Neglect procedures are unconstitutional; parents entitled to hearing before permanency goal is changed to adoption

In re Ta.L. (decided December 8, 2016).

Players: En banc opinion by Chief Judge Eric T. Washington; with Associate Judges Glickman, Fisher, and McLeese dissenting but concurring in the judgment; and with Associate Judges Beckwith and Easterly joining in part but dissenting from the judgment.  Tanya Asim Cooper and Joyce Aceves-Amaya for E.A., Leslie J. Susskind for A.H., N. Kate Deshler Gould for A.H. and T.L., and Melanie L. Katsur for R.W. and A.W.  Amici briefs filed by Kelly Venci; PDS; the Children’s Law Center; Legal Aid Society of the District of Columbia; National Association of Counsel for Children; Center for Family Representation, Inc.; Family Defense Center; and multiple law professors.  Trial judge: Neal E. Kravitz.

Summary: We take a brief interlude from criminal law decisions to highlight an important en banc family law decision.  In this case, the Court considered whether the constitutional rights of biological parents to raise their children are effectively protected under the current statutory scheme in neglect cases.  Specifically, appellants contended that “when a trial court changes the goal of a neglect proceeding from reunification to adoption, it informally terminates the pending neglect case and effectively puts the case on an almost unalterable path to adoption without a full evidentiary hearing or recourse to an appeal.”  Slip op. at 22.  Appellants and several amici contended that parents should be able to challenge a trial court’s determination that they are not making sufficient progress toward reunification.  The Court agreed, holding that “a trial court’s grant of a permanency goal change from reunification to adoption over the parents’ objection, without an adjudicatory hearing to determine whether the District has fulfilled its duty to expend reasonable efforts to reunify the family, violates a parent’s procedural due process rights and, therefore, is appealable by the parents as a matter of right.”  Id. at 24.  In doing so, the DCCA overruled In re K.M.T., 795 A.2d 688 (D.C. 2002), which found that a change of permanency goal is not appealable because it is merely a step towards the termination of parental rights or an adoption and is not final.  Now, a change in the permanency goal of a neglect case from reunification to adoption is an order subject to immediate appellate review.  Furthermore, before a court can terminate parental rights, it must first make a finding that the parents are unfit, unless truly exceptional circumstances exist or the parents have otherwise stipulated to their continued unfitness.  Id. at 55.  NG

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