transfer, the parent is not providing irrevocable “consent[] to

the relief sought by the third party.”13



      Reviewing the transcript of the December 2007 hearing, the Superior Court

in this case made the factual determination that the mother knew she was agreeing

to permanently relinquish custody of T.P. to her sister and Judge Saddler




      13
           As previously discussed, we recognize that the fundamental right to
parent has constitutional underpinnings. See Troxel v. Granville, 530 U.S. 57, 87
(2000) (“Our cases leave no doubt that parents have a fundamental liberty interest
in caring for and guiding their children . . . . [and] our cases applying this principle
have explained that with this constitutional liberty comes a presumption (albeit a
rebuttable one) that „natural bonds of affection lead parents to act in the best
interests of their children.‟” (quoting Parham v. J.R., 442 U.S. 584, 602 (1979)));
Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing “[t]he fundamental
liberty interest of natural parents in the care, custody, and management of their
child”). Given the statutory foundation for our analysis, however, we do not assess
the impact of these constitutional principles on this case. Blodgett v. Univ. Club,
930 A.2d 210, 217 (D.C. 2007).
                                          25

adequately apprised her of the consequences of her consent.14 We conclude that

this factual determination was plainly wrong and without evidence to support it.15



      The transcript of the December 2007 custody hearing indicates that the

mother, appearing pro se, did not intend to permanently give up custody of T.P. to

the aunt. Although Judge Saddler told the mother that the order would “say

permanent,” she immediately undercut this admonition by stating that it “does not

mean forever,” and informing the mother she could file a modification motion.

Moreover, from the mother‟s subsequent statements on the record, it is apparent

that she thought that she was consenting to a temporary arrangement and that she

intended to file a modification motion as soon as she completed treatment, within a

year. Indeed, the aunt, whom the court allowed to engage in a lengthy dialogue in

open court with the mother, was integral in leading the mother to believe that she

would only have custody of T.P. temporarily. The aunt repeatedly reassured the


      14
          Judge Saddler made no such factual findings in her order: She simply
found that the mother “testified that [the aunt] can devote her full time and
attention to the minor child,” and noted in her discussion of the D.C. Code § 16-
914 best interests analysis that the mother “wish[ed] for the [aunt] to have custody”
of T.P.
      15
           Hernandez v. Banks, 84 A.3d 543, 552 (D.C. 2014) (“We review bench
trials both as to the facts and the law, but may not set aside a trial court‟s judgment
„except for errors of law unless it appears that the judgment is plainly wrong or
without evidence to support it.‟” (quoting D.C. Code § 17-305 (a) (2012 Repl.))).
                                          26

mother that when the mother “complete[d] the program” she could “have [her]

baby back,” because T.P. needed to be with the mother.



      Relatedly, the mother did not understand the consequences of giving her

consent to a transfer of custody to the aunt. Certainly the mother understood that

she would need to take certain steps to regain custody of T.P.: she needed to “get

[herself] together,” and she needed to file a motion.         Indeed, Judge Saddler

imprecisely informed her that that was “all you have to do.” But the mother does

not appear to have understood that these steps would not be pro forma and that

custody of T.P. would not immediately be returned to her upon taking such actions.

In particular, she does not appear to have understood that she was permanently

losing her special status as parent to maintain custody of her child, and thus, that in

order to regain custody of T.P. she would have to prove to the satisfaction of the

court not only that she met the aforementioned goals constituting “a substantial and

material change in circumstances,” but also that it would be in her daughter‟s best

interests to be returned to her care. See D.C. Code § 16-831.11 (a).



      The mother does not appear to have understood this, because, the Superior

Court‟s finding notwithstanding, Judge Saddler never so advised the mother.

Although the Superior Court found that Judge Saddler indicated “that [the
                                        27

mother‟s] written request would not necessarily result in an automatic grant, but

would require a hearing and a best interest determination,” in fact, contrary to the

Superior Court‟s findings, there was no mention at the December 2007 hearing that

that any modification motions filed by the mother would turn solely on what a

court deemed was in the “best interests of the child.”        Meanwhile, the aunt

indicated that she would not oppose an effort by the mother to regain custody and

that she and the mother would petition the court “together” to make this happen.16



      To assess the mother‟s understanding of the nature and consequences of her

consent to a custody transfer, we look not only to what was said (and unsaid) at the

December 2007 hearing, but also to what the mother did afterwards. As instructed,

she filed repeated motions to modify the custody order, in which she asserted that

she had successfully completed treatment and gotten her life back together, but that

although she had upheld her end of the bargain, the aunt had “betray[ed] [her]

trust.” In so doing, the mother reflected her understanding that the transfer of



      16
          To the extent the Superior Court relied on Judge Saddler‟s January 2008
order to determine that the mother knowingly and intelligently consented to an
unconditional custody transfer, this gives us further cause for concern. The 2008
order simply does not capture what the mother said at the hearing or the qualified
nature of her consent.
                                         28

custody had not been permanent and that she thought she had an enforceable

agreement with her sister to have T.P. returned to her.



      Accordingly, we determine that the mother did not knowingly and

intelligently consent to a permanent transfer of custody as the statute requires.

And because there was no meaningful consent, the parental presumption must be

applied, for the first time, in the Superior Court‟s resolution of the mother‟s fourth

motion to modify custody. Unless the parental presumption is rebutted on remand

(or unless the mother conveys new legitimate consent to the aunt‟s continued

custody of T.P.), the mother‟s motion for modification may not be denied.17



      17
          The mother argues in the alternative that there is no need for her to seek
modification of the third party custody order because, in fact, she had a revocable
consent agreement pursuant to D.C. Code § 16-831.06 (d). But the mother did not
cite this provision of the statute nor raise this issue below until she moved for
reconsideration of the Superior Court‟s order declining to incorporate the parental
presumption under D.C. Code § 16-831.05 in its custody modification decision
under D.C. Code § 16-831.11. Even as she invoked the revocable consent
provisions of the third party custody statute, the mother acknowledged that her
consent agreement was not unilaterally revocable as contemplated by D.C. Code
§ 16-831.06 (d) and D.C. Code § 16-831.11 (c), but instead was an (extra-legal)
conditional consent agreement, subject to revision by the Superior Court. In this
court, the mother continues to acknowledge that her agreement “was to be revisited
by the [c]ourt for determination of fulfillment of its conditions.” Although, as
explained above, we conclude that the agreement struck between the mother and
the aunt preclude this court from determining that the mother consented to an
irrevocable permanent custody transfer and that she knowingly and intelligently
waived the parental presumption, we cannot agree that the mother entered into a
                                                                      (continued…)
                                           29

      We conclude by emphasizing that we do not intend for this decision to give

a green light to parents seeking to upend truly consensual irrevocable custody

transfers to nonparent third parties. In other words, we do not herein accord

parents the right to revive in modification proceedings a legitimately waived

parental presumption. We presume that the facts of this case are exceptional, and

moreover, that in the future the Superior Court will both ensure that parents,

particularly those proceeding pro se, understand the special status they relinquish if

they give irrevocable consent to a transfer of custody to a third party, and

understand how their consent fundamentally alters the child custody calculus going

forward. Consent knowledgeably and intelligently given will permanently waive a

parent‟s statutory parental presumption.



      For the reasons set forward above, we reverse the Superior Court‟s order

denying the mother‟s motion to modify custody and remand the case for further

proceedings consistent with this opinion.



                                                    So ordered.



(…continued)
revocable consent agreement within the meaning of D.C. Code § 16-831.06 (d) and
D.C. Code § 16-831.11 (c).
