Opposition — Johnson v. J. O. L.

Supreme Court brief1980

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AUG11 1980

No. 80-45 L.mciset rooak sm, cuera

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

EUGENE JOHNSON, III,

Petitioner,

LOLL., &,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF FOR J.O.L., Il, IN OPPOSITION

HAL WITT

1620 Eye Street, N.W.

Washington, D.C. 20006

(202) 828-8240

Counsel for Respondent

August 11, 1980

Washington, 0.C. « THIEL PRESS « (202) 638-4521

(t)

QUESTION PRESENTED

Is there any constitutional bar to a state statute which

authorizes adoption of a child over the objection of a

natural parent where the trial court finds, after a hearing,

that the parent’s consent is withheld contrary to the best

interests of the child, even though there is no finding

of parental abandonment.*

*Respondent’s statement of this question varies from peti-

tioner’s statement of his first question since petitioner’s statement

fails accurately to reflect the language of D.C. Code § 16-304(d)

and (e) upon which the decision below was based.

There are no grounds for the court to review the second ques-

tion presented by petitioner. There is no evidence in the decision

below which indicates that a lesser constitutional standard was

applied to a divorced parent than to one who is not divorced and

there is nothing in the statute involved below which supports the

assumption that such lesser standard was applied.

The third question presented by petitioner is also faulty as it

inaccurately assumes the “lack of any specific substantive, pro-

cedural and evidentiary standards” for the interpretation of the

adoption statute involved below.

(#)

PARTIES TO THE PROCEEDING

Petitioner is Eugene Johnson, III. Respondent is

jJ.O.L., Il. The mother of the adoptees, referred to by

petitioner as the ‘‘former wife” (Pet. i#), was not a

party below.

(122 )

TABLE OF CONTENTS

Page

QUESTION PRESENTED ... 10... eee were ener ner enee t

PARTIES TO THE PROCEEDING ........cccceeceves it

TABLE OF CONTENTS .....cccccccccesveevcesece ttt

TABLE OF AUTHORITIES... ....cccccccccscvcsvves tv

STATUTE INVOLVED... ccccccccccsecceesseveees v

STATEMENT OF THE CASE ......-cccccccccsccvvees l

ARGUMENT .cccccccrccccccesveneseseseceesese 3

CONCLUSION ..ccccciccccccecsccscnevseeeeesees 7

(wv)

TABLE OF AUTHORITIES

Cases: Page

Davis v. Smith, _— Ark. __., 583 §.W.2d 37 (1979) ....... 6

In re William L., 477 Pa. 322, 383 A.2d 1228 (1978) ....... 6

Matter of Five Minor Children, 407 A.2d 198 (Del.

1979), prob. juris. noted No. 79-5932 (S. Ct.

Ca cs isa ass passe oe bos eb esses 6

Meyer v. Nebraska, 262 U.S. 390 (1923)............000. 4

Parham v. J.R., 442 U.S. 584 (1979) ............0000. 4,5

Prince v. Massachusetts, 321 U.S. 158 (1944) ............ 4

Quilloin v. Walcott, 434 U.S. 246 (1978) ......... ee ewes 5

Smith v. Organization of Foster Families, 431 US.

EE OEE PPR Re 5

Stanley v. Illinois, 405 U.S. 645 (1972) ..........00 0 ee 4

Ward v. Faw, Va. , 258 S.E.2d 658 (1979) ....... 4,7

Statute:

aS ay Gps veo ee be sae: 1

(v)

STATUTE INVOLVED

D.C. Code § 16-304 provides:

(a) A petition for adoption may not be granted

by the court unless there is filed with the petition

a written statement of consent, as provided by this

section, signed and acknowledged before an officer

authorized by law to take acknowledgments, before

a representative of a licensed child-placing agency,

or before the Mayor of the District, or unless a

‘relinquishment of parental rights with respect to

the prospective adoptee has been recorded and filed

as provided by section 32-786.

(b) Consent to a proposed adoption of a person

under eighteen years of age is necessary:

(1) from the prospective adoptee, if he is four-

teen years of age or over; and also,

(2) in accordance with the provisions of any one

of the following paragraphs:

(A) from both parents, if they are both

alive; or

(B) from the living parent of the prospective

adoptee, if one of the parents is dead; or

the prospective adoptee; or

(D) from a licensed child-placing agency or

the Mayor in case the parental rights of the

parent or parents have been terminated by a

court of competent jurisdiction or by a release

of parental rights to the Mayor or licensed

child-placing agency, based upon consents

obtained in accordance with paragraphs (A)

through (C) of this subdivision, and the prospec-

tive adoptee has been lawfully placed under the

care and custody of the agency or the Board; or

(vt)

(E) from the Mayor in any situation not

otherwise provided for by this subsection.

that parent’s consent to adoption.

(d) When a parent whose consent is hereinbefore

required, after such notice as the court directs,

cannot be located, or has abandoned the prospective

adoptee and voluntarily failed to contribute to his

support for a period of at least six months next

preceding the date of the filing of the petition, the

consent of that parent is not required.

(e) 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 interests of the child.

(f) A person over eighteen years of age may be

adopted, on the petition of the adopting parent

or parents and with the consent of the prospective

adoptee, if the court is satisfied that the adoption

should be granted.

As amended July 29, 1970, Pub. L. 91-358, Title 1,

§ 145(a)(2), 84 Stat. 555: Oct. 22, 1970, Pub. L.

91-488, 84 Stat. 1086; July 22, 1976, D.C. Law,

No. 1-75, § 5(e), 23 D.C. Reg. No. 6, pp. 1177;

Oct. 1, 1976, D.C. Law, No. 1-87, § 12, 23 D.C.

Reg. No. 6, p. 1134.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No. 80-45

EUGENE JOHNSON, III,

Petitioner,

j.O.L., Il,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF FOR J.O.L., Il, IN OPPOSITION

STATEMENT OF THE CASE

On March 31, 1977, respondent (petitioner below)

filed a petition for adoption in the Superior Court of

the District of Columbia, Family Division, seeking

adoption by respondent of the adoptees, Judith and

Elliott. Respondent is married to the mother of the

adoptees. Petitioner (respondent below), the biological

father of the adoptees, withheld his consent to the

petition.

Pursuant to D.C. Code § 16-304(e), a full evidentiary

hearing was held on May 24, 25 and 26, 1978. The

court entered its memorandum opinion and order on

August 3, 1978, granting the petition for adoption.

Said order was affirmed by the District of Columbia

Court of Appeals on December 10, 1979 and petitioner’s

petition for rehearing en banc was denied on March 27,

1980.

Petitioner and the mother of the adoptees were

formerly husband and wife. Two children were born

of that marriage, to wit, Judith, born October 28, 1964,

and Elliott, born January 27, 1966.! Petitioner and the

mother of the adoptees separated from each other in

August 1967 and were divorced from each other on

June 28, 1968 (Pet. App. 2).

Respondent and the mother of the adoptees were

married to each other on April 25, 1969. A child was

born of that marriage on October 16, 1972. The adoptees

have lived with respondent since his marriage to their

mother, a period of over nine years, as members of a

nuclear family (Pet. App. 2). The trial court found that

respondent was a good father to the adoptees and that

they regarded him as their psychological father (Pet.

App. 3). The trial court found that respondent’s atten-

tion to the emotional needs of and development of the

adoptees has been salutary (Pet. App. 3).

In July 1972, pursuant to an order of the Superior

Court of the District of Columbia, petitioner was given

certain visitation rights with the adoptees (Pet App. 4).

Despite this order, petitioner visited with the adoptees

on only three occasions, the last such visit having oc-

curred in October 1972 (Pet. App. 4). Prior to the

July 1972 order, petitioner had seen the adoptees only

sporadically and infrequently (Pet. App. 3). Petitioner

1The decision below states that Elliott’s date of birth is Janu-

ary 27, 1967, while in fact it is January 27, 1966.

has not visited with the adoptces since October 1972.

Petitioner voluntarily ceased to make support payments

for the adoptees in February 1973 (Pet. App. 4). Peti-

tioner has been hospitalized for a mental illness and

there was some question as to his use of illegal drugs

(Pet. App. 3, 16).

There was uncontroverted evidence at trial that the

adoptees found the visits with petitioner to be emotion-

ally painful and that such visits had an adverse emotional

effect on them (Pet. App. 4, 11).

In March 1977, respondent filed the petition for

adoption, after consultation with a child psychiatrist

(Pet. App. 4). After the petition was filed the social

service department recommended that the petition for

adoption be granted (Pet. App. 9).

The trial court, in weighing the best interests of the

adoptees, found that the adoption would give final

security to the family unit of which the adoptees were

in every way an integral part and that denial of the

adoption would leave the children to wander upon a

course of uncertainty (Pet. App. 13).

The trial court held that the adoption of the adoptees

by respondent was in the best interests of the adoptees

and that petitioner withheld his consent contrary to

said interests (Pet. App. 9, 13). Accordingly, the trial

court granted the petition for adoption (Pet. App. 13).

ARGUMENT

1. Petitioner contends that the petition for writ

should be granted on the basis that the ruling below has

decided an important question of federal law affecting

a large number of divorced citizens which has not but

should be settled by this Court, and which appears in

conflict with dicta from this Court. This contention is

without merit.

Petitioner refers to recent statistics regarding the

frequency of divorce in the past decade (Pet. 16). While

such statistics are evidence of the frequency of divorce,

they do not support petitioner’s contention that adoption

by a stepparent without the consent of one of the

biological parents is a frequent occurrence or one which

affects a large number of divorced citizens. Petitioner

presents no evidence that such is the case. Indeed, the

only case cited by petitioner which involves the rights

of a biological parent in circumstances similar to those

in the decision below is Ward v. Faw, —_— Va. ___, 253

S.E.2d 658 (1979). There is no evidence in that case,

or any other cited by petitioner, as to the frequency

of such factual circumstances.

Petitioner also contends that the ruling below has

decided an important question of federal law in a manner

which ‘‘appears” in conflict with dicta from this Court.

It is important to note that petitioner does not

contend that the ruling below conflicts with any decision

of this Court. Contrary to petitioner’s contention, the

decisions of this Court are in harmony, rather than in

conflict, with the principles set forth in the ruling below.

This Court consistently has held that one of the

liberties protected by the due process clause of the

Fourteenth Amendment is the “freedom to establish a

home and bring up children.’ Meyer v. Nebraska, 262

U.S. 390, 399 (1923). See also, Parham v. J.R., 442

U.S. 584 (1979); Prince v. Massachusetts, 321 U.S. 158

(1944); Stanley v. Illinois, 405 U.S. 645 (1972). These

cases involve the issue of the constitutional limits of the

state’s power to supersede parental authority in matters

involving the health, education and welfare of minor

children in the family unit when the opinion of the

parents regarding such matters conflicts with that of

the state.

This Court has guarded jealously the integrity of

the family unit as a whole against intrusion by the

state except when the physical or mental health of the

children in the unit is jeopardized. The deference given

to the family unit is based upon the recognition “that

natural bonds of affection lead parents to act in the

best interests of their children.” Parham v. J.R., 442

U.S. at 602. It is recognition of the familial relationship

between parent and child and not their biological rela-

tionship which underlies the constitutional protection

accorded parental authority in the family unit. Smith v.

Organization of Foster Families, 431 U.S. 816, 843-844

(1977).

In Quilloin v. Walcott, 434 U.S. 246 (1978), this

Court affirmed the decision of the Supreme Court of

Georgia in granting a petition for adoption by a husband

of his wife’s illegitimate son over the objection of the

biological father and stated:

[T]he result of the adoption in this case is to give

full recognition to the family unit already in exist-

ence, a result desired by all concerned, except

appellant. Whatever might be required in other

situations, we cannot say that the State was re-

quired in this situation to find anything more than

that the adoption, and a denial of legitimation,

“was in the best interests of the child.”

Quilloin v. Walcott, 434 U.S. at 255.

The court below granted the adoption in order to give

final security to the family unit in which the adoptees

were in every way an integral part (Pet. App. 13). The

court recognized that respondent was in fact the father

of the adoptees and reasoned that the adoption would

benefit the children by providing respondent with the

full legal authority to be able to act accordingly (Pet.

App. 9, 11).

The decision below upheld the integrity of the family

unit and strengthened the parent-child bond within it.

Such decision is in harmony with the decisions of this

Court.

2. Petitioner argues that the ruling below has decided

the federal question in a way which conflicts with the

decision of another state court and involves issues related

to a cause now pending before it. This argument also is

without merit.

Petitioner refers to a recent decision of the Supreme

Court of Pennsylvania, Jn re William L., 477 Pa. 322,

383 A.2d 1228 (1978), a recent decision of the Supreme

Court of Arkansas, Davis v. Smith, __ Ark. —__, 583

S.W.2d 37 (1979), and a case in which this court has

noted probable jurisdiction, Matter of Five Minor

Children, 407 A.2d 198 (Del. 1979), prob. juris. noted

No. 79-5932 (S.Ct. March 24, 1980). All of these

cases concern the constitutionality of statutes involving

termination of parental rights rather than adoption.

These statutes are dissimilar in both language and purpose

to the adoption statute involved below and their consti-

tutionality has no bearing upon the ruling below.

Petitioner’s failure to recognize the distinction between

such statutes and adoption statutes is indicative of his

confusion regarding the distinction between family

relationships, on the one hand, and biological relation-

ships, on the other. It is the former and not the latter

to which this Court has accorded priority.

Petitioner also argues that Ward v. Faw, —— Va. ___

253 S.E.2d 658 (1979), conflicts with the decision

below. Petitioner’s reliance upon this case is ill-founded

and confused. There was no constitutional challenge to

the statute involved in Ward and no discussion of its

constitutionality either facially or as applied. Moreover,

the decision of the Supreme Court of Virginia in Ward

is consistent with the decision below. Contrary to peti-

tioner’s contention, the ruling below has not decided a

federal question in a way that conflicts with the decision

of another state court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,