# Appeal of H.R.

> District of Columbia Court of Appeals · August 29, 1990 · 581 A.2d 1141

URL: https://www.frixlaw.com/law-library/cases/9711774

## Case

- **Full name:** Appeal of H.R. (In the Matter of BABY BOY C.)
- **Court:** District of Columbia Court of Appeals
- **Decided:** August 29, 1990
- **Citations:** 581 A.2d 1141; 1990 WL 157735
- **Precedential status:** Published
- **Opinion:** Concurrence by Rogers
- **Judges:** Rogers, Ferren, Belson
- **Cited by:** 73 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9711774

## How later opinions describe it (automated extraction)

- concluding as matter of law that natural father, known to District officials responsible for adoption action, could not be said to have abandoned opportunity interest because District unlawfully failed to notify him of pending judicial proceedings
- holding that "[bjecause the best interest standard, as applied by the trial court, did not incorporate [the necessary] parental preference, ... a remand is required to apply the best interest standard as properly formulated”
- holding that “[b]ecause the best interest standard, as applied by the trial court, did not incorporate [the necessary] parental preference,… a remand is required to apply the best interest standard as properly formulated”
- explaining that the TPR factors, “as applied to the natural parent ... are of central concern” in evaluating the meaning of parental “fitness”

## Opinion text

ROGERS, Chief Judge,
concurring:
In this appeal from an order of adoption, the court must determine whether H.R. grasped his opportunity interest and, if so, whether the trial judge applied the correct standard in concluding that Baby Boy’s best interest called for his adoption by the O family over his natural father’s objection. I join Judge Ferren in concluding that H.R. has grasped his opportunity interest under the unusual circumstances presented by this case, and that H.R.’s statutory right to receive immediate notice of the adoption proceeding was violated. Because I also conclude that the trial judge failed to apply the best interest standard of the adoption statute, as long interpreted to include a presumption in favor of a fit natural parent over a stranger to the child, I join Judge Ferren in concluding that a remand is required. Accordingly, I join Part I (Facts and Proceedings) and Part V (Violations of H.R.’s constitutional and statutory rights) of Judge Ferren’s opinion. I am unable to join his formulation of the post-Lehr 1 standard based on his view that Lehr creates, as a matter of substantive due process, a parental preference. In my view it is unnecessary to reach the constitutional issue that he presents. Further, I find no occasion to apply the guardianship statute to adoptions. Rather, the statutory best interest standard for adoption must apply. I also find no occasion to address the adequacy of the child placement regulations (see Part V(B) of Judge Ferren’s opinion).
The statutory standard in the District of Columbia for determining custody disputes between a natural parent and a stranger has been long settled. In Davis v. Jurney, 145 A.2d 846 (D.C.1958), the court stated:
The controlling principle by which the courts must be guided in cases of this kind is well settled. The paramount concern is the child’s welfare and all other considerations, including the rights of a parent to the child, must yield to its best interests and well-being. While no precise formulae can be devised to aid the court in its determination as to what is best for the child, certainly the application of this broad principle does not demand that the right of a parent be ignored. Under our Code the father and mother are the natural guardians of their minor children. Case law has affirmed this by recognizing the preferential claim of a natural parent in contests involving nonparents. With added consistency the Court of Appeals recently stated in Bell v. Leonard:
“ ‘Except where a nonparent has obtained legal and permanent custody of a child by adoption, guardianship or otherwise, he who would take or withhold a child from mother or father must sustain the burden of establishing that the par *1184 ent is unfit and that the child’s welfare compels awarding its custody to the non-parent. * * * In other words, the burden rests, not, for instance, upon the mother to show that the child’s welfare would be advanced by being returned to her, but rather upon the nonparents to prove that the mother is unfit to have her child and that the latter’s well-being requires its separation from its mother.’ People ex rel. Kropp v. Shepsky, [ 305 N.Y. 465, 469 , 113 N.E.2d 801, 804 (1953)]; Skeadas v. Sklaroff, [ 84 R.I. 206 , 122 A.2d 444 , cert. denied, 351 U.S. 988 , 76 S.Ct. 1051 , 100 L.Ed. 1501 (1956) ]; People ex rel. Fentress v. Somma, Sup., [ 127 N.Y.S.2d 169 (1953)].” [ 102 U.S.App.D.C. 179, 184 , 251 F.2d 890, 895 (1958)] [footnotes omitted].
The foregoing represents no new principle of law, but merely reflects the wisdom of human experience that children ordinarily will be best cared for by those bound to them by the ties of nature. Where compelling circumstances are shown and the best interests of the child require an award to someone else, the court has but one choice. However, such an award can only be justified after the welfare and best interests of the child and the legal and natural rights of the parent have both been carefully considered.
145 A.2d at 849 . 2
Bell v. Leonard, supra, 102 U.S.App. D.C. 179, 251 F.2d 890 , quoted in Davis v. Jurney, was an adoption case. In Bell the natural mother sought to regain custody of her nine-year-old daughter from a stranger who wanted to adopt the child. Id. at 180 , 251 F.2d at 891 . The mother, who had been in “sore straits, jobless yet caring for the infant,” had initially agreed to let Bell, a stranger to the child, take care of the child while she worked during the week. Id. When the mother sought to take her child on weekends, Bell protested and the upset mother decided she should reclaim her child altogether. Id. The mother filed habeas corpus petitions seeking custody of her child but was unsuccessful, apparently because she was planning to leave the country for a period of several years. Bell filed a petition for adoption of the child. Id. at 181 , 251 F.2d at 892 . When the *1185 mother returned to the country three years later, the trial court granted her request for custody and dismissed Bell’s petition for adoption. 3 Id. The U.S. Court of Appeals for the District of Columbia Circuit affirmed, pointing to the presumption that children are better off with their natural mother, and that a fit natural mother is entitled to her own child as against the claim of a stranger even where the stranger has had custody of the child for a number of years. Id. at 184 , 251 F.2d at 895 . 4
This was in accord with the long-standing principle in this jurisdiction that the paramount consideration in awarding custody is “the permanent advantage and welfare of the children.” It also is consistent with the guardianship provisions upon sur-vivorship of a parent. Thus, where the father is deceased and “the mother is a proper person, able and willing to provide properly for the wants of her children ..., the law recognizes the priority of her right to their custody and control.” Beall v. Bibb, 19 App.D.C. 311, 313 (1902). In Beall v. Bibb, the mother’s custody was opposed by the children’s maternal grandmother and maternal aunt who had maintained custody of the twin eleven-year-old children for at least the past four years. Id. at 311 . The court observed that transfer of custody to a particular person or deliberate abandonment would, under ordinary conditions, be very strong evidence of a lack of fitness on the part of the natural parent. Thus, the revived claims of such parents may only be denied, however, if the relations between the children and the non-parent custodians had become such that to sever them would be “necessarily cruel or painful.” Id. at 314 . See also Shelton v. Bradley, 526 A.2d 579 (D.C.1987) (under D.C.Code § 21-101 (1981), statutory presumption of custody in surviving natural parent).
Accordingly, the interpretation of the statutory standard for adoption under our Code is fully consistent with recognition of the constitutional right of a natural father not to be denied his opportunity interest in seeking custody of his child. 5 District of Columbia caselaw suggests a well-established presumption to determine custody disputes between a natural parent and strangers favoring the award of custody to the natural parent, absent an affirmative showing of unfitness, as consistent with the best interest of the child. See, e.g., In the Matter of N.M.S., 347 A.2d 924, 927 (D.C.1975) (ordinarily a natural mother cannot be deprived of child absent showing of unfitness or inability to care for child); Johnson v. Lloyd, 211 A.2d 764 (D.C.1965) (to withhold a child from its natural parent there must be proof that the natural parent is unfit and that the child’s welfare compels awarding custody to the nonparent, child’s welfare being “inextricably bound up” with the right of the parent). 6
*1186 In recent opinions the court has addressed a series of constitutional challenges to the adoption and termination of parental rights statutes. 7 Finding no constitutional basis for requiring a determination of unfitness as a precondition to the termination of a natural parent’s custodial rights, the court did not refer (at least not explicitly) to a custodial preference for a fit natural parent. 8 Rather, the court simply viewed the best interest of the child as the dispositive factor. In three of the recent cases, the court rejected constitutional challenges to our interpretation of the statutory standard for adoption, and in so doing relied on decisions referring to circumstances in which a natural parent would forfeit his custodial rights. 9 In no case has *1187 the court indicated that it abandoned or qualified the long held interpretation of the statutory best interest standard. 10 Indeed, as recently as 1985, the court noted the pervasiveness of the best interest standard, going back to the end of the last century in Wells v. Wells, 11 App.D.C. 392, 395 (1897), as the accepted test in child custody cases between spouses, between a natural parent and foster parents, in child neglect proceedings, and in adoptions involving a stranger. In re D.I.S., 494 A.2d 1316 (D.C.1985) (citations omitted) (affirming adoption by grandmother and removing child from foster family notwithstanding consideration of psychological bonding of child and continuity of care). 11
Nothing in Lehr suggests that the statutory interpretation is constitutionally defective. In Lehr, the Supreme Court held narrowly. The natural father in that case claimed that he was entitled to notice and a hearing before his child could be adopted. The lower court and the Supreme Court rejected his claim, holding instead that his right to due process was protected by the registry system established under state law. 463 U.S. at 265, 103 S.Ct. at 2995. The Court so held notwithstanding the father’s active efforts to assert his rights to custody of his child. Justice Stevens discussed the nature and effect of the natural father’s opportunity interest, commenting that when an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, in other words, preserves his “opportunity interest” in custody, his interest in personal contact with his child acquires substantial protection under the Due Process Clause. Id. at 261, 103 S.Ct. at 2993. Accordingly, the Court concluded that the state must provide sufficient means to efficiently exercise one’s rights, that is, sufficient means to seize one’s opportunity interest and attain custody of their child. Nevertheless, the natural father, who had filed a petition seeking a determination of paternity and visitation privileges before the decree of *1188 adoption was entered, did not prevail on his due process (or equal protection) claim.
Judge Perren’s more expansive reading of the holding in Lehr, adopting the analysis in a law review article that Lehr creates a substantive due process right in a natural parent to custody, see opinion at 1158-1159, would require this court to overturn its previous decisions about the elements of the constitutional standard. Neither Lehr, nor pre-Lehr Supreme Court decisions interpreted in light of Lehr, require such an overhaul of our law. While the Court refers to a natural father’s parental interest in the care and custody of his child as deserving of “substantial protection under the Due Process Clause,” Lehr, 463 U.S. at 261, 103 S.Ct. at 2993, nothing in Lehr indicates that the Court was talking about a substantive, rather than a procedural, due process right incorporating a parental preference. Indeed, by affirming the constitutionality of a statutory limitation on the category of natural fathers whose parental rights are protected and denying Mr. Lehr, who continually tried to assume responsibility for his child, a right to notice and hearing before the adoption decree was issued and his parental rights were terminated, the majority in Lehr retreats from the broader position taken by the dissent in recognition of the valuable interest in par-exiting one’s own child. See Lehr, supra, 463 U.S. at 272-73, 103 S.Ct. at 2999 (White, J., dissenting). Even were there some implicit substantive due process right protecting a natural father’s interest in taking care and custody of his child, nothing in Lehr, either alone or in conjunction with Stanley v. Illinois, 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972), Caban v. Mohammed, 441 U.S. 380 , 99 S.Ct. 1760 , 60 L.Ed.2d 297 (1979), and Quilloin v. Walcott, 434 U.S. 246, 255 , 98 S.Ct. 549, 554 , 60 L.Ed.2d 297 (1978), suggests that the best interest standard is inconsistent with due process or that the natural father’s right is preeminent. 12 Indeed, since Lehr the Court has made clear that a natural father’s right to a relationship with his child is not unlimited and can be defeated by a statutory presumption even in the absence of a hearing before termination of his parental rights. Michael H. v. Gerald D., 491 U.S. 110 , 109 S.Ct. 2333 , 105 L.Ed.2d 91 (1989). 13 The provision in the District of Columbia Code requiring that a natural parent must be “immediately” notified of an adoption proceeding meets the requirements of due process as defined by Lehr. See Michael H. v. Gerald D., supra, 109 S.Ct. at 2347 (Stevens, J., concurring). Lehr does not, in my view, provide further constitutional protection to H.R. 14
*1189 Under our adoption statute, a natural father, who has not abandoned his opportunity interest in seeking custody of his child, is entitled to custody of the child, where the mother has surrendered her parental rights in favor of adoption of the child by a stranger(s), absent a showing that such custody would not be in the best interest of the child. As between such a natural parent and strangers to the child, the burden of proof is on the strangers to show by clear and convincing evidence that the best interest of the child requires custody be placed with the strangers. This burden will not be easily met where the parent is deemed to be fit since that circumstance ordinarily will embrace the concept that a fit parent will be responsive to the best interests of the child. 15 An exception may arise where the child is residing in a preexisting unit. See Quilloin, supra, 434 U.S. 246 , 98 S.Ct. 549 (no violation of substantive due process by use of best interest of child standard where natural father never had and never sought custody). 16
This formulation of our standard is consistent with the District’s legislative policy emphasizing the primacy of the best interest of the child who is sought to be adopted while giving full recognition to the natural parent’s opportunity interest. 17 Lehr does *1190 not require that we abandon our interpretation of the best interest standard. Indeed, Lehr does not abandon or revise the Court’s emphasis on a child’s best interest, see Quilloin v. Wolcott, supra, 434 U.S. 246 , 98 S.Ct. 549 . In addition, since the District of Columbia has never adopted by statute the “detrimental” or “harm” standard as appeared in a now repealed California statute and as appears in the Uniform Parentage Act, there is no basis to import that standard into our law. 18 Nor is there any indication that the legislature has abandoned the fit parent presumption underlying the best interest standard for adoption. 19
*1191 Accordingly, in an adoption proceeding to which the natural father does not consent, the trial court must first determine whether the father has grasped his opportunity interest. If so, then the court must determine whether the father is a fit parent. 20 If he is a fit parent, then he is presumed to be entitled to custody of his child. That presumption is rebuttable, however, upon a showing, by clear and convincing evidence, that the best interests of the child require that the child be placed in the custody of the stranger(s). In sum, while the applicable statute prescribes a “best interests” standard in determining custody, I would affirm the court’s long held interpretation of D.C.Code § 16-304(e) incorporating a parental preference in determining the best interest of the child when a noncustodial parent is fit and has not abandoned his opportunity interest. This is consistent with Lehr, and also with the statutory standard applied in this jurisdiction in recognition of the reality that only on rare occasions will custody with a fit natural parent fail to coincide with the best interests of a child.
Because the trial court failed to consider H.R.’s parental preference, a remand is required. Armstrong v. Manzo, 380 U.S. 545, 551 , 85 S.Ct. 1187, 1191 , 14 L.Ed.2d 62 (1965) (reversing judgment confirming adoption decree and remanding case where failure to timely notify natural father of adoption proceedings placed burden on him that he otherwise would not have had); see Davis v. Jurney, supra, 145 A.2d at 850 (where fitness is necessary issue for disposition of custody of 9 year old child and there is no indication what trial judge would have found regarding natural parents’ fitness, a remand for a new hearing is required) (citing Schroeder v. Schroeder, 133 A.2d 470 (D.C.1957) (new trial where error of law)); cf. Bazemore v. Davis, 394 A.2d 1377 (D.C.1978) (en banc) (remanding in absence of trial court’s determination of best interest of child in custody dispute between natural parents). H.R. argued in pleadings before the trial court that the burden was on the 0. family to show by clear and convincing evidence that it would be in the child’s best interest to be placed with them. The record reveals that the trial court placed, and continued to place even after the evidentiary hearings had begun, an affirmative burden upon H.R. to come forward, in order to prevent the interlocutory decree of adoption from becoming final, with “evidence as to why the adoption would not be in the child’s best interests,” ignoring the preference favoring the natural parent. 21 While the trial court’s final order permitting the adoption by the 0. family includes a finding that the O. family established by clear and convincing evidence that it is in Baby Boy C.’s best interest to remain with the 0. family, it is not clear that the trial court recognized at any point throughout the proceedings that the best interest standard includes a preference favoring the natural parent. Indeed, the trial court’s finding that H.R. had not grasped his opportunity intereét and its conclusion of law that a finding of unfit *1192 ness was unnecessary were consistent with the trial court’s view that the burden remained with H.R. Combined with the absence of any reference to the parental presumption, the record demonstrates that the prior legal standard was not applied in assessing whether the 0. family had demonstrated by clear and convincing evidence that the child’s best interests required the permanent severing of any relationship between H.R. and his child. This court is not in a position to second guess the outcome had the trial court applied the best interest standard incorporating the parental preference in H.R.’s favor.
The division is in agreement that the “best interest” standard of our adoption statute incorporates a rebuttable presumption in favor of a fit unwed father who has grasped his opportunity interest. Accordingly, upon remand the trial court should give effect to H.R.’s unabandoned opportunity interest in the custody of Baby Boy C., in determining whether H.R. is a fit parent, and if so, whether the 0. family has demonstrated, by clear and convincing evidence, that Baby Boy C.’s best interest require his custody to be placed in the 0. family with or without visitation or other rights by H.R.
. Lehr v. Robertson, 463 U.S. 248 , 103 S.Ct. 2985 , 77 L.Ed.2d 614 (1983).
. Davis v. Jumey involved a natural mother's attempt to regain custody of her nine-year-old son who had been living with relatives of the boy’s father for about six years pursuant to a written agreement. Id. at 847-48. The parents of the child entered into the agreement during a period of time in which they were suffering marital problems. Despite their attempts to preserve the marriage, the parties eventually divorced. The mother visited her son regularly throughout this period of time, however, and exchanged letters with the custodial relatives and her son during an extended stay out of the country which revealed strong ties of affection. Id. at 848. When the mother returned to the District of Columbia, she, with affirmative support from her former husband, sought custody of the child. The relative objected and sought to retain their custody of the boy.
The trial judge determined that the relatives were fit and proper persons and that the welfare of the child would best be served by awarding custody to them. Id. at 848. The mother appealed contending that the trial judge improperly relied on the agreement between the parties and failed to consider her preferential claim as the natural mother of the child. Id. at 848.
The court of appeals, after reciting the controlling principle quoted above, remanded the case for a new hearing with instructions to apply the proper standard, namely that where evidence does not show an intent on the part of a natural parent to abandon her rights to custody, the strangers (relatives of the child’s father) must bear the burden of establishing the natural parent’s unfitness by evidence concerning, but not exclusively, the natural parent’s association with the child over the years, her efforts to obtain custody of him and her present suitability to assume the responsibilities of parenthood. Id. at 850.
The rationale of the court was that of Justice Traynor, who, concurring in In re Guardianship of Smith, 42 Cal.2d 91, 94 , 265 P.2d 888, 891 (1954) (en banc), wrote:
The objection to the rule that custody must be awarded to the parent unless he is unfit carries the harsh implication that the interests of the child are subordinated to those of the parent when the trial court has found that the best interests of the child would be served by giving his custody to another. The heart of the problem, however, is how the best interests of the child are to be served. Is the trial court more sensitive than the parent to what the child’s best interests are, better qualified to determine how they are to be served? It would seem inherent in the very concept of a fit parent that such a parent would be at least as responsive as the trial court, and very probably more so, to the best interests of the child.
. The three-year period was apparently viewed by the trial judge as a period of probation for the natural mother during which her fitness “might the more certainly be developed.” Id. at 182 , 251 F.2d at 893 .
. The court quoted from People ex rel. Portnoy v. Strasser, 303 N.Y. 539, 542 , 104 N.E.2d 895, 896 (1952):
No court can, for any but the gravest reasons, transfer a child from its natural parent to any other person * * * since the right of a parent, under natural law, to establish a home and bring up children is a fundamental one and beyond the reach of any court, Meyer v. State of Nebraska, 262 U.S. 390, 399 [ 43 S.Ct. 625, 626 , 67 L.Ed. 1042 (1923) ] * * *.
Id. at 183 n. 17, 251 F.2d at 894 n. 17.
. The District of Columbia adoption statute, D.C.Code § 16-309(b) (1989 Repl.), provides: the [trial] court may enter a final or interlocutory degree of adoption when it is satisfied that:
(1) the prospective adoptee is physically, mentally, and otherwise suitable for adoption by the petitioner;
(2) the petitioner is fit and able to give the prospective adoptee a proper home and education;
(3) the adoption will be for the best interest of the prospective adoptee; and
(4) the adoption form has been completed by the petitioner pursuant to section 10 of the Vital Records Act of 1981.
The best interest standard has been a part of the District's adoption statute for generations. See, e.g., In re Adoption of a Minor, 79 U.S.App.D.C. 191 , 193 & n. 6 & 196 n. 17, 144 F.2d 644 , 646 & n. 6 & 649 n. 17 (1944) (discussing D.C.Code § 16-201 (1940)).
.In N.M.S., the natural mother sought to regain custody of her nine and one half year old *1186 daughter whom she had voluntarily surrendered to the Public Welfare Department when the child was four days old because she felt that, for financial and other reasons, she was temporarily unable to care for the child. 347 A.2d at 925 . The court declined to struggle with what it viewed as the "abstract" question of whether a fit parent is subordinate to the best interest of the child, observing that “there are many varying degrees of fitness, and best interest is hardly an expression of precise meaning." Id. at 927 . Hypothesizing a potential conflict among prior decisions about which right or interest is superi- or, that of the natural parent or child, the court suggested that "[p]robably the holdings can be reconciled by the differing factual situations or perhaps on the proposition that ordinarily a child’s best interest is served by being with a fit parent.” Id. (contrasting Johnson v. Lloyd, 211 A.2d 764 (D.C.1965); Jackson v. Fitzgerald, 185 A.2d 724 (D.C.1962); Davis v. Jurney, 145 A.2d 846 (D.C.1958); Bell v. Leonard, 102 U.S.App. D.C. 179, 251 F.2d 890 (1958), with Cooley v. Washington, 136 A.2d 583 (D.C.1957); In re Lambert, 86 A.2d 411 (D.C.1952); Holtsclaw v. Mercer, 79 U.S.App.D.C. 252 , 145 F.2d 388 (1944)). Also in Shelton v. Bradley, supra, the court noted in passing a conflict between prior decisions regarding whether parental unfitness had to be demonstrated, but did not need to resolve the matter since a presumption was explicitly set forth in the statute at issue. 526 A.2d at 580 -81 n. 3. A review of the cases in which the court has commented on a possible conflict indicates, however, that they follow the fit-parent presumption where parents have not abandoned their opportunity interest in custody.
Judge Ferren’s commendable effort to categorize the cases is flawed insofar as he suggests that the cases involving a mother who has surrendered her child to a stranger and is seeking to regain custody place the natural mother on the same footing as the stranger who is seeking custody of the child. See Ferren, J., opinion at 1152-1153. The quote from Davis v. Jurney and the discussion of Bell v. Leonard and Beall v. Bibb, make clear the error of his interpretation. See pp. 1143-1144, supra, and note 18, infra. Our cases have not diminished the presumption in favor of the fit natural parent; rather, the court has noted that the fact of prior surrender is a factor to be taken into account — no more— in evaluating the parent’s present fitness.
.The Termination of Parental Rights Act, D.C. Code § 16—2353(b) (1989 Repl.), was enacted in 1977 and provides in relevant part;
In determining whether it is in the child's best interests that the parent and child relationship be terminated, a judge shall consider each of the following factors:
(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; and
(4) to the extent feasible, the child’s opinion of his or her own best interests in the matter.
. Eg. In re U.S.W., 541 A.2d 625 (D.C. 1988) (termination of parental rights on account of neglect by natural parents); In re C.O.W., 519 A.2d 711 (D.C.1987) (same); In re M.M.M., 485 A.2d 180 (D.C.1984) (same); In re K.A., 484 A.2d 992 (D.C.1984) (termination of rights of natural parents who abandoned child).
. Thus, in In re J.O.L., 409 A.2d 1073 (D.C.1979), vacated and remanded, 449 U.S. 989 , 101 S.Ct. 523 , 66 L.Ed.2d 286 (1981), the court rejected a challenge to the constitutionality of the adoption statute as applied to a natural parent objecting to an adoption and referred only to the trial judge’s findings in concluding that there was clear and convincing evidence that the children’s best interest lay in remaining in a family unit with the stepfather and not with the natural father who had failed to visit the children for five years.
In In re P.G., 452 A.2d 1183 (D.C.1982), the court again rejected a constitutional due process challenge to the statute, holding that no decision of the Supreme Court required a finding of unfitness of the natural parent before the rights could be terminated over his objection. The court distinguished Caban v. Mohammed, 441 U.S. 380 , 99 S.Ct. 1760 , 60 L.Ed.2d 297 (1979) as involving the equal protection clause, and noted that in Santosky v. Kramer, 455 U.S. 745 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982), the Court "carefully refrained from any constitutional *1187 holding regarding the substantive criteria, limiting its attention to the standard of proof.” 452 A.2d at 1185. The court also noted that Quilloin v. Wolcott, 434 U.S. 246 , 98 S.Ct. 549 , 54 L.Ed.2d 511 (1978) held that due process is satisfied by the best interest standard "at least where the effect is simply to recognize an existing family unit,” — in that case the child had lived with the adoptive family for 9 years — but declined to address the required standard where the child has not already been integrated into the adoptive family for some time. Id. at 1184-85.
J.O.L. and P.G. relied, in turn, on In re I.S.R., 374 A.2d 860 (D.C.1977), where the court held that the Constitution did not require a finding that a natural parent is unfit before an adoption by a stranger could be ordered but that clear and convincing evidence was required that a natural parent’s consent to the adoption was being withheld contrary to the best interest of the child. 374 A.2d at 864 ("We find nothing offensive to constitutional mandates in our statutory standard which focuses on the best interest of the child rather than solely on the status or abilities of the natural parent.”). The court quoted, with apparent approval, Winter v. Director, Dept. of Welfare, 217 Md. 391 , 143 A.2d 81 (1958) in which the court upheld the statute permitting adoption without the parents’ consent. In Winter , the court stated that the parent has "no inherent right of property in a child, and the right the parent has to the custody and rearing of his children is not an absolute one, but one that may be forfeited by abandonment, unfitness of the parent, or where some exceptional circumstances render the parents’ custody of the child detrimental to the best interests of the child.” 217 Md. at 396 , 143 A.2d at 84 .
. The facts in several cases make clear that the parental preference had been overcome by clear and convincing evidence. See In re K.A., supra, 484 A.2d 992 (natural parents abandoned child); In re I.O.L., supra, 409 A.2d 1073 (father had not visited children for five years, children who lived with natural mother and her husband, and viewed the husband as their "real father” and experienced emotional distress upon obligatory visits with natural father; questions also were raised about natural father’s mental health and use of illegal drugs); In re J.S.R., supra, 374 A.2d 860 (the child had never known his natural mother, had experienced personality damage from four years of changing foster home placements, and was gaining confidence in his potential adopters’ home; natural mother was a victim of multiple sclerosis, dependent on others for most of her physical needs, and had voluntarily surrendered custody of child at birth because she was unable to care for him).
. In D.I.S., the court acknowledged, however, that the right of a natural parent to raise his child is constitutionally protected, albeit not absolute. 494 A.2d at 1326 & n. 16 (citing In re I.S.R., supra, 374 A.2d at 863 ; Stanley v. Illinois, 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972)).
.Stanley and Caban hold unconstitutional a statutory presumption of unfitness absent an individualized determination (Stanley) and statutory differentiation between the natural parents with regard to consent to adoption (Ca-ban ). Quilloin upholds the constitutionality of a best interest of the child standard in the face of a natural father’s claim that an unfitness determination was required where the natural father had never had or sought actual or legal custody of his eleven year old child and where the result of adoption was to give recognition to a family unit already in existence. 434 U.S. at 254-55 , 98 S.Ct. at 554 . The instant case does not fall within the dictum in Quilloin that due process would be offended if "a State were to attempt to force the breakup of a natural family over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest." 434 U.S. at 255 , 98 S.Ct. at 555 (quoting Smith v. Organization of Foster Families, 431 U.S. 816, 862-63 , 97 S.Ct. 2094, 2119 , 53 L.Ed.2d 14 (1977) (Stewart, J., concurring in the judgment). Of course, here, while H.R. did not abandon his opportunity interest, the proposed adoption by the O. family, like that in Quilloin, would not place Baby Boy C with a new set of parents with whom he had never before lived.
. In Michael H., the Court upheld the constitutionality of a statutory presumption that a child bom to a woman living with her husband is a child of the marriage. The Court rejected the natural father’s claims that there is a constitutionally protected liberty interest in a parental relationship and that protection of the marital union of natural mother and husband is an insufficient state interest to support termination of that relationship.
. Lehr did not hold that the actions of the natural father were insufficient to constitute his seizing of his opportunity interest in a general sense. The Court held only that New York had established a statutory mechanism for seizing one’s opportunity interest and failing that, other efforts would not suffice to overcome the defect in the father’s failure to register under state law. Hence, this court remains free to decide what *1189 factual circumstances constitute a seizing of one’s opportunity interest. The District of Columbia’s statutory right to immediate notice of an adoption proceeding, however, is a critical factor in deciding whether H.R. seized his opportunity interest. The uncertainties and vagueness about the existence of Baby Boy C and exactly what the natural mother had done explain to my satisfaction that prior to the time that H.R. should have been notified formally of the adoption proceeding he did not abandon his opportunity interest.
The factual circumstances of this case are unusual. The natural father is not a citizen or resident of the United States, and both his cultural and legal background are foreign to the United States. Ideas about raising a child are different in Zaire and concepts of child custody under the civil law system differ in significant respects from the American common law and statutory system. French, not English, is his native language. Furthermore, there was evidence that his financial circumstances did not make it possible for him to come immediately to the United States upon learning that in fact a child had been born. Significantly, however, when he learned of the formal adoption proceeding, he appeared before the court. Our dissenting colleague unrealistically and, in my view, unreasonably burdens H.R. with knowledge of what American courts would expect a United States citizen to do to demonstrate his commitment to his child, as, for example, by offering to pay support. Of course, support was never at issue here. More importantly, H.R. did far more than offer token support; he wrote immediately to the mother after receiving Barker’s first letter and called her, in October 1983, when he had received her response to his letter and asked her to send the baby to him. Then, in January 1984, he called Barker and advised he could not consent to the adoption. Given cultural differences and the delay of the mails, H.R.’s responses were consistent with seizing his opportunity interest; indeed, as Judge Ferren points out, he could do little more than appear in the adoption proceeding, of which he did not, as the statute required, receive immediate notice.
. See Davis v. Jurney, supra, 145 A.2d at 849 (parental preference "reflecting] the wisdom of human experience” is overcome only by “compelling circumstances”).
. Furthermore, the concept of best interest of the child is sufficiently broad to enable the trial judge to recognize that requiring the child to “make some sacrifice to be with his natural parent or adjust to a new environment ... does not necessarily mean that his welfare will be correspondingly impaired.” Again, in the words of Justice Traynor:
It may not be the best interests of the child to have every advantage. He may derive benefits by subordinating his immediate interests to the development of a new family relationship with his parent, by giving as well as receiving. Thus, although a change in custody from an outsider to a parent may involve the disruption of a satisfactory status quo, it may lead to a more desirable relationship in the long run.
In re Guardianship of Smith, supra, 42 Cal.2d at 96 , 265 P.2d at 891-92 . Courts likewise have recognized that an extended family may include the natural parent. In re Baby Girl M, 191 Cal.App.3d 786 , 236 Cal.Rptr. 660 , 662 (1987) (quoting trial judge’s orders). See In the Matter of D.I.S., supra, 494 A.2d at 1323, 1325 (statute provides flexible framework for case by case determination of the best interest of the child) (citing Bazemore v. Davis, 394 A.2d 1377, 1383 (D.C.1978) (en banc)).
. It also is consistent with the Supreme Court’s decisions in Stanley v. Illinois, 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972); Caban v. Mohammed, 441 U.S. 380 , 99 S.Ct. 1760 , 60 L.Ed.2d 297 (1979); and Quilloin v. Wolcott, 434 U.S. 246 , 98 S.Ct. 549 , 54 L.Ed.2d 511 (1978). See note 12, supra. See Ferren opinion at 1157-1158. The court’s concern about established *1190 family relationships is relevant, notwithstanding that at the time the child was placed with the prospective adoptive parents there was no established family relationship. See Ferren opinion at 1161. Time having passed, the fact that Baby Boy C has been living with the prospective adoptive parents throughout the trial and appellate court proceedings cannot be ignored since early permanence and stability may exist by the time a custody decision is rendered upon remand. See also Ferren opinion at 1174-1176.
. At most, our standard contemplates the type of circumstances discussed in Beall v. Bibb, supra. Where the preferential claims of a parent were lost by contract, or forfeited by abandonment or misconduct, the court suggested that this would "afford very strong evidence of the want of natural affection and the lack of fitness for the charge,” and, thus “if the succeeding custodians are fit and capable persons under whose care the welfare of the children is reasonably secure, and the relations between them have become such that to sever them would be necessarily cruel or painful, the revived claims of the parents may well be denied.” 19 App. D.C. at 314 (citations to state cases omitted). See In re B.G., 11 Cal.3d 679 , 114 Cal.Rptr. 444, 446, 454-55 , 523 P.2d 244, 246, 254-55 (1974) (en banc) (California statute prescribing harm as a factor); Uniform Putative and Unknown Fathers Act § 6(d) (1988).
. Judge Ferren's caselaw and statutory analysis, see opinion Part III, seeks to categorize cases based on issues not presented and gives insufficient attention to language in opinions indicating awareness of the statutory interpretation of the adoption statute to include a parental preference. To suggest that prior decisions ignored precedent is misleading when the issues were different.
Judge Ferren’s analysis also is based on speculation that the Council of the District of Columbia intended to abandon the long-standing parental preference aspect of the best interest standard when the Council enacted Title VI of the Prevention of Child Abuse and Neglect Act of 1977. All that statute did was to authorize the termination of parental rights in an independent neglect proceeding rather than as part of an adoption proceeding. In re A.W., 569 A.2d 168, 171 (D.C.1990). The legislative history indicates that the Council intended to facilitate - the adoption of children. Id. at 171-72 ; see also id. at 174-75 (two-fold motivation for statutory change: to hold social services agencies accountable for children adjudicated neglected, and to authorize termination of parental rights in unusual circumstances in a neglect proceeding) (dissenting opinion, Rogers, C.J.). Indeed, the legislative history makes clear that the Council was concerned that unfit parents were hindering the adoption prospects of their children. Hence, the Council's focus was hardly on examining the differences between neglect and relinquishment cases. Enactment of the Title IV is fully consistent with the presumption that a child’s best interest is with a fit parent. In any event, there is nothing to suggest that the Council’s action was motivated by any constitutional concern or disagreement with judicial interpretation of the adoption statute.
Similarly, Judge Ferren’s reliance on the amendments adopted by Congress in the D.C. Court Reform and Criminal Procedure Act of 1970, Pub.L. 91-358, § 121 (a), Title I, 84 Stat. 522 , is misplaced. Section 121(a) concerns Family Division Proceedings relating to juvenile delinquency, neglect, and persons in need of supervision. It addressed the circumstances warranting state intervention in a family. Congress left the District’s adoption statute untouched. It is important not to confuse an adoption proceeding with a proceeding to terminate parental rights, since the latter proceed irrespective of the pendancy of an adoption proceeding and does not need to consider the rights of the natural parent vis a vis the prospective adoptive parents.
Furthermore, his reliance on In re Stuart, 72 App.D.C. 389, 394 , 114 F.2d 825, 830 (1940), as a basis for constitutionalizing our inquiry, is misplaced. The court's reference to the constitutional rights of natural parents arose in the context of state intervention to deprive the natural parents of custody of their child on the ground that they had failed to provide adequate care and support. The issue on appeal was the sufficiency of the evidence to support the Juvenile Court order placing custody with a stranger. The statute authorized the removal of the child from the custody of her parents "only when his welfare or the safety and protection of the public cannot be adequately safeguarded without such removal.” 114 F.2d at 832 . The court noted that "[ujnder our constitutional system, the citizen has more than a revocable privilege to possess and rear his children.” Id. Acknowledging that the right was not absolute, the court defined the limited exceptions in terms of *1191 cruelty or neglect or a parent "unfit in character or mode of life ..., [such that] the state for the welfare of the child and society may interfere.” Id. at 832-33. The court reversed on the basis of the evidence of the mother's care for the child in the face of the father’s refusal to provide child support. No such state intervention is at issue in the instant appeal and nothing in Stuart is contrary to our holdings that the constitutional right is not absolute.
. See In re D.R.M., 570 A.2d 796, 804-05 (D.C.1990) (in determining best interest of child, court may consider any factor which appears relevant under the circumstances; no abuse of discretion to consider factors under D.C.Code § 16-2353(b)); In the Matter of K.A. supra, 484 A.2d at 998 (“it may be appropriate" to apply the first four factors in D.C.Code § 16-2353(b) where custodial parents are threatened with possible termination of their rights and only if the analysis is unsatisfactory to apply the factors to other potential custodians) (dictum ("But that is for another day.")).
. Unfortunately we are not the first court to recognize that the state’s failure to accord the natural father his statutory right to notice has caused his claims to be adversely affected as a result of the passage of time during which his child has been living with the petitioning adoptive family. See In re Baby Girl M., supra, 236 Cal.Rptr. at 665 n. 6 (quoting In re Reyna, 55 Cal.App.3d 288, 304 , 126 Cal.Rptr. 138, 148 (1976)). Indeed, in an analogous situation this court has recently cautioned against the “adoption juggernaut." In re D.R.M., supra note 20 , 570 A.2d at 807-08 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9711774. Public record. Not legal advice.