In re W.E.T.
In re W.E.T.
Opinion of the Court
In this adoption case, D.B., the natural mother of the child K.D.B., seeks reversal of the trial court’s order waiving her consent to the adoption. See D.C.Code § 16-304(e) (2001). The adoptive parents, W.E.T. and I.J.T., cross-appeal from the trial court’s order vacating and re-entering the final adoption decree to enable D.B. to file her notice of appeal, which would otherwise have been untimely. We affirm both orders.
I
The Department of Human Services (“DHS”) removed K.D.B. from D.B.’s care when D.B. was arrested for panhandling while K.D.B. was with her. K.D.B. was born in April 1992; at the time of his mother’s arrest in August 1993, he was sixteen months old. After D.B.’s arrest, DHS placed K.D.B. at St. Anris Infant Home. Thereafter St. Anris contacted I.J.T., D.B.’s aunt (KD.B.’s great-aunt), and asked her if she would take care of K.D.B. I.J.T. agreed to do so and, together with her husband, W.E.T., has cared for K.D.B. in her home since January 1994.
During the pendency of the neglect case that arose out of D.B.’s failure to care for her child, D.B. did not attend some of the hearings because of an outstanding warrant for her arrest. Later, D.B. entered into a “service agreement” with her social worker in which she agreed to work toward completing her high school diploma, to participate in mental health therapy and physical therapy, and to undergo drug treatment. However, at the time of the hearing below, D.B. had only partially complied with the terms of the agreement. She was still working on her high school diploma, but she had participated in mental health therapy only until her therapist retired, and had not begun any physical therapy. When asked whether she had “also agreed to participate in drug rehabilitation,” she answered, “I don’t recall that.” Although D.B. did seek drug treatment at the House of Ruth, a private social service agency for women and children, she was removed from the program (according to her testimony) because of her “attitude” after she became involved in a dispute with a staff member.
During the hearing, D.B. admitted that she had had a long history of drug abuse since she was a teenager. POP was her drug of choice, but she also used crack
At the time of the hearing, D.B. had not visited K.D.B. for more than two years. Before that, a court order had authorized her to visit K.D.B. at the home of W.E.T. and I.J.T. on alternate Sunday afternoons. D.B. came to see K.D.B. at these appointed times for a few months, but then her visits became irregular, and around the middle of 1996 they stopped altogether.
When K.D.B. first came to live with W.E.T. and I.J.T., he was small for his age, suffering from asthma, and not verbalizing at a level commensurate with his years. At the hearing, however, I.J.T. testified that he was now an energetic, healthy six-year-old who addressed her and her husband W.E.T. as “Mommy” and “Daddy.” According to the evidence, he has performed well in school (“he is above average in all of [his] academic activities”) and is involved in a variety of family activities with them, including reading, gardening, and participating in the children’s choir at their church. K.D.B. learned to read in kindergarten and has started to read to his younger brother, K.B.
In February 1998 W.E.T. and I.J.T. filed a petition to adopt K.D.B. D.B. opposed the petition. On August 22, 1998, after a two-day hearing, the trial court issued a detailed “Memorandum of Findings of Fact, Conclusions of Law and Order” in which, among other things, the court waived the consent of D.B. to the adoption.
On September 7, 1999, nearly one year later, D.B. moved to set aside the Final Decree and to reissue it in order to permit a timely appeal. As grounds for the motion, counsel for D.B. claimed that he had never received notice of the decree.
D.B. filed a timely notice of appeal from the reissued Final Decree.
II
A. The Duty of Counsel
At oral argument, D.B.’s counsel admitted that he became aware of the entry of the final adoption decree through a chance encounter with counsel for W.E.T. and I.J.T. in a courthouse hallway in early 1999. The motion to set aside the decree, however, was not filed until September of that year, several months later. We are concerned about counsel’s failure to review the docket regularly and to respond with alacrity, as necessary, to new events reflected on that docket. The delay of several months between the moment when counsel became aware of the final decree and the time when he took action is also troubling.
The duty of an attorney to keep apprised of docket entries is well established.
In the practice of law, a lawyer is charged with the responsibility of knowing what is entered upon the dockets, from time to time, in the case in which he is counsel. It is his duty to follow the dockets so as to keep himself abreast of the happenings in his case....
Maryland Metals, Inc. v. Harbaugh, 33 Md.App. 570, 575-576, 365 A.2d 600, 603 (1976); accord, e.g., Pumphrey v. Grapes, 215 Md. 573, 576, 138 A.2d 916, 918 (1958) (“The obligation to follow and consult the docket rests upon counsel, who are charged with notice”); Baltimore Luggage Co. v. Ligon, 208 Md. 406, 421-422, 118 A.2d 665, 673 (1955) (“It is settled that a party to litigation, over whom the court has obtained jurisdiction, is charged with the duty of keeping aware of what actually occurs in the case and is affected with notice of all subsequent proceedings and that his actual knowledge is immaterial”); see also Pryor v. Pryor, 343 A.2d 321, 323 (D.C. 1975) (rejecting claim of excusable neglect based on “lack of knowledge of the entry of judgment occasioned by failure to receive the clerk’s notice”). Likewise, the duties of competence, diligence, and communication are fundamental to the practice of law. See D.C. Rules of Professional Conduct, Rules 1.1,1.3, and 1.4.
While counsel in this case could reasonably rely — to some extent — on the requirement in Adoption Rule 52(b) that the clerk “shall serve on all contesting parties” notice of the granting of a petition for adoption, his failure to receive such notice within a reasonable time after the hearing
Nevertheless, despite these concerns, D.B. has suffered no prejudice — other than delay — because, as we shall now explain, Adoption Rule 60(d) has given her a remedy for counsel’s lack of diligence and has protected her right to appeal from the trial court’s ruling on the merits.
B. The Adoption Rules
On September 11, 1997, the Superi- or Court issued an order promulgating the new Superior Court Adoption Rules. Order, 125 Daily Wash. L. RptR. 1901 (September 29, 1997). The rules were to take effect on October 15, 1997, and were to “govern all proceedings thereafter commenced ....” Id. These new rules apply to all adoption proceedings in the Family Division of the Superior Court, to the exclusion of all other procedural rules not expressly incorporated by the adoption rules. Super. Ct. Adopt. R. I.
Two of those rules are relevant in the case at bar. First, Adoption Rule 52(b) requires notice to all parties that a petition for adoption has been granted or denied by the court. Rule 52(b) states in pertinent part:
The Clerk shall serve on all contesting parties notice that the petition for adoption has been granted or denied, but not the final or interlocutory decree.
In addition, the adoption rules establish a procedure for challenging a final adoption decree in certain circumstances. Adoption Rule 60(d) states:
A motion seeking to invalidate a decree of adoption by reason of a jurisdictional or procedural defect shall be filed within one year following the date the final decree became effective.
These two rules govern the controversy here.
D.B. sought relief from the Final Decree of Adoption by filing a motion on September 7, 1999, within the one-year period allowed under Rule 60(d).
W.E.T. and I.J.T. now argue that the lack of notice was not a “procedural defect,” as that term is used in Rule 60(d) and in D.C.Code § 16-310 (2001), which contains essentially identical language.
W.E.T. and I.J.T. also rely on Superior Court Civil Rule 60(b) in urging that we should read a showing of “excusable neglect” and a requirement of filing a motion “within a reasonable time” into Adoption Rule 60(d). Civil Rule 60(b), however, is a completely different rule from Adoption Rule 60(d). None of the language in the civil rule on which W.E.T. and I.J.T. rely appears in the adoption rule.
This court reviews decisions on motions seeking relief from a civil judgment under Civil Rule 60(b) for abuse of discretion. See, e.g., Fleming v. District of Columbia, 683 A.2d 846, 849 (D.C. 1993); Schmittinger v. Schmittinger, 638 A.2d 1158, 1163 (D.C. 1988); Joseph v. Parekh, 351 A.2d 204, 205 (D.C. 1976). While we apparently have not yet reviewed a trial court ruling on a motion seeking relief from a final adoption decree under Adoption Rule 60(d), we note that the adoption rule serves the same function as its civil counterpart. Because this type of relief in a civil case rests within the discretion of the trial court, we conclude that our review in the context of an adoption case is identical; i.e., we review such rulings only for abuse of discretion. In this case, because D.B.’s motion to set aside the adoption decree was filed within one year from the entry of the decree on the docket, and because the court found that its own procedures for notifying D.B. of the entry of that decree had failed in this instance, the trial court’s order vacating the decree fully complied with Adoption Rule 60(d). We therefore hold that the court did not abuse its discretion by granting the motion.
We turn, accordingly, to the merits of D.B.’s appeal.
Ill
In its order waiving D.B.’s consent to the adoption, the trial court stated that it found, by clear and convincing evidence, that such a waiver was in the best interests of the child. D.B. contends that there was insufficient proof to enable the court to make such a finding by clear and convincing evidence. We disagree.
The trial court, relying on D.C.Code § 16-304(e),
The court further found that K.D.B. had been living with W.E.T. and I.J.T., the adoption petitioners, from January 1994 to the present (ie., to the time of the hearing in August 1998). While in their care during those four and a half years, K.D.B. had grown into a normal, healthy young boy after overcoming early asthma and weight problems. K.D.B. now addresses W.E.T. and I.J.T. as “Daddy” and “Mommy.” He
Taking into account all of these facts, the trial court found that it was in the best interests of K.D.B. to grant the adoption petition over the mother’s objection. Such a finding must be supported by clear and convincing evidence, but if it is, it can be overturned only on a showing of abuse of discretion. See, e.g., In re Baby Boy C., 630 A.2d 670, 683 (D.C. 1993), cert. denied, 513 U.S. 809, 115 S.Ct. 58, 130 L.Ed.2d 16 (1994); In re L.W., 613 A.2d 350, 359 (D.C. 1992); In re D.R.M., 570 A.2d 796, 803-804 (D.C. 1990). On the record before us, we can find no such abuse. We have said that, in a case such as this, we “must be satisfied that there is sufficient evidence ‘such that the possibility of an erroneous judgment does not lie in equipoise between the two sides.’ ” In re A.C., 597 A.2d 920, 926 (D.C. 1991) (citation omitted). There is no way in which KD.B.’s best interests can be said to be in equipoise; the trial court said in its conclusions of law that the issue was “not even close,” and we agree.
The child’s natural mother has not involved herself in his life to any extent, even failing to visit him when she could have done so for more than two years. Returning K.D.B. to D.B.’s care would involve numerous risks and uncertainties about D.B.’s ability to stay off drugs, her ability to maintain a home, and her status as a convicted felon serving a prison sentence or, perhaps, a parolee.
On the other hand, the adoption promises K.D.B. a future within a loving and supportive family with whom he has now lived for more than eight years, including the potential for a college education. “[I]t would be ‘ruthless beyond description’ to take a child out of a loving home, when [he has] lived at that home for a substantial period of time as a result of [his] biological parent[’s] inability or unwillingness to care for [him].” In re L.L., 653 A.2d at 883 (citation omitted). Further, we have previously held that “a stable and desired environment of long standing should not be lightly set aside.” Rutledge v. Harris, 263 A.2d 256, 257-258 (D.C. 1970), quoted in In re L.L., 653 A.2d at 883.
We hold that the trial court’s finding that waiving D.B.’s consent to the adoption was in the best interests of the child is supported by clear and convincing evidence.
IV
For the foregoing reasons, the trial court’s order granting the motion to vacate
Affirmed.
. Previously, in the summer of 1992, I.J.T. had taken care of K.D.B. for "about a week” while his mother was incarcerated for reasons undisclosed by the record. After she was released, I.J.T. returned K.D.B. to his mother.
. I.J.T. and W.E.T. are also caring for K.B., another child of D.B. who is three years younger than K.D.B. According to I.J.T., the two boys "are best friends, they love each other, they play together, they fight together ... they have a normal brother relationship.” The status of K.B. is not at issue in this case.
. K.D.B.’s father had previously filed a written consent to the adoption.
.The Final Decree consists of two pages. At the bottom of the second page appears the notation "Copies to:”, followed by the name and address of counsel for the adoptive parents, but no one else. At oral argument there was some suggestion that there may have been a third page containing additional names and addresses which somehow went astray. Given our holding in part II of this opinion, however, we need not try to determine whether there was in fact a third page.
. D.B. could not have appealed from the original order waiving her consent to the adoption because such an order is not appealable. "An order waiving a birth parent’s consent to adoption is not a final order and may not be appealed until the adoption proceedings have been concluded.” In re S.J., 772 A.2d 247, 248 (D.C. 2001).
. Counsel suggested at oral argument that he was unable to contact his client during those months, but the record reflects that D.B. was incarcerated at the time.
. Adoption Rule 1 reads as follows:
(a) Scope of Adoption Rules. These rules govern adoption proceedings in the Family Division of the Superior Court.
(b) Applicability of other rules. Unless otherwise expressly provided by rule, no
other Superior Court Rules apply to adoption proceedings.
. The first Final Decree of Adoption was entered on the docket on October 6, 1998.
. The court said in its order:
Notwithstanding noting in the docket entry on August 18, 1998, that the mother’s counsel was to be notified of the docketing of the decree in order to protect the appeal rights of the mother, it appears that this notation was not sufficient to effectuate the desired notice....
. D.C.Code § 16-310 provides:
An attempt to invalidate a final decree of adoption by reason of a jurisdictional or procedural defect may not be received by any court of the District, unless regularly filed with the court within one year following the date the final decree became effective.
Appellants acknowledge, in a footnote in their brief, that Adoption Rule 60(d) "mimics the statute.” As far as this case is concerned, we see no material difference between the statute and the rule.
. Super. Ct. Civ. R. 60(b) reads in part:
On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment. The motion shall he made within a reasonable time, and for [reason number] (1) ... not more than one year after the judgment, order, or proceeding was entered or taken.
[Emphasis added.]
.Furthermore, we are unconvinced that the commentary supports the proposition that W.E.T. and I.J.T. urge upon us. As we interpret the commentators’ references to D.C.Code § 16-310 and In re 605 A.2d 921 (D.C.), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 567 (1992), they seek to clarify the meaning of the term "filed,” as used in the rule, as it relates to the term "regularly filed” in section 16-310, not
. D.C.Code § 16-304(e) states:
The court may grant a petition for adoption without any of the consents specified in this section, when the court finds, after a hearing, that the consent or consents are withheld contrary to the best interest of the child.
. Although there was some discussion below about the possibility of early release, the record does not clearly disclose when, or whether, D.B. may he eligible for parole.
. Clear and convincing evidence is evidence "which will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. It does not mean clear and unequivocal.” In re Estate of Soeder, 7 Ohio App.2d 271, 310, 220 N.E.2d 547, 574 (1966) (citation omitted), quoted with approval in District of Columbia v. Hudson, 404 A.2d 175, 179 n. 7 (D.C. 1979) (en banc), opinion after remand, 449 A.2d 294 (D.C. 1982) (en banc).
Reference
- Full Case Name
- In re W.E.T. and I.J.T. D.B., In re W.E.T. and I.J.T.
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- 16 cases
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