Late last week, the D.C. Court of Appeals issued a landmark decision in In re Ta.L., et al., Nos. 11-FS-1217 (D.C. Aug. 22, 2013), a contested adoption case in which Legal Aid submitted an influential amicus brief. At issue was the constitutional “weighty consideration” given to the biological parents’ preference for the placement of their children. In this case, the biological parents supported adoption by the children’s aunt, and the Court was called upon to weigh that preference against a competing adoption petition by the foster family with whom the children had been placed for the three years during the pendency of the litigation.

The case involved eight consolidated appeals. The Court reversed and remanded the Superior Court’s order granting the adoption petition of the foster family. It held that the lower court erred in it application of “weighty consideration” to the competing adoption petition of the biological parents’ preferred caregiver (the aunt).  There was no evidence that the trial court actually did so, and in fact the evidence and the trial court’s findings established that the aunt was a fit caregiver too.  The Court provided clarity on a number of legal principles. 

“Weighty Consideration” Defined.  The Court defined “weighty consideration” to mean evidence that the parents’ choice (the aunt) was “unfit” or “unsuitable” for these children or that the aunt’s adoption of them would be “clearly contrary” to the children’s best interests. The trial court had made no such findings and in fact found the aunt a fit caregiver.  The aunt was present at the birth of the children, present in their lives, and recently adopted their little brother. “Weighty consideration” also affects the burden of proof as the burden is always on the non-preferred caregiver, here the foster family which failed to prove the aunt to be “unfit”.

Potential Harm To Children Caused by Separation from Foster Family Does Not Overcome “Weighty Consideration”. The Court of Appeals rejected the Superior Court’s rationale that potential psychological harms to the children in separating them from the foster family of three years was sufficient to overcome the “weighty consideration” that was constitutionally required for the parents’ preferred caregiver.

One-Sided Attachment or Bonding Studies Useless To Overcome “Weighty Consideration”.  In a significant evidentiary analysis, the Court of Appeals exposed the weak probative utility of expert’s one-sided attachment or bonding studies about the children’s bonds to the foster family with whom they had lived for many years. The Court correctly noted the stacked deck of such expert testimony: that if such evidence were sufficient, given the protracted litigation that typifies these contested proceedings, “nearly all” neglected children would remain with their foster parents, contravening the “weighty consideration” to the parents’ choice.  In the words of the Court, such testimony “did nothing to undermine the presumption favoring the natural parents’ choice of a caregiver because the attachment study did not evaluate the children’s attachment to [the aunt].” There was no evidence that the children were not attached to the aunt, and no evidence that the children could not form attachments to the aunt. Moreover, given the passage of three years with the foster family, the Court emphasized that a meaningful and appropriate comparative bonding study is only one that has been conducted after the parents’ preferred caregiver has been given time to form bonds and attachments.  This common-sense evidentiary implementation of the “weighty consideration” standard will immediately change expert witness practices in the Family Division.

The Problem of Delayed Appellate Review of Child Custody: Questioning Continued Viability of the Non-Appealability of Earlier Orders. Footnote four of the decision addressed another important issue that was the focus of Legal Aid’s amicus brief, prepared with able assistance from David Reiser of Zuckerman Spaeder and Kyle Fiet of Sidley Austin. Our amicus brief highlighted the harmful effect on kids when legal errors in their placement cannot be addressed or corrected until three to five years after the error – and sometimes not at all for lack of an appealable final order. Our brief urged the Court of Appeals to overrule or limit to its facts In re K.M.T. 795 A.2d 688 (D.C. 2002).  That case held non-appealable a change in permanency goal from family reunification to other placement alternatives. Thus, early errors cannot be corrected in a timely manner. Footnote four of In re Ta.L. calls into question the future vitality of that non-appealability holding. The Court noted not only the “strong” policy considerations in our amicus brief, but observed that In re K.M.T. is now “out of step with the overwhelming majority of our sister jurisdictions.”

In light of such strong language from the Court, we urge all Family Court counsel to consider interlocutory appeal of changes in permanency goal orders in appropriate cases. The Legal Aid Society of the District of Columbia is ready and able to assist you.