                            District of Columbia
                             Court of Appeals
No. 14-FS-1310                                                         MAR 17 2016

IN RE: PETITION OF G.A.P.;
      R.S.,
                                   Appellant.
                                                               ADA-200-13


                           On Appeal from the Superior Court
                               of the District of Columbia


       BEFORE: BLACKBURNE-RIGSBY and THOMPSON, Associate Judges; and FERREN,
Senior Judge.


                                    JUDGMENT


               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and for the reasons set forth in
the opinion filed this date, it is now hereby

              ORDERED and ADJUDGED that the judgment of the trial court is
affirmed.

                                                 For the Court:




Dated: March 17, 2016.


Opinion by Senior Judge John M. Ferren.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS
                                                                           3/17/16
                                  No. 14-FS-1310

                            IN RE PETITION OF G.A.P.;
                                               R.S., APPELLANT.

                      Appeal from the Superior Court of the
                              District of Columbia
                                (ADA-200-13)

                     (Hon. Janet Albert, Magistrate Judge)
                  (Hon. Hiram E. Puig-Lugo, Reviewing Judge)

(Argued January 13, 2016                                 Decided March 17, 2016)

      Lisa Orlow for appellant.

      Joseph L. Meadows, with whom Daniel Forman and Jonathan M. Krell,
were on the brief, for appellees G.A.P. and Guardian Ad Litem.

       Karl A. Racine, Attorney General for the District of Columbia, with whom
Todd S. Kim, Solicitor General, Loren L. Alikhan, Deputy Solicitor General, and
Jennifer V. Hancock, Assistant Attorney General Office of the Solicitor General,
for the District of Columbia, filed a statement in lieu of brief.

     Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and
FERREN, Senior Judge.

      FERREN, Senior Judge: Following a bench trial, the magistrate judge found

the minor child, J.P., suitable for adoption by appellee, G.A.P., after waiving the

required consent of J.P.’s biological parents. An associate judge reviewed the
                                         2

magistrate judge’s order for “errors of law, abuse of discretion, or clear lack of

evidentiary support” and affirmed.1      Appellant R.S., J.P.’s biological mother,

appeals the order terminating her parental rights and granting G.A.P.’s adoption of

J.P. For the reasons set forth below, we affirm.


                                         I.


      In January 2011, when J.P. was only a few months old, R.S. left him in the

care of an acquaintance. While there, J.P. suffered severe burns to his posterior

upper extremities, back, and gluteal regions. J.P. was airlifted to Shriners Hospital

for Children in Boston to receive intensive treatment. Immediately after returning

from Shriners, J.P. was placed in foster care by the Child and Family Services

Agency (CFSA), and the District of Columbia filed a petition alleging that J.P. was

a neglected child. On March 17, 2011, R.S. stipulated that she had not provided

J.P. with proper care. The court found J.P. to be a neglected child pursuant to D.C.

Code § 16-2301(9)(A)(ii) (2012 Repl.).




      1
          In re C.L.O., 41 A.3d 502, 510 (D.C. 2012). In this court’s review of a
trial court order reviewing a magistrate judge’s ruling, we interchangeably refer to
the Superior Court judge who reviews the magistrate judge as the “reviewing
judge,” the “associate judge,” or the “trial judge” (or “trial court”).
                                         3

       At a disposition hearing on March 31, 2011, the court set the goal of

reunification of J.P. with R.S., and CFSA offered services to R.S. to achieve that

end.   R.S. has been diagnosed with bipolar disorder for which she requires

medication. She also has a history of domestic violence with both her prior

husband (J.P.’s father) and her current husband.       In addition, R.S. has been

diagnosed with cannabis dependence. At a review of the disposition order on July

7, 2011, the court ordered R.S. to continue to take her medication, attend domestic

violence counseling, and follow through with individual therapy.



       At a permanency hearing held on March 28, 2012, the court changed the

goal from reunification to guardianship because R.S. had not made sufficient

progress in therapy, substance abuse treatment, and domestic violence counseling.

Of particular note, R.S. had “fail[ed] to take medication consistently or participate

in therapy” for her bipolar disorder, asserting that she did not have an illness. The

court had also ordered R.S. to participate in weekly drug testing, which she failed

to attend on 26 occasions. R.S. had also tested positive for marijuana at least 18

times, and on four occasions R.S. attempted to conceal her drug use through “water

loading.”
                                           4

      In August 2013, CFSA placed J.P. in foster care with appellee, G.A.P., who

filed for adoption on October 15, 2013. On November 12, 2013, seeking to update

her 2012 psychological assessment, R.S. filed “Mother’s Ex Parte Motion For An

Independent Evaluation to Assess Mother’s Parenting Ability.” A magistrate judge

denied the motion in chambers on January 31, 2014, because a motion for relief ex

parte was “inappropriate.” R.S. renewed the motion on February 18, 2014, and

served all parties two days later. It was denied on the merits, without explanation,

on February 26, 2014.



      In the meantime, on November 18, 2013, the magistrate judge had changed

the permanency goal from guardianship to adoption over the objection of R.S. The

trial on G.A.P.’s petition to adopt J.P. took place intermittently the following

spring from early March to late May of 2014. In her opinion of June 30, 2014, the

magistrate judge found clear and convincing evidence that R.S. was withholding

consent to the adoption contrary to J.P.’s best interests and accordingly ruled that

“the consent of the biological parents will be waived.”2 The judge based her

conclusion on findings that R.S. could not provide a stable home because of her

      2
          The magistrate judge waived the consent of J.P.’s father, S.S., based on
her finding of “clear and convincing evidence that [S.S.] abandoned [J.P.] and
voluntarily failed to contribute to his support” for the six months preceding the
date of the filing of the adoption petition. S.S. filed a statement in lieu of a brief in
which he chose to make no representations regarding this appeal.
                                          5

failure to refrain from substance abuse, the presence of domestic violence, her

untreated mental illness, and her failure to engage with support services provided

by CFSA. The judge then concluded that J.P. was “clearly fit to be adopted,” that

adoption was “in the best interest of” J.P., and that G.A.P. was “a suitable

caretaker.” On October 24, 2014, the reviewing judge affirmed the judgment

“grant[ing] [G.A.P.’s] petition for adoption.”



                                         II.



      R.S. raises three issues on appeal. First, she argues that the trial court, in

waiving her consent to the adoption, did not consider the “parental presumption” of

fitness in her favor. Second, she challenges the trial court’s decision to deny her

request for an updated, independent mental health evaluation. Third, she argues

that her use of marijuana, which to some extent has been legalized in the District of

Columbia, is not “drug related activity” within the meaning of D.C. Code § 16-

2353(b)(v) and, therefore, should not have been considered a factor in determining

whether her parental rights should be terminated and her consent to adoption

waived. (R.S. did not question G.A.P.’s fitness to adopt J.P.)
                                          6


                                         III.



      “The determination of whether a birth parent’s consent to the adoption of a

child has been withheld contrary to the child’s best interest is confided to the trial

court’s sound discretion.”3 After a magistrate judge issues findings, conclusions,

and a final decree of adoption, an associate judge reviews them, if appealed.4 If the

associate judge affirms the decree, this court will take the approved findings as

findings of the trial court and review them for “abuse of discretion or a clear lack

of evidentiary support,” while claimed errors of law are reviewed de novo.5



                                         IV.



      As a general rule, a court may not grant a petition for adoption without the

written consent of the child’s living, natural parents.6 However, the trial court may


      3
          In re C.LO., 41 A.3d at 510 (citing In re D.H., 917 A.2d 112, 117 (D.C.
2007).
      4
          Id.
      5
          Id.; accord In re J.J., 111 A.3d 1038, 1043 (D.C. 2015).
      6
          D.C. Code §§ 16-304 (a), (b)(2)(A); In re C.L.O., 41 A.3d at 510.
                                           7

waive this requirement upon a finding, based on clear and convincing evidence,

that a parent has withheld consent contrary to the best interest of the child.7 The

best interest analysis applies the same factors used in proceedings to terminate

parental rights (TPR) pursuant to D.C. Code § 16-2353(b):8



              (1) the child’s need for continuity of care and caretakers
              and for timely integration into a stable and permanent
              home, taking into account the differences in the
              development and the concept of time of children of
              different ages;

              (2) the physical, mental and emotional health of all
              individuals involved to the degree that such affects the
              welfare of the child, the decisive consideration being the
              physical, mental and emotional needs of the child;

              (3) the quality of the interaction and interrelationship of
              the child with his or her parent, siblings, relative, and/or
              caretakers, including the foster parent;

              (4) to the extent feasible, the child’s opinion of his or her
              own best interests in the matter; and

              (5) evidence that drug-related activity continues to exist
              in a child’s home environment after intervention and
              services have been provided. . . . Evidence of continued
              drug-activity shall be given great weight.




      7
          Id. at 510-11.
      8
          In re P.S., 797 A.2d 1219, 1223 (D.C. 2001).
                                          8

      In applying these TPR factors, the trial court should “begin[] by recognizing

‘the presumption that the child’s best interest will be served by placing the child

with his natural parent, provided the parent has not been proven unfit.’”9 This

presumption — that the natural parent, presumably fit, should be the child’s lawful

custodian — will then be confirmed or rebutted by the court’s consideration of “the

parent’s intention and ability over time to provide for a child’s wellbeing and meet

the child’s needs[,]10 . . . in a way that does not endanger the child’s welfare.”11 In

our recent decision in S.L.G., we instructed the trial court, when applying this

parental presumption, to test its viability by “determin[ing] expressly whether [the

court’s] findings [based on each relevant factor] suffice either to show an unfitness

on the part of the parent to remain in a parental relationship with the child[,] or to


      9
           In re C.L.O., 41 A.3d at 511 (quoting In re S.M., 985 A.2d 413, 417 (D.C.
2009)).
      10
           In re S.L.G., 110 A.3d 1275, 1287 (D.C. 2015).
      11
          Id. (quoting In re Adoption/Guardianship of Rashawn H., 937 A.2d 177,
191 (Md. 2007)). In S.L.G., we observed: “The same statutory factors that guide
the court’s determination of a child’s best interest in a TPR or contested adoption
proceeding, therefore, also guide the court’s assessment in that proceeding of the
natural parent’s fitness vel non.” We also stressed, however, that parental “fitness”
is not merely a restatement of the “best interests of the child,” as determined by a
TPR or contested adoption proceeding. “Fitness,” rather, is an independent
determination of parental “intention and ability over time,” guided not only by
application of the TPR factors but also by additional considerations, as needed
(with examples given) to resolve the natural parent’s capacity to “care for the
child” and protect the child against “undue risk of harm.” Id.
                                          9

constitute an exceptional circumstance that would make a continuation of the

parental relationship detrimental to the best interest of the child,”12 even though the

parent, as a general matter, could not be found unfit. Moreover, we stressed that

the trial court will not fulfill this responsibility for explicitness through mere

“verbal allowance that the presumption exists,” followed by cursory recitation of

evidence relevant to each factor coupled with “a conclusory, ‘totality-of-the-

circumstances’ determination” purporting to justify the trial court’s waiver of

parental consent.13     In sum, the trial court “must correctly and explicitly

‘incorporate the parental presumption into its analysis.’”14



      After saying all that, however, we acknowledged in S.L.G. that “a mere

failure to use the particular terminology of ‘fitness’” is not necessarily “fatal by

itself.”15 We acknowledged that the “omission of an explicit statement that a


      12
           Id. at 1289 (quoting In re Adoption/Guardianship of Rashawn H., 937
A.2d at 192) (emphasis added). In a brief concurring opinion, Senior Judge
Newman wrote: “While I join the court’s opinion, I write separately to state that
my fertile imagination is not able to postulate a realistic factual situation where a
‘fit’ parent can be properly deprived of parental rights based on the ‘best interest of
the child.’ However, on the premise that virtually anything is ‘possible,’ I join.”
      13
           Id.
      14
           Id. (quoting In re D.S., 88 A.3d 678, 697 (D.C. 2012)).
      15
           Id.
                                        10

natural parent is ‘unfit’ may be of no moment if there are equivalent findings,

supported by the evidence, that the parent lacks the capacity or motivation to meet

the child’s needs or protect the child from harm.”16 In the present case, apparently

recognizing that the trial court did not explicitly employ “fitness” terminology,

appellee G.A.P. stresses that the trial court relied on “equivalent findings” that

satisfy the explicitness requirement. R.S., however, has not challenged the trial

court’s waiver of her consent to adoption on the ground that the court’s findings

lack the required equivalency.       Nonetheless, she squarely challenges the

termination of her parental rights through a court-ordered waiver of her statutory

right to consent to adoption of J.P. And, she has questioned certain findings to a

point that we must, in the end, judge her appeal in the light of S.L.G.’s strict

standard.


                                        V.


                                        A.



      R.S. argues that the trial court erred in terminating her parental right to

custody of J.P., without applying the “parental presumption” of fitness. To the

      16
         Id. (emphasis added); accord In re J.J., 111 A.3d at 1045 (affirming trial
court’s waiver of natural parent’s consent to adoption based on “equivalent
findings” that parent was unfit).
                                           11

contrary, the magistrate judge, whose findings and conclusions were confirmed by

the reviewing judge, acknowledged in the first sentence of her Conclusions of Law

“the presumption . . . that a child’s [best] interests will be served by being with his

or her [natural] parent.”17 In applying the presumption, however, the magistrate

judge (ruling before our decision in S.L.G.) did not “expressly” determine whether

R.S. was — or was not — “fit” to resume custody of J.P. To justify termination of

R.S.’s parental rights, therefore, the trial court’s findings must be “equivalent” to

findings that would support a conclusion of law, based on statutory TPR criteria,

that R.S. was not fit to retain J.P. as her son.




      The magistrate judge issued 97 detailed findings of fact, followed by 10½

pages with comprehensive conclusions of law, applying TPR factors (1), (2), (3)

and (5). (Factor (4) was irrelevant given J.P.’s young age.) On review, the

associate judge concluded that “the [magistrate judge] did not abuse [her]




      17
          The court cited In re S.G., 581 A.2d 771, 785 (D.C. 1990). Counsel for
G.A.P. argues that because R.S. “never raised” the parental presumption at trial,
that issue “is not properly before” this court, citing In re H.B., 855 A.2d 1091,
1096 (D.C. 2004). The magistrate judge, however, recognized that the parental
presumption is inherent in the case and addressed it accordingly.
                                          12

discretion when [she] found clear and convincing evidence to justify terminating

[R.S.’s] parental rights and granted [G.A.P.’s] petition for adoption.”18



      Although R.S. is unable to demonstrate from the record on appeal that the

magistrate judge failed to apply the parental presumption of fitness, she has

challenged on appeal the adequacy of the trial court’s findings, approved by the

reviewing judge, in two (and only two) respects: (1) the court’s failure to justify

the mother’s continuing custody of J.P.’s brother, Ja.S., but not J.P., and (2) the

court’s findings supporting the conclusion that R.S. had “a history of and

continuous use of Marijuana.” But for these two alleged errors, therefore, R.S.

does not dispute that the trial court’s findings are “equivalent” to the level of

“express” findings required (by S.L.G.) to demonstrate, by clear and convincing

evidence, that R.S. is no longer “fit” to retain parental custody of J.P.19


      18
          For the second issue raised by R.S., see supra Part II. — an issue not
addressed directly to particular findings of fact — the reviewing judge concluded
that there was “no basis to reverse the [magistrate judge’s] decision based on the
absence of any additional mental health evaluation.” See infra Part VI.
      19
           Absent a challenge, we need not address the trial court’s other findings.
Having concluded that TPR factor (4) (“the child’s opinion of his or her own best
interests”) is inapplicable because of J.P.’s young age, and concluding below that
factor (5) (evidence of “drug related activity”) was thoroughly evaluated and cuts
very much against R.S.’s continued parental custody of J.P., we briefly add for the
record our reasons why the trial court findings and conclusions as to TPR factors
(1), (2), and (3), constitute equivalent findings of unfitness as required by S.L.G.,
                                                                (continued . . .)
                                          13


                                          B.


      As to the first contention, the fact that Ja.S. has not been removed from

R.S.’s custody, despite CFSA oversight, does not necessarily support a finding that

R.S. is fit to parent J.P. (or Ja.S. for that matter). In fact, R.S. admits in her brief
__________________________________
(. . . continued)
and similarly support, with clear and convincing evidence, the trial court’s decision
to waive R.S.’s parental consent to G.A.P.’s adoption of J.P.:

       (1) (“child’s need for continuity of care and caretakers and for timely
integration into a stable and permanent home”) (e.g., J.P was “removed from his
mother’s care when he was six-months old. He is now four years old. . . . [R.S.]
has not demonstrated an ability to create a safe and stable living environment for
[J.P.] . . . . [R.S.] failed to maintain visitation under consistently safe
conditions. . . . [R.S.] failed to address her own mental health issues . . . . [R.S.]
never demonstrated an understanding of her need to participate in services; . . . .
[J.P.] has lived with [G.A.P.] continuously and without interruption since August
2013 and has thrived in his care”.).

       (2) (“physical, mental, and emotional health of all individuals involved”)
(e.g., “[R.S.] has significant mental and emotional issues that she has not fully
addressed. . . . [R.S.] has been diagnosed with Bipolar Disorder by three different,
unrelated medical professionals. [R.S.] does not believe she has a mental illness.
As a result, she has not consistently attended therapy nor has she been compliant
with her medication management as ordered. . . . Dr. King . . . testified that
individuals with unmanaged bipolar disorder suffer from impairment of daily
functioning and often come to the attention of law enforcement”. . . . [G.A.P.] is in
good physical and mental health.).

       (3) (“quality of the interaction and interrelationship of the child with his or
her parent, siblings, . . . foster parent”) (e.g., J.P. and R.S. “do not have a parent-
child bond. . . . [R.S.] repeatedly demonstrated that everything in her life took
priority over her relationship with her son”; J.P and G.A.P. “have a loving and
bonded relationship. They spend substantial quality father-child time together.”).
                                         14

that Ja.S. has some problems, given his “school absences and occasional discord in

the home.” This admission is based on the magistrate judge’s findings that Ja.S.

had missed 25 days of school during the year, that R.S. was unresponsive to the

school’s expressed concerns about him, and that Ja.S. had been at the center of an

incident of domestic violence, which showed an “inability [of R.S.] to ensure

Ja.S.’s physical safety.” Furthermore, the magistrate judge found that Ja.S. and

J.P., while amicable toward each other, had “limited interaction.” In short, the trial

court’s findings raised serious questions about the care received by Ja.S. from his

mother and discounted J.P.’s relationship with his brother — a situation that cuts

against R.S.’s argument that her custody of Ja.S. supports her fitness to parent J.P.



                                         C.



      Now to marijuana.       The fifth TPR factor, “evidence that drug-related

activity . . . exist[s] in a child’s home environment,” shall be given “great

weight.”20 According to R.S., the trial court erred in “conclud[ing] that drug-

related activity exists in the child’s home.”      R.S. stresses that there was no

evidence that she “was under the influence of any substance while supervising her

children.” The trial court essentially found otherwise. The court had ordered R.S.

      20
           D.C. Code § 16-2353(b)(5).
                                          15

“to submit to weekly drug tests,” but she “failed to show up for [them] at least 26

times since [J.P.] was removed from her care.” Moreover, R.S. “tested positive for

marijuana at least 18 times since [J.P.] has been in foster care,” and drug tests

showed “water loads” on occasion that suggested R.S. had “tried to defeat the drug

testing system to conceal her drug use.”21




      R.S. does not contest these particular findings, and thus the evidence is

strong that she deliberately ignored court-ordered abstinence from drug use as a

condition of her continued custody of J.P. The fact that marijuana may not be a

“hard” drug (as R.S. put it) in comparison with cocaine or heroin, for example, is

beside the point; she does not dispute that she was under court drug-testing orders

intended to interdict all drug-related activity. For that reason as well, the fact that

the District of Columbia had come to legalize recreational use of marijuana under

specified circumstances22 is also beside the point. And in any event, aside from


      21
           Although there was no explicit finding that R.S. was “under the
influence” while supervising her children, Dr. Craig King, the District’s expert
witness in the field of clinical psychology, testified that R.S. was “cannabis
dependent.” See also In re K.L., No. 12-13-00334-CV, 2014 Tex. App. LEXIS
1781, *7 (Tex. App. Feb. 19, 2014) (“A fact finder may reasonably infer from a
parent’s repeated refusals to drug test that the parent was using drugs.”).
      22
            See D.C. Code § 48-904.01(a) (2015 Supp.) (implementing Ballot
Initiative 71, which legalizes, for persons 21 years of age or older, possession, use,
                                                                (continued . . .)
                                         16

asserting that marijuana is not a “hard” drug, R.S. does not explain how her

particular use of that substance would fall within protection of the marijuana

statute she cites.23 Nor does she address the fact that the marijuana legislation

became effective after the magistrate and reviewing judges had ruled.24           Her

marijuana argument accordingly fails.


                                         VI.



      As noted earlier, R.S. raised a second issue before the reviewing judge (who

rejected it),25 and she renews that alleged error here: the magistrate judge’s refusal




__________________________________
(. . . continued)
purchase, or transport of up to two ounces of marijuana; transfer (without
remuneration) of one ounce or less of marijuana; and possession or growth of no
more than six marijuana plants at one’s principal residence).
      23
           See id.
      24
          After conclusion of the adoption proceeding, the magistrate judge issued
her written Findings and Conclusions on June 30, 2014, followed by the reviewing
judge’s Order affirming the adoption on October 24, 2014. The statute legalizing
limited use of marijuana became effective on February 26, 2015. See “Legislative
History of Law 20-153,” D.C. Code § 48-904.01(a) (June 2015 Cumulative Supp.
at 9).
      25
           See supra note 17.
                                         17

to grant R.S.’s motion for a second, independent assessment of her psychological

health and parenting ability. We perceive no abuse of trial court discretion.26



      As R.S. herself has noted, the trial court has discretion to “order additional

mental examinations to be performed by independent experts upon a showing by

any party that a prior examination is inadequate.”27 In our view, R.S. fails to

demonstrate the inadequacy of her psychological assessment by Dr. Craig King,

who not only had provided a written assessment on January 21, 2012, but also

testified at trial on March 5, 2014, subject to cross-examination by counsel for R.S.



      R.S. justifies her contention largely because Dr. King’s evaluation had

occurred over two years before trial of the adoption petition. That rationale, in

itself, is insufficient to demonstrate its inadequacy. The only substantive argument

      26
            In her opening brief on appeal, R.S. also claims a violation of
constitutional due process, citing Supreme Court cases such as Troxel v. Granville,
530 U.S. 57, 65 (2000) (plurality opinion), which noted that the right of parents to
raise their children “is perhaps the oldest of the fundamental liberty interests
recognized by this Court,” and Santosky v. Kramer, 455 U.S. 745, 754 (1982),
which recognized that “[w]hen the State moves to destroy weakened familial
bonds, it must provide the parents with fundamentally fair procedures.” R.S.,
however, does not contend that the trial court’s discretionary administration of the
statute at issue here, D.C. Code § 16-2315(e)(3), is not a fundamentally fair
procedure; her complaint is directed, rather, at the content of Dr. Craig King’s
2012 assessment, not the subject of a due process violation.
      27
           D.C. Code §16-2315(e)(3).
                                          18

in R.S.’s motion was a representation that, because R.S. no longer was living in an

environment of domestic violence and had “made progress in mental health

therapy, specifically, to address her extensive history of being a victim of domestic

violence[,] . . . an updated psychological assessment would show substantial

improvement.” That generalization, however, limited to domestic violence, does

not on its face have much currency, because it does not bear directly on R.S.’s two

most fundamental problems, which the proffer does not address but Dr. King

covers at length: R.S.’s untreated bipolar disorder and her continuing drug abuse.



      R.S. proffered nothing to the magistrate judge to indicate that she had taken

meaningful steps to manage her bipolar disorder — evidence that might have

justified the need for an updated psychological assessment. To the contrary, as the

magistrate judge found, and R.S. does not dispute, R.S. had “fail[ed] to take

medication consistently or participate in therapy for her illness because she [did]

not believe that she ha[d] Bipolar Disorder.”28 With regard to substance abuse,


      28
          R.S. acknowledged on deposition that she was “a depressed person” who
“might need to forever always have someone around to talk to, to consult with, to
make me — you know, help me get through, you know, tough passes in life. . . . I
do not believe I am a bipolar person.” Later, at trial, R.S. testified that she did not
believe she had “mental health issues.” The magistrate judge disagreed, finding
that, including Dr. King, R.S. “ha[d] been diagnosed with or treated for Bipolar
Disorder by three different, unrelated medical professionals.” The magistrate
judge relied on testimony from both R.S. and Dr. King. R.S. acknowledged at trial
                                                                (continued . . .)
                                         19

R.S. does not dispute the findings that she failed to attend weekly drug testing on

26 occasions, failed 18 drug tests, and attempted to conceal drug use through

“water loading.” As to these two fundamental psychological issues, therefore,

there was nothing to update; those issues would remain whether R.S. was free from

domestic violence or not. We cannot gainsay the reviewing judge, who concluded

that R.S., in her motion, “ha[d] not proffered any information about [Dr. King’s]

evaluation, the methodology used, or the examiner’s qualification that would

render inadequate the psychological evaluation used at trial.”



      The reviewing judge also concluded that R.S., in any event, had “failed to

show how the absence of an additional mental health evaluation might have

prejudiced her.” The judge stressed that R.S. had called her own therapist, Sheila

Douglas, as a fact witness, not as an expert, without proffering how Ms. Douglas

would have been inadequate, through qualifications or otherwise, to question Dr.

Craig’s credentials or rebut his evaluation.


__________________________________
(. . . continued)
that she had been diagnosed with bipolar disorder by Community Corrections in
2010 and by Dr. King during his 2012 evaluation. R.S. also testified that she had
been prescribed medication for bipolar disorder by Dr. Todd Christiansen from
September 2013 to April 2014. Dr. King’s report was based on an interview with
R.S. as well as a review of 18 documents, at least seven of which pertain to R.S.’s
mental health, including five documents from Community Corrections.
                                         20


      In her motions before the magistrate judge for an Independent Evaluation to

Assess Mother’s Parenting Ability, counsel explained why R.S.’s personal

therapist would not be called to supply the required expertise to challenge Dr.

King. That therapist, stressed counsel, could not have been used because of R.S.’s

desire not to have “her current therapist . . . deposed by Petitioner[,] in order to

maintain the confidential relationship with her therapist.” In her submissions on

appeal, however, R.S. did not incorporate that point when alleging that the trial

court erred in failing to appoint a second, independent psychological assessment;

that is to say, she does not quarrel with the reviewing judge’s limitation of the

point to evaluating prejudice, not antecedent error.      But even if we were to

characterize it as a claim of error, we would find no merit to it, and, absent error,

no prejudice requiring reversal.29 As noted above, R.S. proffered only a reduced-

domestic-violence rationale to support her motion for a second psychological

assessment — a rationale too weak, indeed ostensibly irrelevant, to show that Dr.

King’s evaluation has become “inadequate,”30 given the ongoing failure of R.S. to

address the bipolar and substance abuse problems that Dr. King confirmed.




      29
           See Johnson v. United States, 398 A.2d 354, 365-66 (D.C. 1979).
      30
           See supra note 25.
                                            21

      If R.S. had either proffered that her personal therapist was unqualified to

provide the assessment, or proffered that her therapist was qualified but

unavailable to provide specified, relevant testimony, then the trial court would

have had to determine whether to appoint a second expert, or to leave R.S. with the

decision whether her therapist should testify as an expert as well as fact witness.

As matters stand, however, R.S. did not force the issue, and thus we can discern no

error and resulting prejudice — no abuse of discretion — in the court’s refusal to

appoint a second, independent expert for R.S.


                                           *****


      Our inquiry, therefore, is at an end. For the reasons set forth above, the

judgment of the trial court is affirmed.



                                                   So ordered.
