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                            District of Columbia
                             Court of Appeals
                                                                   FEB. 8, 2018
Nos. 17-FS-934, 17-FS-935, & 17-FS-1016

IN RE Sa.C., Ch.Y., & K.C.;
          S.C.,       Appellant.                          2015 NEG 147
                                                          2015 NEG 148
                                                          2012 NEG 138

BEFORE:     Beckwith and Easterly, Associate Judges, and Washington, Senior
            Judge.

                                  ORDER
                           (FILED – February 8, 2018)

       In this neglect case, S.C. appeals from a permanency goal change from
reunification to adoption, made after an evidentiary hearing held pursuant to In re
Ta.L., 149 A.3d 1060 (D.C. 2016) (en banc). On consideration of the motion to
dismiss or, in the alternative, motion for summary affirmance filed by the guardian
ad litem (GAL) for the minor children; S.C.‘s opposition to the GAL‘s motion; the
District of Columbia‘s motion to dismiss or, in the alternative, motion for summary
affirmance; S.C.‘s brief and appendix; and the record on appeal; and it appearing
the GAL requested a published decision on the retroactive application of In re
Ta.L.; and it further appearing a published order will aid both lawyers and judges
in handling neglect cases; it is

      ORDERED that the GAL‘s and the District‘s motions to dismiss are hereby
denied.

       Prior to the issuance of this court‘s en banc decision in In re Ta.L., the
magistrate judge presiding over this neglect case summarily changed the
permanency goals of S.C.‘s three minor children from reunification to adoption.
After the issuance of In re Ta.L., the magistrate judge, upon S.C.‘s motion, held an
evidentiary hearing pursuant to In re Ta.L. to consider whether the permanency
goal should be changed. Thereafter, the magistrate judge issued a written order
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Nos. 17-FS-934, 17-FS-935, & 17-FS-1016

analyzing the evidence in light of the standards announced in In re Ta.L. and again
determined that the permanency goal should be changed to adoption. S.C. filed a
motion for judicial review, and the reviewing associate judge affirmed. S.C. then
filed these consolidated appeals. After S.C. filed her brief, the GAL and the
District moved for dismissal based on perceived errors in the magistrate judge‘s
decision to hold what the parties and the Superior Court appear to uniformly call a
―retroactive‖ evidentiary hearing. We hold that the magistrate judge did not err in
following the procedure set forth in In re Ta.L. for permanency goal changes and
holding such a hearing.1

       This court has adopted the ―firm rule of retroactivity,‖ see Davis v. Moore,
772 A.2d 204, 230 (D.C. 2001) (en banc), which requires it to apply a new judicial
decision to any case pending in the trial court or on direct appeal. As S.C.‘s
neglect case was still being litigated in the trial court when In re Ta.L. was issued,
the trial court properly sought to follow In re Ta.L. in making its decision to
change the permanency goal from reunification to adoption.2

       Despite the GAL‘s and the District‘s arguments to the contrary, the initial
adverse change in the permanency goal from reunification to adoption did not
become final under Davis such that In re Ta.L. had no application to this case. The
GAL and the District highlight S.C.‘s failure to appeal the initial permanency goal
change, but this fact has no bearing on the retroactivity analysis under Davis. For
purposes of a retroactivity analysis, finality occurs at the time of entry of a final
judgment concluding litigation in a case. See Davis, 772 A.2d at 226 (―[A]ll newly
declared rules of law must be applied retroactively to all criminal cases pending on
direct review or not yet final — ‗with no exception for cases in which the new rule
constitutes a ‗clear break‘ with the past.‘‖) (internal footnote omitted) (quoting
Griffith v. Kentucky, 479 U.S. 314, 328 (1987)); Davis, 772 A.2d at 226 n.20
(defining ―final‖ as the point ―in which a judgment of conviction has been

      1
        We express no view on the merits of the decision to change the
permanency goal from reunification to adoption.
      2
          At the time the magistrate judge held the evidentiary hearing regarding
changing the permanency goal, no proceedings had been initiated to terminate
S.C.‘s parental rights. We acknowledge that the termination of a parent‘s rights is
not contingent on a permanency goal change, and we do not address what impact
In re Ta.L. has on cases still pending in the trial court or this court where the
permanency goal was changed without the requisite evidentiary hearing but the
parent‘s rights have been terminated.
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Nos. 17-FS-934, 17-FS-935, & 17-FS-1016

rendered, the availability of appeal exhausted, and the time for a petition for
certiorari elapsed or a petition for certiorari finally denied‖) (quoting Griffith, 479
U.S. at 321 n.6); see also Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97
(1993) (―When this Court applies a rule of federal law to the parties before it, that
rule is the controlling interpretation of federal law and must be given full
retroactive effect in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate our announcement of the
rule.‖).

       Similarly, the law of the case doctrine does not inform our retroactivity
analysis under Davis. The law of the case doctrine reflects distinct concerns about
relitigating issues based on the same legal and factual backdrop and is, in any
event, discretionary. See Kleinbart v. United States, 604 A.2d 861, 866 (D.C.
1992) (the law of the case doctrine ―merely expresses the practice of courts
generally to refuse to reopen what has been decided and is not a limit to their
power‖) (internal quotation omitted); Minick v. United States, 506 A.2d 1115, 1117
(D.C. 1986) (―The doctrine of the law of the case conserves judicial time and
resources by discouraging multiple attempts to prevail on a single question‖). An
order changing a permanency goal may become law of the case, but even under
that doctrine, a trial court may reconsider or depart from a prior final ruling if
reconsideration is justified because of a material change in the facts or the law.
See In re Baby Boy C., 630 A.2d 670, 678 (D.C. 1993) (explaining that a trial
court‘s ruling is generally binding unless it is ―clearly erroneous in light of newly
presented facts or a change in substantive law‖) (quoting Minick, 506 A.2d at
1117).

       The GAL‘s argument that this court ―chose‖ in In re Ta.L. not to
retroactively apply its decision is flawed. Nothing in In re Ta.L. suggests the en
banc court did not intend its holding regarding permanency goal changes to apply
to neglect cases still pending in the Superior Court; nor, in light of our ―firm rule of
retroactivity‖ under Davis, can our silence on this point be read as leaving the issue
subject to question. See Davis, 772 A.2d at 231-32 (―The Supreme Court did not
‗rethink retroactivity‘ and reject the Linkletter–Stovall–Chevron doctrine in favor
of a ‗firm rule of retroactivity‘ only to revert back to that doctrine every time it has
to decide whether to apply a new rule of law to the parties before it.‖).3

      3
        In Linkletter v. Walker, 381 U.S. 618 (1965), and its progeny—Stovall v.
Denno, 388 U.S. 293 (1967), and Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)—
the Supreme Court employed a case-by-case balancing test to decide whether a
new rule of law applied retroactively.
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Nos. 17-FS-934, 17-FS-935, & 17-FS-1016


      Finally, we reject the argument that S.C. could not immediately appeal the
new permanency goal change order. Because this order (1) followed an
evidentiary hearing held pursuant to In re Ta.L., (2) approved a change in the
permanency goal from reunification to adoption, and (3) superseded any prior
order changing the permanency goal, S.C. was entitled to an immediate appeal.
See In re Ta.L., 149 A.3d at 1076 (―[A] change in the permanency goal of a neglect
case from reunification to adoption is an order subject to immediate appellate
review.‖).

      Addressing the GAL‘s and the District‘s alternative requests for summary
affirmance, it is

     FURTHER ORDERED that these requests are denied. See Oliver T. Carr
Mgmt., Inc. v. Nat’l Delicatessen, Inc., 397 A.2d 914, 915 (D.C. 1979). It is

       FURTHER ORDERED that the GAL and the District shall, within ten days
of the date of this order, advise this court if they intend to file their motions as their
briefs. Alternatively, the GAL and the District shall, within thirty days of the date
of this order, file their briefs.

                                    PER CURIAM
