A decision this summer by the District of Columbia Court of Appeals in an adoption case has put two young children in limbo and raised questions about how judges decide what’s in a child’s best interest in a fight over custody.

The children in the case, now 5 and 6 years old, spent most of their lives with foster parents who wanted to adopt them. The children’s aunt also filed for adoption. The appeals court said the trial judge made a mistake awarding custody to the foster parents.

Lawyers from Gibson, Dunn & Crutcher, representing the foster parents, have challenged the decision, which they say wrongly limits a judge’s ability to consider the risks of separating children from the home where they had a strong attachment.

Lawyers for the aunt and birth parents — who supported t­urning over custody of the children to their aunt — praised the decision, saying it aligns with long-standing case law that favors the birth parents’ choice.

When children are removed from their birth parents because of abuse or neglect, as in this case, courts have said the parents’ opinion should still carry weight. D.C. Court of Appeals Chief Judge Eric Washington wrote in the court’s August opinion that birth parents have a “fundamental liberty interest” in decisions about the care of their children.

The three-judge appellate panel said the D.C. Superior Court judge failed to give the adoption petition filed by the children’s aunt the “weighty consideration” required. The court stopped short of granting the aunt custody, though, instead sending it back to the trial judge to take another look.

The foster parents’ lawyers, who are handling the case pro bono, have asked the appeals court to reconsider. Gibson Dunn associate Melanie Katsur said the ruling went against case law allowing judges to give significant consideration to evidence on the children’s attachment to their current caregivers and the risks of separation.

“What was so striking was all the experts agreed the children would be necessarily traumatized by removing them from our clients,” she said. “The court of appeals just disregarded that.”

Solo practitioner N. Kate Deshler Gould, who represented the children’s biological father on appeal, said the ruling “really nailed it.” She said the court clarified existing case law on the burden of nonpreferred parties — in this case, the foster parents — to show the birth parents’ choice was against the children’s best interest. The court, she said, “just made it very, very clear that the burden of proof was not met.”

‘WEIGHTY CONSIDERATION’

Most adoption cases in the District involve children removed from their homes due to abuse and neglect. Super­ior Court judges granted 197 adoptions during fiscal year 2012. Of those, 112 came out of neglect cases.

Approximately 1,400 children were in foster care in Washington at the end of 2012, according to a report by the Metropolitan Washington Council of Governments. Court data show the majority of children in abuse and neglect cases return to their birth parents or are placed with a permanent guardian, meaning the birth parents’ rights are not fully terminated.

The children, A.L. and Ta.L. — a girl and a boy, whose names are confidential — were placed with the foster parents in March 2008 after their birth parents were arrested for domestic violence, according to the opinion. A.L. was 16 months old and Ta.L. was three months old.

A judge set a goal of returning the children to their birth parents. A year later, the goal was changed to adoption. The court found the birth parents failed to take drug tests, find stable housing and otherwise prove they were fit to care for their children.

In 2009, the foster parents and the children’s aunt both filed for adoption. The birth parents said they preferred the aunt. The D.C. Child and Family Services Agency supported the foster parents. An adoption trial was held in May 2011.

At trial, Superior Court Judge Neal Kravitz heard testimony from experts, including one hired by the foster parents to study the children’s “attachment” to them, and one hired by the aunt to critique that testimony. Kravitz granted the foster family’s petition in August 2011. He found the aunt was a fit caretaker, but cited evidence about the children’s strong attachment to the foster parents and the risks of separation.

The appeals court said Kravitz did not show he gave the aunt’s petition “weighty consideration.” Absent a study of the children’s attachment to their aunt — which the court said wouldn’t have been fair anyway since the aunt didn’t have enough time to bond with the children — the trial judge didn’t have enough evidence to make a decision, Washington wrote.

The Legal Aid Society of the District of Columbia supported the aunt and birth parents. John Keeney Jr., director of Legal Aid’s appellate program, said they were “delighted that the court did the right thing and applied the law.” The D.C. Office of the Attorney General, which supported the foster parents’ position on appeal, declined to comment.

The Children’s Law Center referred the case to Gibson Dunn. The center routinely refers family court matters to local pro bono counsel; besides Gibson Dunn, other firms taking these types of cases have included Steptoe & Johnson LLP, Crowell & Moring and Jones Day.

If the opinion withstands a challenge, Gould said, she expects lawyers for nonpreferred petitioners to agree to giving the birth parents’ choice more time with the children. “Otherwise, how are they going to overcome this burden?” she said.

Katsur said she was worried the ruling would create new uncertainty about the adoption process. “We do have concerns about foster parents being reluctant to seek to adopt their foster children if they have knowledge of this case and realizing that five years later, their children could be ripped out of their home,” she said.

The children’s guardian ad litem also filed a petition for a rehearing.

Lawyers on both sides declined to speculate on the outcome if the case was sent back to the trial judge. Washington wrote that because the children had spent more than five years with the foster parents, it was not clear that awarding the aunt custody was in the children’s best interests. The court ordered the trial judge to reconsider the case, making sure he gives the aunt’s petition “weighty consideration.”

The court pointed out that, under D.C. case law, birth parents could not immediately appeal once a judge changed the goal from reunification to adoption, and instead had to wait until the case was finished. Washington said in a footnote the court was open to reconsidering that rule. Local attorneys say there are pending cases that would offer that opportunity.

Adam Pertman, executive director of the Evan B. Donaldson Adoption Institute of New York, said courts “are all over the lot” in how they handle contested adoptions. What is clear, he said, is the cases were taking too long. “We need to act more expeditiously,” he said, “because the slow process, for whatever reasons it takes place, is in and of itself detrimental.”

Contact Zoe Tillman at ztillman@alm.com.