Petition — Johnson v. J. O. L.

_— ~

Office-Supreme Court, U.S,

Peeks ED

80-2101

No. JUN 8 1981

Supreme Court of the United Btasb@fberc srevas,

CLERK

October Term 1980

Eugene Johnson III, Petitioner

Vv.

J.0O.L. II, Respondent

On Petition for Writ of Certiorari to the

District of Columbia Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

Edward L. Genn

1319 - 18th St., N.W.

Washington, D.C. 20036

(202) 638-2027

Counsel of Record for

Petitioner

Gilbert J. Genn

1319 ron 18th St., N.W.

Washington, D.C. 20036

(202) 638-2027

Counsel for Petitioner

June 8, 1981

QUESTIONS PRESENTED

l. May a statute constitutionally

authorize an adoption over the objection

of a natural parent én tho ground that the

parent's non-consent is found to be "con-

trary to the best interests of the child",

whether the statute is viewed facially or

as applied to a divorced parent granted

visitation rights, where there is no paren-

tal abandonment, abuse or unfitness.

2. Whether divorced parents who have

visitation but not custody rights per se,

may be properly treated by lesser constitu-

tional standards and reasons than those who

are not divorced, such that the establish-

ing of greater security in the stepparent

unit or the avoidance of conflicts arising

from visitation orders, would be constitu-

tionally sufficient reasons for the state

to grant the permanent severance of the re-

lationship between the natural parent and

his children through its adoption statutes.

3. Whether the lack of any specific

substantive, procedural and evidentiary

standards for the interpretation of an adop-

tion statute that allows the permanent

severance of the parent-child relationship

solely on a basis of what is stated to be

the "best interests" of the children, is

constitutionally permissible as a matter

of notice and substantive right.

4. Whether following this Court's

grant of certiorari to review the foregoing

questions, and its vacating of the judgment

and remand without reaching these issues,

the subsequent failure of the appellate

cour: below to modify its prior statutory

interpretation or decisional law or eradi-

cate their effects, warrants the granting

of the Petition. |

pF

‘

LISTING OF PARTIES.

The petitioner is the natural parent,

Eugene Johnson III. As a result of the

adoption decision, the names of the respon-

dent stepparent, here called J.O.L. III or

John, and the former wife D.W.L. or Deborah.

are separately filed in view of existing

orders.

iii

TABLE OF CONTENTS

Questions Presented....ccecscrsees

Listing of POLELOS cos sv clc.b ce ectcoe

Table of Contents and Table of

AUGUEHOCICIGDS 6 d's 05s hic 00d cee ccccses

Petition for a Writ of Certiorari

Opinions and Decisions Below.....

Grounds on which Jurisdiction

is INVOKEd..eeeceeecccccsccvcces

Constitutional and Statutory

Provisions Invoked.....ccccseses

Statement of the Case....ccsccces

Reasons Relied on for Allowance

of We i 6:6 dase Rees Re awenk cent

18

l. ‘This case involves "best interests"

statutes and decisional law on im-

portant constitutional rights; and

the rulings on remand after the

prior grant of the Petition to hear

those questions, have not altered

the law nor eradicated its effects

nor entered the non-moot declara-

tory SE SE io a acta ee at

2. The law and statute at issue has

been interpreted as a matter of

federal constitutional law by the

District of Columbia in a manner

18

' that conflicts with rulings on simi-

lar laws in other jurisdictions, a

condition that warrants grant of

the PCAC Ck oc hake eh ond vice

iv

31

»

“4

OS

ConclusiOn.cccceseccecetsocescoe 32

Appendix

Grant of certiorari on cr anangcases os

1980 in No. 80-45, Johnson v. 2

$6." > i060 6. ce 6s C1980} App.

Supreme Court Order of November 17,

1980 vacating judgment and remanding

cause, Johnson v. J.O.L., U.S. ,

LOG :O.CES Sas: ClSOU osu nce ces 6 obsbie ks BPR

Docket Ent:iries (partial and after

remand) D.C. Court of Appeals. eeeeevevee App.

December 16, 1980 D.C. Court of Appeals

Memoranda on remand issue............. APP-

Order of February 9, 1980, en banc,

remanding with directions: to vacate

adoption decree....ccccccccccccccccsce APP-

Order of March 10, 1981, en banc,

issued sua sponte recalling mandate

and vacating order of February 9

directing vacating of adoption

GOCEOSs cisiccccctiecsseccccscccccccece:. App.

Order of March 10, 1981, by panel,

remanding cause for "further proceed-

ings as...appropriate".......+..ee++--+- APP.

Opinion of Trial Court (Judge Paul

Webber), Superior Court of the District

of Oe i er a oe te we inte Sue App.

Opinion and Judgment of District of

Columbia Court of Appeals............. App.

Appendix (continued)

Constitution of the United States

Amendments I, V, IX, XIV.....++-++++++ App. 28

District of Columbia Code 16-304

(a) through (BZ) co ccc cesccsvveccccepeccece App. 29-39

D.C. Tourt of Appeals decision of

In the Matter of B.K., No. 80-252,

decided March Les 198l. eeeeeeeneee@e7#eee#e App. 31-38

TABLE OF AUTHORITIES

Baker v. McCollan, 443 U.S. 137,

95 $.ct. 2689 TED) ok aise eee oc bbe 0 25

Caban v. Mohammed, 441 U.S. 380,

99 S.Ct. 1760 EPO is Casuoeee cae usee 29,30

County of Los Angeles v. Davis, 440

U.B- 835, 35 Set. TT ‘ ; Sey LST e Cera liccccuse 22 022e

‘ 25,30

Doe v. Delaware, No. 79-5932, 49 U.S.L.W.

4250 (March 10, pT INE iS ieee 5

In the Matter of B.K., No. 80-252, D.C.

App., slip opinion, decided March ll,

DL Wea weibs ses b's bhaobc ohadkces demesne 27

In the Matter of Petition of J.S.R.,

D.C.App., 374 A.2d 660 (1977).ccecees 20,21,23,

Johnson v. J.O.L., No. 80-45, UsBs

, 101 S.Ct. 69 (1980) (certiorari

MERBCEG) 0'6:b6.a v0-aic 6-0 00.6 Wels-0:0 6.6 bib O00 0.0 2,5

vi

Table of Authorities (continued)

Johnson v. J.0O.L., No. 80-45, i Be Ke

01 S.CE. 523 (1980) (judgment

MES aNT oh. os gk Coe eects

KS v. Doyle, 434 U.S. 59, 98 S.Ct.

0 (1 eeoeeeeeneeeeeeeeeeeeeeee

Linn v. Linn, 205 Neb. 218, 286 N.W.

2a 765 SE bo eo kp baal eiuiee ewes

Nebraska Press Assn. v. Stuart, 427

U.S. 539, 56 S.Ct. 2791 (1576)...

Palmore v. United States, 411 U.S.

3 §.Ce. 1670 TOTO) Gs co ekbe

Parham v. J.R., 442 U.S. 584, 99 S.Ct.

24953 PROVEN of Fd oak Shoe ce eas

Petition of Douglas, D.C. App., 390

A. eeeeeeneeeneneneeneneneneneneenenee

Petition of J.0.L. II, D.C.App., 409

“A. 2d 1073 PEP OTG sb ae biG bin oom babs

Quilloin v. Walcott, 434 U.S. 246,

. 54 Mo wiedie oOo mae s

Santosky v. Kramer, No. 80-5889,

49 U.S5.L.W. 3733 (March 31, 1981)

Smith v. Organization of Foster

Families for quay and Reform,

- + ’ = . 7)

vii

1,2

28,30

Table of Authorities (continued)

Stanley v. Illinois, 405 U.S. 645,

| Pe, 1208 PEO TA) cite wdc es

United States v. W. T. Grant, 345

U.S. 629, 73 S.Ct. 894 (1953).

Weinstein v. Bradford, 423 U.S. 147,

. 347 Cy Oh to cheeses

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Amendment I..

U.S. Constitution, Amendment V..

U.S. Constitution, Amendment IX

U.S. Constitution, Amendment XIV

STATUTES

District of Columbia Code, 1973

Edition, Sections 16-304 (a)-(f)

TREATISE

World Almanac and.Book of Facts 1980,

“Newspaper Enterprise Association,

Gosset and Dunlap Edition, 1980

viii

> te.

No.

Supreme Court of the United States

October Term 1980

>

Eugene Johnson III, Petitioner

Vv.

J.O.L. II, Respondent

On Petition for Writ of Certiorari to the

District of Columbia Court of Appeals

—— —

PETITION FOR A WRIT OF CERTIORARI

.

The petitioner Eugene Johnson re-

spectfully prays that a writ of certiorari

issue to review the judgment of the District

of Columbia Court of Appeals entered on

March 10, 1981 which resulted from this

Court's ruling of November 17, 1980 in

No. 80-45, Eugene Johnson III v. J.O.L. II,

U.S. , 101 S.Ct. 523 (1980) remanding

-l1l-,

the cause.«to that Court. The grounds and

bases of the Petition hereafter appear.

OPINIONS BELOW

On October 6, 1980 in Johnson v.

J.O.L. Il, U.S. ’ 101 §.Ct. 69

(1980), known in this Court as No. 80-45,

which sought review of the decision of

District of Columbia Court of Appeals in

the cause known as "Petition of J.0.L. IJ,"

409 A.2d 1073 (1979), this Court granted

the Petition for Writ of Certiorari

(Petition Appendix 1).

On November 17, 1980 following a

Motion to Dismiss for alleged mootness, in

that the Respondent said he would consent

to vacating the adoption order, this Court

remanded the cause for further proceedings,

without deciding the questions presented,

by its later order in Johnson v. J.O.L. II,

U.S. , 101 S.Ct. 523 (1980) (set forth

at Petition Appendix, page 1).

By an en banc Order entered the same

date, Deceniber 16, 1980, the D.C. Court of

Appeals directed the parties to file memo-

randa “on the remand issue” by January 5,

1981 (Docket Entry, App. 4).

On February 9, 1981, ostensibly acting

in part on a Motion to Remand by Respondent

and its Opposition, and noting the Suggestion

for Rehearing En Banc filed by Petitioner, the

D.C. Court of Appeals en banc directed that

the cause be remanded to the lower court

"with instructions to vacate the adoption

decree" (App. 5). No oral argument was held.

Acting sua sponte on March 10, 1981,

the court en banc then vacated that direction

to the lower court (App. 6). On the same

date, the original panel of three judges

that heard and decided the cause, taking no

action on the pending decisional law in the

District or its interpretation and issuing

no order as to the inapplicability of the

statute to the Petitioner herein, remanded _

the cause to the lower court “for such fur-

ther proceedings as the circumstances of

this case deem appropriate." (App. 7}. No

action has occurred since. This Petition

is from these actions since this Court's

remand. The decision of the trial court

appears at App. 8-20. The original Court

of Appeals decision is at App. 21-27.

JURISDICTION

The order of the District of Columbia

Court of Appeals was entered on March 10,

1981 and the mandat< issued in that court

on April 1, 198] (App. 3,7).

This Court's jurisdiction is invoked

under 28 U.S.C. 1257(3) in the light of

this Court's rulings in Palmore v. United

States, 411 U.S. 389, 93 S.Ct. 1670, 36

L.Ed.2d 342 (1973) and Key v. Doyle, 434

U.S. 59, 98 S.Ct. 280, 54 L.EG@.2d 238 (1977). a

In view of the action on October 6,

1980 by this Court in Eugene Johnson III v.

eg ae

J.0O.L. nae U.S. ’ 101 §.Ct. 69 (1980)

granting the Petition for the Writ, to de-

cide the first three questions presented, but

which have not been decided either by this

case or its tandem cause of Doe v. Delaware,

No. 79-5932, dismissed on March 9, 1981,

it is further submitted that this Court may

concurrently treat the petition as a request

for reinstatement of No. 80-45. See Doe v.

Delaware, 49 U.S.L.W. 4250 (March 10, 1981,

decided March 9, 1981) .-/

CONSTITUTIONAL AND STATUTORY

The constitutional provisions involved

are the First, Fifth, and Ninth Amendments

and to the extent analogous, the Fourteenth

Amendment of the Constitution of the United

States, all set forth in the Appendix to

this Petition (App. 28).

*/poe would not have decided our issues in

any event but was related to it. Recently,

this Court granted certiorari to hear the

evidentiary test issue in Doe See Santosky

v. Kramer, No. 80-5889, 49 U.S.L.W.

(March 31, 1981).

- 5 -

The critical statutory provisions are

set forth in D.C. Code 1973, Title 16

q 304(a) through (f). The entire Code

provision is set forth in the Appendix.

to this Petition (App. 29-30).

Particular attention, however, is

called to Title 16-304(d) and 304(e).

Title 16-304 of the D.C. Code provides in

part (a) what is required; in part (b) when

consents are necessary; and for pertinent

portions here, namely subsections 304 (d)

and 304(e) which authorize an adoption

where consents are not obtained in certain

circumstances. They read as follows:

304(d) When a parent whose consent is here-

inbefore required, after such notice as the

court .irects, cannot be located, or has

abandoned the prospective adoptee and vol-

untarily failed to contribute to his sup-

port 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.

304(e) The court may grant a petition for

adoption without any of the consents speci-

fied in this section when the court finds,

after a hearing, that the consent or con-

sents are withheld contrary to the best

interests of the child.

= 6-

STATEMENT OF THE CASE

Since this Court has already granted

the Petition for Writ of Certiorari in

No. 80-45 to review the first three questions

presented; and since, for convenience, we

have separately submitted nine copies of the

prior Petition, we *hink it unnecessary,

other than for purposes of a convenient sum-

mary of the facts and to show their relation

to what happened after the grant in No. 80-45,

to do no more than summarize some of the facts

appearing in that statement of the case on

which the prior Petition was granted. In

view of the probable need to underscore some

of these feats, however, as they relate to

this Court's remand, some detail is essential.

This action began with a Petition for

Adoption of the two natural children of this

Petitioner, Eugene Johnson , filed on March

31, 1977 by a step-father who married the

hiamaelall mother upon her divorce from the na-

tural father. The two children are Judith

-J-

and Elliott, who were 13 and 11 at the time.

The Petition by stepfather John (J.0.L.

II) for the adoption of Judith and Elliott

rested its grounds on 16 D.C. Code, 1973

Edition, Sec. 304(d) based on an alleged

abandonment, and Sec. 304(e) based on an al-

leged "best interests" standard. Eugene (E.J.

III) objected and answered at length (R. 6-14).

The critical ultimate and actual

"historical" findings are of course in the

Trial Court's opinion (App. 8-20).

For the purpose here,it is clear from

the found facts rejecting abandonment, and

from the absence of any finding of abuse,

that Eugene had his children adopted from

him in this case primarily because he exer-

cised visitation rights the mother promised

him in 1968 at the time of the divorce, which

he went to Court to obtain in 1971 and 1972,

and which he never had thereafter.

The found facts indisputably reflect

that the children involved in this proceeding

following the example or directions given them,

refused to go on visitations; resisted visi-

tations; stated that they did not care about

their natural father, and neither wanted to

see him, nor would see him; and in general,

whether derived from either the natural mother

or stepfather and their own misperceptions,

so acted as to create the very conditions

which resulted in the litigation, delays and

ultimate decree (App. 10-13; 18-20).

The only found basis of the “adoption,”

in short, rests upon what the Trial Court's

Memorandum Opinion conceded was at the heart

of the problem: "the considerable resistance”

to Eugene's exercise of his natural visitation

rights; the fact that the children "would

create a ruckus” and "refuse to accompany him

anywhere", the "times" he was "insulted" and,

in the end, how the court accepted that fact

as likely to continue, and so decided to re-

solve that condition by severing the relation-

ship permanently based on a "best interests”

standard (App. 19-20; R. 205-208).

- 9 -

Those found facts also directly relate

to good faith and the issues of continuing

impact or effect, even if the adoption Order

is vacated. A declaration that both the

Order and statute are unconstitutional was

sought and is now sought for future claims.

The trial court stated that it was "in

sympathy with the pain" that permanent sever-

ance would cause Eugene (App. 18; R. 205).

It acknowledged and conceded that Eugene's

visits "from the time of his divorce until

the last visit in 1972 (were) often against

the desire of (the children's) mother and

petitioner (John)" (App. 14; R. 201, emphasis

added). Its findings acknowledged and con-

ceded that to exercise his rights, Eugene

"continually sought legal recourse" (App. 14;

R. 201), and although he received the legal

right, it was, in fact, what went on when it

was exercised (the ruckus, the resistance, the

insults) that induced him to cease pressing

for the right; and, as the court acknowledged

and found, "at the expense of much personal

- 10 =

pain (Eugene) decided to discontinue his

visits with the hope that when the children

were older, they would recognize the affection

he felt for them and understand that he was

a legitimate part of their lives" (App. 11;

R. 198). These findings also affect good

faith issues.

The court not only found these facts,

it found more. It even found that it was

Eugene's very "continued interest in his

children which precipitated the (adoption)

action" itself (App. 14; R. 201). It, of

course, found no abandonment at all even

though visitation stopped after the last

ruckus in 1972 (App. 14; R. 201). It found

that throughout the natural father's actions---

even in stopping his visitations with his

children because of the "adverse emotional

effect" they had (App. 18, R. 205), and the

"emotional disturbance” those visitations

caused (App. 20; R. 206) ine were all

“motivated by parental love and concern

rather than dereliction of duty” (App. 15-16;

= Rm

R. 203). It is to these ultimate and found

"historical" facts that the "constitutional"

facts, standards and principles must apply.’

The Court of Appeals’ Opinion used a

term never found in fact below --- that these

visitations caused "extreme emotional stress".

That fact aside, it is clear from even its

extensions of the findings that there was no

claim that the children were in actual ther-

apy or in need of it, that they were being

treated or that there was anything Eugene did

that affected the children other than exercise

his settlement divorce and court-ordered

visitation rights.

The cause and reason for the cessation

of visits is undisputed. After Eugene's

hospitalization in 1967 and during the period

awaiting divorce and thereafter, Deborah (the

natural mother, D.W.L.) insisted there be no

¥

~ It is also to them that the issues of

"mootness" must be directed in view of

the unilateral consent to vacating the

Order by respondent after the pendency

of the case for 3-1/2 years. The Court of

Appeals, ruling on our issues and relying

on prior law, found the statute and order

procedurally and substantively constitutional

(App. 23-27). me, & eae

visitations unless a third person be present.

That third person was the stepfather who mar-

ried Deborah. All parties agreed that Eugene

objected to that demand and therefore saved

some money to go to court for another Order.

The need of the father to go to court to ob-

tain a Court Order to get anything; the will-

ingness of Deborah to do anything to prevent

him from seeing the children; his agreement

pending final hearing to a third party's pre-

sence if it were not the stepfather; and the

final Order that no third person was to be

present were the background circumstances

that led, finally, to his ceasing to visit

until the ruckuses would stop and the child-

ren were of age to accept him.

There was sonsidereble evidence of

different life-styles arising from the wealth

of the mother and stepfather, and the modest

circumstances of the natural father (W.Tr. 40,

- 13-

T.Tr. 22) .-/

Even accepting all of the extensions of

the findings by the appellate ruling (since

vacated, while the Trial Court ruling and

findings remain), the issue was not the legal

sufficiency for the court to find adverse

emotional effects from the visitations, but

the constitutional sufficiency of those facts;

and whether the Order was constitutional.

There was no doubt, as in many visi-

tation cases, that there was stress; and no

doubt the children stated that they preferred

the stepparent unit. They each recognized,

however, as the son said, if adoption were

not granted and "if we lost, it wouldn't

change my life” (F.Tr. 247-248); that "the

big advantage of the adoption would be to

keep Gene (the father) from coming around”

*/ The tenor of the findings recognized

the differences in life styles between the

natural parents (the father was not only

forced to pick up the children at the servant's :

entrance, T.Tr. 102-3, but he decided to go to

court the third time because as the Trial

Court noted, he felt his children were in a

"sheltered cocoon.” App. 19, and Answer).

(W., T., F., referred to the date of the week

of the transcript).

-14-

-~ -

a

and “sort of declare (us) legally (a family)”

(F.Tr. 248). As the daughter said, it would

mean that they would not be "hassled" as she

was on her birthday "which made me upset...

got some roses that said ‘from your loving

father, or ‘'dad' or something like that.

And, we wouldn't have to bother with any of

those. And no phone calls or visits or

anything like that ... it was sort of bother-*

some .... It just made me upset.” (F.Tr. 236,

238).

The idea of a lesser alternative such

as counselling or something short of perma-

nent severance was ignored or rejected at all

levels --- psychiatrically and in the Opinions

below in the Court of Appeals and the Trial

Court. It is clear from the facts, includ-

ing the mother's admissions, that whatever had

to be done by way of litigation or delay would

be done to stop Eugene from having either a

right to or any actual contact with these

children.

~- 18 <

Our summary of pertinent Opinions, supra,

covers what occurred since the Order of Remand

in this Court (App. l.).

This Court's Order, referring the matter

back to the D.C. Court of Appeals, did not

act on the mootness issue as such, raised in

the pleadings. It left the matter to that

court (App. l.).

The Court of Appeals Opinions at issue

(App. 5-7) did nothing regarding the already-

existing law, both as to the statute, and in

the earlier case law interpreting it as con-

stitutional; nor did they do what was primar-

ily sought --- a declaration of the unconsti-

tutionality of the statute or any adoption

Order, including the existing one, based on

a “best interests" standard. Thus, the

prior rulings, and law, still binding on the

Trial Court, were left standing, and the

declaratory aspect of the case passed over.

Nowhere after remand did the respondents

either offer to confess error or commit them-

selves to acts that in the words of the 1979

.

- 16-

+

decision of County of Los Angeles v. Davis,

440 U.S. 625, 631 (1979), would or might have

"completely and irrevocably eradicated" the

effects of the prior action.

They have not agreed to any visitation

as the Memoranda below showed, nor therefore

to any compensatory time for the constitu-

tional violation; nor did they even take one

step in the Trial Court to this very date,

or since the March 10 Order to do anything,

although the Motion was theirs.

They have thereby confirmed the evidence

of lack of good faith charged in Petitioner's

responses and papers, here and below. These

facts form the basis of the record to support

the contention why these questions, not

Gecided earlier, nor by Doe v. Delaware, nor

any other case, should be heard; why they are

not moot; why the writ should be granted now

or No. 80-45 reinstated; and how the Court of

Appeals did nothing to eradicate the ongoing

effect.

-i7 <=

REASONS FOR ALLOWANCE

ae: Mh

1. This case involves common “best interests"

statutes and decisional law on important

constitutional rights; and the rulings

on remand after the prior grant of the

Petition to hear those questions, have

not altered the law nor eradicated its

effects nor entered the non-moot declar-

atory relief.

In our prior Petition we noted that,

statistically, for every three or less mar-

riages, there will be one divorce obtained;

that in 1970 there were roughly 2,158,000

reported marriages and 708,000 divorces;

but by 1977, with a much larger population,

marriages increased only 20,000 while di-

vorces exceeded 1,090,000 with the trend

thereafter continuing in that proportion.

See the World Almanac and Book of Facts

1980, by Newspaper Enterprise Association,

Grosset & Dunlap Edition, pp. 951-952, 964.

Of that yearly number, a significant

percentage affect not only the parents but

the children of those divorces.

» 16 <

We noted that this Petition is about

intrusion of the "State" --- here the Dis-

trict of Columbia --- into the relation of

a divorced natural parent with his natural

children, and its authorization through its

adoption statutes of the permanent severing

of that relation where there was no aban-

donment, abuse or unfitness on his part and

no compelling necessity to grant the dracon-

ian relief of adoption for the alleged

avoidance of stress over visitations and

contacts with a natural father.

We urge that the scope, breadth and

important issues of federal law at issue

were sufficiently self-evident for this

Court to grant the Petition in No. 80-45.

Since the issues were not decided here,

nor properly addressed below; since the mat-

ter is capable of repetition and the effects

not either eradicated or even capable of

being irrevocably eradicated; since Doe v.

Delaware did not resolve them; since the

need for declaratory relief as to the un-

«~19.<

constitutionality of the statutes and order

is necessary and "live"; since these are is-

sues that few cases, if any, could raise so

Clearly on such a plain record, they should

be heard here.

In short, the scope and breadth of

the common "best interests" statutes and

the still-existing decisional law in this

cause, so similar to that elsewhere, is

still undecided.

In this regard, we recognize that the

primary reason not to hear the cause may be

a claim of mootness.

We therefore address it now.

It will be noted that in the original

appellate decision at bar, the entire con-

stitutional case rested on two decisions,

In the Matter of Petition for Adoption of

J.S.R., D.C.App., 374 A.2d 860 (1977) de-

Claring the act at issue here constitutional,

and Petition of Douglas, D.C.App., 390 A.2d

1 (1978) applying a clearly erroneous evi-

- 20 -

dentiary test. See Petition of J.O.L., 409

A.2d 1073, 1074-6 (1979), set forth in the

Petition Appendix at App. 21. References to

J.S.R. at App. 23-26, and Douglas at

App. 22 show how it rested on prior law.

Nothing in the decisions below declares

that J.S.R. is no longer the law, that the

statutes are unconstitutional, or that the

original order is invalid (App. 5-7).

It may be urged that since Respondent

coneents to the vacating of the decree there

is no more relief to be given.

It will be noted that as matters now

stand the Trial Court is still bound by

J.S.R.; under United States v. W. T. Grant,

345 U.S. 629 (1953), if the matter is capa-

ble of repetition, it is not moot; the

movant has the heavy burden of persuasion;

and voluntary cessation of the conduct does

not make the case moot. Nor is that all.

No case, Weinstein v. Bradford— in-

cluded, has had facts where the litigant

“/423 U.S. 147, 149 (1975).

= 21 @

picks the time to consent and himself ren-

ders the decision too short for full appel-

late review of its constitutional questions

by a last minute consent.*/

The later decision of County of Los

Angeles v. Davis, 440 U.S. 625, 631 (1979)

is especially appropriate because it takes

part one of Weinstein and adds that mootness

and abated jurisdiction will only arise if

"interim relief or events have completely

and irrevocably eradicated the effects” of

the constitutional wrong. (440 U.S. at 631).

kk

That has not occurred here.—

First is the utter failure of the D.C.

Court of Appeals to declare anything about

the statute or the prior order or to address

the bad faith claims.

Second is the continuing loss that

cannot be made up meaningfully.

*

~/see Nebraska Press Assn. v. Stuart, 427

U.S. 539 (1976) which Limits Weinstein by

referring to its provision about short dura-

tion orders to refer not merely to trial but

"plenary review in this Court" 427 U.S. at

547. By himself waiting for argument for a

voluntary consent, the party can always a-

void "plenary review in this Court"; (eee

such action is to be deemed within Weinstein

exceptions or Weinstein does not address it.

kk

—— Davis does not even cite Weinstein.

- 22 -

Third is the long continuing delay.

Fourth, J.S.R.‘'s declaration of the

statute's constitutionality is still in ef-

fect and binding on the lower court. In

addition, the respondents have refused to

confess error. Thus when the issue of

visitation arises, and even assuming the

adoption order is vacated at some time (the

claims of bad faith aside), the manner in

which this long period of lost relationship

must be viewed and addressed --- whether as

a constitutional wrong to be redressed as

such,or simply a quitting by respondent ---

is a continuing uneradicated effect that is

"live" and needs declaratory determination

at the appellate level or this level. If it

is an unconstitutional deprivation as we

have urged, then the right to strong cor-

rectives and the right to “make-up” is pre-

cisely that, an important loss of a right

still unadjudicated, whatever the order at

the trial level.

- 233-

If on the other hand it was not that

kind of deprivation, then the only issue

is not one of a right, but some discretion-

ary appeal to the lower eae:

Bearing in mind that the setting

aside of the adoption order, even at re-

spondents' behest, warrants other relief,

the issue is whether that relief is thus

a matter of right or discretion.

It is anaiogous to the difference

between a "nol pros" offered at the last

minute and a legal ruling as to unconsti-

tutionality or a finding of not guilty,

each of which may serve as a different ba-

sis for future effects than may a nol pros.

Indeed, this is more severe because of the

continuing lost relationship while the

children approach majority.

In short, if the statute hd been

changed; if the D.C. Court of Appeals had

heard argument, issued a ruling and over-

ruled J.S.R. and Douglas or otherwise

- 24 @-

declared the inapplicability of the law and

the invalidity of the prior order to Mr.

Johnson now or in the future; if it con-

sidered our points and articulated an ap-

pellate ruling that allowed the lower Court

to avoid J.S.R. or grant Mr. Johnson other

relief as a matter of special remedy for a

claimed constitutional infringement, it

could be arguably urged that the heavy

burden to show mootness under the ent tn

W. T. Grant or County of Los Angeles v.

Davis has been met (although the issue of

good faith involving the past historically-

supported acts of bad faith, would still re-

quire consideration). It did not occur, however.

Particularly since every day is a loss

in the relationship, and while a short-term

loss may not rise to a constitutional depri-

vation (Cf. Baker v. McCollan, 443 U.S. 137

(1979) in another context), the long-term one

here and the unilateral nature of the attempt

oo 2B

at the last minute are pertinent to the

basis for further claims by this Petitioner.

Respondents have used the District of

Columbia statute and its courts.

The effects remain; the threat of

repetition, especially given the past,

remains. No statute is changed; no case

law has been changed; the children grow

Older and with 4 years now lost, more

delay will end up with the children reach-

ing majority while the issue of unconstitu-

tional wrongs and irrevocably lost time in

the relationship, proceeds in court. Even

if the Order is vacated one day and respon-

dents one day begin to move (presumably as

slowly as they can so that the age of ma-

jority is closer at hand), the test for the

remedy and the effects on what will follow,

are not resolved, have not been eradicated,

and will not be finally adjudicated.

Interestingly, the very panel that

issued the March 10 Order and the original

_

- 26<

Opinion, since vacated, recently cited

J.S.R. with approval in a March 1l, 1981

Opinion. See In the Matter of B.K., No.

80-252, D.C.App., set forth in the Appen-

dix to this Petition, App. 31-38, holding

that a clear and convincing evidence test or

standard is not constitutionally required.

With no full eradication of effects

now, nor any contemplated by the rulings

below, nor even a ruling that may be used

to address the declaratory relief involved

in further claims, the Court of Appeals has

preserved the effects to this day (App. 5-7).

This brings us to the reasons that

persuaded this Court to hear the matter the

first time.

While, in other contexts, decisions

of this Court have addressed some of the

issues that are related to the specific

questions on this Petition, none has di-

rectly dealt with the important procedural

and substantive rights of divorced parents.

ao y ee

It is a point noted in our original Peti-

tion which remains true to this day.

Certainly dicta, assumptions or res-

ervations in the past decade of cases in

this area have implied that: (a) a "best

interests" standard in a state or parental

termination statute cannot be constitu-

tionally used to cause the "breakup of a

natural family." See Smith v. Organization

of Foster Families for Equality and Reform,

431 U.S. 816, 862-863 (1977) (Stewart, J.,

concurring in judgment), cited with approv-

al in Quilloin v. Walcott, 434 U.S. 246,

255 (1978); (b) Smith itself clearly ap-

pears to recognize the importance of the

"biological" relation and, while not ex-

Cluding foster parents as "family" also

seems to indicate that the "controversial"

"psychological parent" theory is not per se

a sufficient constitutional basis for elim-

inating the fundamental parent-child rela-

tionship summarized in Stanley v. Illinois,

405 U.S. 645 (1972). See Smith, 431 U.S.

816, at 843-847 and ftn. 52; (c) recently in

=~ 264

Parham v. J.R., 442 U.S. 584 (1979) this

Court emphasized in a different context

where state intrusion appears more limited,

justified, or does not involve permanent

severance, then, natural parents and not

the state retain the substantial if not

dominant role with regard to children, ab-

sent a finding ae heolect or abuse; that a

child is not a creature of the state; and

that statist notions allowing governmental

power to intrude in these relations absent

the most compelling reasons of essential

need is repugnant to our traditions ;~or as

noted in Stanley, 405 U.S. at 650, absent

a powerful countervailing interest, the

natural parent-natural child relation un-

deniably “warrants deference (and) protec-

tion"; (d) in Caban v. Mohammed, 441 U.S.

380 (1979), this Court's Opinion expressly

left open the question whether adoption is

permissible absent a showing of unfitness.

Parham, 442 U.S. at 602-603.

- 29 -.

Caban, 441 U.S. at 394, footnote 16. In

that same decision, which incidentally fol-

lowed Quilloin's adoption of the concurr-

ing statement in Smith, Justice Stewart

appears to read that concurrence as one

assuming “that each married parent after

divorce has some substantive due process

right to maintain his or her parental

relation...." 441 U.S. at 397.

Undoubtedly some language in Quilloin

may be read to imply a distinction in sub-

stantive and procedural protections be-

tween divorced parents and an existing

family unit. On the other hand, Quilloin's

emphasis on the fact that the father there,

unlike the divorced parent, had never been

ade facto member of the child's family unit

suggests that if there is a distinction in

when the state may intrude, it will require

a good deal more of specificity in the

statutory standards of "best interests" and

a great deal more than the most expansive

reading of this record --- adverse emotion-

al effects over visitation and greater se-

curity in the stepparent unit --- to over-

come the constitutional rights at issue.

(e) The grant of our own Petition in No.

80-45 urging these points is itself enough

to show the reason why the writ should

issue, unless on this Court's remand, the

matter no longer reflects a case where its

effects are"alive” and "irrevocably erad-

icated." See points supra and those noted

in County of Los Angeles v. Davis, 440 U.S.

625, 631 (1979) and cases there cited,

showing here the still continuing effects.

2. The law and statute at issue has been

interpreted as a matter of federal con-

stitutional law, by the District of

Columbia in a manner that conflicts

with rulings on similar laws in other

jurisdictions, a condition that warrants

grant of the Petition.

In our prior Petition (No. 80-45),

we observed that there is a conflict among

the states on this issue. See Petition,

- 31 -

pp. 22-23 and cases cited. We would add to

these cases, Linn v. Linn, 205 Neb. 218, 286

N.W.2d 765 (1980). It is directly contrary

to J.S.R. That, too, warrants this review.

CONCLUSION

It is now over four years since the

Petition for Adoption in this case was

filed and more than five years since Mr.

Johnson renewed his request for visitation .

granted in three prior court cases (the

divorce and the two post-divorce proceed-

ings).

Mr. Johnson has not seen nor had a

right to see his children for years, not

just months.

Ever since the ruling in this Court,

no steps have been taken at all to allow

visitation, nor since the February 9, 1981

Order have respondents taken action on the -

adoption order in spite of their solemn

= 32 -

representations that were in good faith.

The issues simply were not addressed after

remand.

Following this Court's Order of

November 17, 1980 vacating the judgment

below for a re-examination by the D.C.

Court of Appeals, no court in the District

of Columbia has declared the invalidity of

the statute, nor the invalidity of the

adoption order as it relates to further

Claims, nor even the nonapplication of

both to Petitioner; nor has any change in

the underlying case even occurred.

The public interest in resolving, this

law remains strong. The effects remain.

For these reasons and those in the

Petition No. 80-45 that need no further

repetition here, the Petition deserves to

be granted.

Edward L. Genn

Counsel of Record for

Petitioner

Gilbert J. Genn

Counsel for Petitioner

= 33 -

INDEX TO APPENDIX

Grant of certiorari on October 6,

1980 in No. 80-45, Johnson v. J.O.L.,

U.S. , 100 S.ct. 69 (1980]....... 1

Supreme Court Order of November 17,

1980 vacating judgment and remanding

cause, Johnson v. J.O.L., U.S...

100 s.ct. 523 CLOSU) ccdveehecececvoccouee 1

Docket Entries (partial and after

remand) D.C. Court of Appeals....ssee- 2-3

December 16, 1980 D.C. Court of Appeals

‘Memoranda on remand TSSURccccscvcecscese

Order of February 9, 1980, en banc,

remanding with directions to vacate

QGOPCION GOCTOC. .ccccccvcccecceccevcccce 5

Order of March 10, 1981, en banc,

issued sua sponte recalling mandate

and vacating order of February 9

directing vacating of adoption

GOSPERi cis seeeseccceeesesecectececsccce 6

Order of March 10, 1981, by panel,

remanding cause for “further proceed-

ings as...appropriate".....ceseeeeeees 7

Opinion of Trial Court (Judge Paul

Webber), Superior Court of the District

of EN ns bia ieila gud Webs Bide os Oe.eee 6 4 8-20

Opinion and Judgment of District of :

Columbia Court of Appeals.........+... 21-27

Appendix

Page

Constitution of the United States

Rees: t, 'Fi TR, KaVasccccccteces 28

District of Columbia Code 16-304

(a) through CP eV berameoeescewee ce’ 29-30

D.C. Court of Appeals decision of

In the Matter of B.K., No. 80-252,

decided March Lis EEA ots Ghiea-e-k or ele'e boa 31-38

ii

EXTRACTS FROM MEMORANDUM DECISIONS,

101 Supreme Court Reporter

101 S.Ct. 69:

2

Eugene JOHNSON III, petitioner, v.

J.O.L. II. No. 80-45.

Facts and opinion, D.C.App., 409 A.2d

973.

Oct. 6, 1980. Petition for writ of cer-

tiorari to the District of Columbia Court

of Appeals granted. The case is set fo:

oral argument in tandem with Doe v.

Delaware, 445 U.S. 942, 100 S.Ct. 1336,

-2d 775.

101 S.Ct. 523:

3

Eugene JOHNSON III, petitioner, v. J.

O.L. Lie No. 80-45.

Former decision, 101 S.Ct. 69.

Facts and opinion, 409 A.2d 1073.

Nov. 17, 1980. On petition for writ of

certiorari to the District of Columbia Court

of Appeals. Judgment vacated and case

remanded to the District of Columbia Court

of Appeals for further consideration in light

of the position presently asserted by the

respondent in his motion to dismiss filed

October 27, 1980; the opposition filed there-

to by petitioner on November 6, 1980; and

the reply filed thereto by respondent on

November 13, 1980.

App. 1

EXTRACTS FROM GENERAL DOCKET

IN D.C. COURT OF APPEALS

14014 GENERAL DOCKET

DISTRICT OF COLUMBIA COURT OF APPEALS

(409 A.2d 1073, 2-22-80)

APPEAL FROM SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

(Adoption)

TITLE OF CASE

IN THE MATTER OF:

The Petition of J.0O.L. II

for the Adoption of Minor Children,

EUGENE SOHNSON III, Appellant.

NO. BELOW: 92-77

COURT BELOW: FAMILY DIVISION

JUDGE BELOW: Paul R. Webber III

DATE OF JUDGMENT: August 9, 1978

NOTICE OF APPEAL FILED: August 9, 1978

App. 2

kkk

(Pertinent Docket Entries Below)

DATE FILINGS~PROCEEDINGS

12/16/80 ORDER amending this Court's 11/25/80

order to permit the record to be

unsealed and to be made available

to counsel for appellant and

counsel for appellee until Monday,

1/5/81, the date on which the par-

ties are to file memoranda address-

ing the remand issue (KyFPry) cmj

1/5/81 Memorandum of appellant on motion

to remand (m-5) ag

1/5/81 Memorandum of appellee on motion

to remand (m-5) ag

1/7/81 Suggestion of appellant for hear-

ing en banc(m-7) - pp

1/16/81 Received Appellee's Opposition to

suggestion for hearing en banc

2/2/81 Received Apvellant's Reply to

Opposition

2/9/81 ORDER that case is remanded to

Superior Court with instructions

to vacate the adoption decree

(NwKyKnGNbHMFPry) cmj

3/3/81 MANDATE ISSUED kk

3/10/81 ORDER recalling mandate and vacat-

ing this Court's 2/9/81 order.

(Judges Newman, Kelly, Kern,

Nebeker, Mack, Ferren and Pryor)

mkw .

3/10/81 ORDER remanding case to the trial

court for such further proceedings

as deemed appropriate. (Judges

Kelly, Ferren and Pryor) mkw

4/1/81 MANDATE ISSUED kk

App. 3

DISTRICT OF COLUMBIA

COURT OF APPEALS FILED

DECEMBER 16, 1980

IN THE MATTER OF:

The Petition of J.O.L. II

for the Adoption of Minor Children,

No. 14014

EUGENE JOHNSON III, Appellant.

92-77

BEFORE: Kelly, Ferren, and Pryor,

Associate Judges.

On consideration of appellant's mo-

tion to modify order of November 25, 1980,

and for other relief and of appellee's

response filed with respect thereto, it is

ORDERED this Court's November 25,

. 1980, order is hereby amended to permit the

record to be unsealed and to be made avail-

able to counsel for appellant and counsel

for appellee until Monday, January 5, 1981,

the date on which the parties are to file

memoranda addressing the remand issue.

PER CURIAM

copies to:

Honorable Paul R. Webber II

Clerk, Superior Court

Edward L. Genn, Esquire

1319 18th Street NW, 20036

Hal Witt, Esquire

1620 Eye Street NW, 20006

App. 4

DISTRICT OF COLUMBIA

Bt COURT OF APPEALS F | LED

FEBRUARY 9,198)

IN THE MATTER OF:

The Petition of J. O. L. II

for the Adoption of Minor Children,

EUGENE JOHNSON III, Appellant.

92-77

BEFORE: Newman, Chief Judge; Kelly, Kern,

Gallagher, Nebeker, Harris, Mack,

Ferren, and Pryor, Associate Judges.

This Court has considered the parties'

memoranda on the motion to remand and the

suggestion for hearing en banc, and it

appearing that the majority of the judges

of this Court has voted to remand the case

to the Superior Court, it is

ORDERED that this case is hereby

remanded to the Superior Court with instruc-

tions to vacate the adoption decree.

PER CURIAM

(copies were to the same parties

as on previous order)

App. 5

Ficeo

Marcu (0 1981

DISTRICT OF COLUMBIA

COURT OF APPEALS

En Banc Order

SuA SPoNTE VACATING

No. 14014 FEBRUARY 9,198! OrverR

IN THE MATTER OF:

The Petition of J.0O.L., II

for the Adoption of Minor Children,

Family 92-77

EUGENE JOHNSON, III.

Appellant.

BEFORE: Newman, Chief Judge; and Kelly,

Kern, Nebeker, Mack, Ferren and

Pryor, Associate Judges; and

Gallagher, Associate Judge.

Retired.

It is ORDERED, sua sponte, that the

mandate issue by this Court on March 3,

1981, is hereby recalled, and the Clerk of

the Superior Court is directed to transmit

said mandate to the Clerk of the District

of Columbia Court of Appeals forthwith.

It is

FURTHER ORDERED that this Court's

order of February 9, 1981, is hereby

vacated.

PER CURIAM

(copies to parties listed

on previous order)

App. 6

DISTRICT OF COLUMBIA

COURT OF APPEALS F | LE D

MARCH 10, 1931

IN THE MATTER OF: Pane ORDER

The Petition of J.O.L., II

for the Adoption of Minor Children,

Pamily 92-77

EUGENE JOHNSON, III, Appellant.

No. 14014

BEFORE: Kelly, Ferren and Pryor,

Associate Judges.

On consideration of the parties'

memoranda on the motion to remand, it is

ORDERED that this cause is hereby

remanded to the trial court for such fur-

ther proceedings as the circumstances of

this case deem appropriate.

PER CURIAM.

(copies were to the same parties

as on previous order)

App. 7

ma,

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

FAMILY DIVISION

EX PARTE IN THE MATTER OF )

the Petition of John 0. LaGorce, II) Adoption

for the Adoption of Minor Children ) No. A92-77

MEMORANDUM OPINION AND ORDER

Petitioner, J.0.L. filed the petition

herein for the adoption of his wife's two

minor children by a previous marriage.

Respondent, the natural father of the minors,

withheld his consent to the proposed adop-

tion effectively halting any furtherance of

petitioner's cause. 1/ Petitioner sought

relief from the court pursuant to 16 D.C. Code

REKKEKKKEKKKKKKKKRKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKK

1/ 16D. C. Code 1973

§304 (a) A petition for adoption may not

be granted by the court unless there is

filed with the petition a written state-

ment of consent, as provided by this sec-

tion, signed and acknowledged before an

officer authorized by law to take acknow-

ledgements, before a representative of a

licensed child-placing agency, or before

the Commissioner of the District, or

unless a relinguishment of parental rights

with respect to the prospective adoptee

has been recorded and filed as provided

by section 32-786. (R. 195)

App. 8

1973 §304(d) and (e), 2/ and at the hearing

on this matter, requested a finding in accor-

dance with said provisions, that the respon-

dent had abandoned his children and therefore

his consent was not required, or in the al-

ternative that respondent's consent was being

withheld contrary to the best interests of

the minors and therefore the petition should

be granted. (R. 196)

I

Respondent and the children's mother were

married to each other on May 5, 1961. The

couple had two children, J.H.J. born on Octo-

ber 28, 1964 and E.E.J. born on January 27,

1967. In August 1967 the parents separated

and on June 28, 1968 they were divorced.

Custody of both children was awarded to the

mother, and respondent by agreement was or-

dered to pay $75.00 per month towards the

support of each child.

On April 25, 1969 the mother and

petitioner were married and over the last

nine years they have lived together with

both children and the couple's first

child, born on October 16, 1972, as mem-

bers of a nuclear. family. Petitioner, a

kkkkhkkkhkhkhkhhhkhkhhhkhhkaekkakhkhekhekkahkhhhkhhkhkhekkek

2/ §304(d) When a parent whose consent is here-

‘inbefore 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 sonsent 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.

App. 9

41 year old volunteer schoolteacher, has es-

tablished himself as the surrogate father of

the two children involved. The record is

replete with acts which manifest the sincer-

ity of his affection for them, and his at-

tention to the emotional needs and develop-

ment of these youngsters has been salutary. ,

It is clear that respondent is a good father

to these children and that they in turn iden-

tify with him as their psychological father. :

Petitioner and his wife are financially se-

cure and there is no issue regarding their

ability, independently or collectively, to

provide for the material needs of the chil-

dren. (R. 197)

Respondent is a 39 year old experimental

psychologist. After his divorce in 1968 he

visited his children regularly until August,

1969 when he was hospitalizedfor a mental ill-

ness at the George Washington Psychiatric

Clinic. After a brief stay of approximately

twelve days he was released and in September, -

1969 began visiting the children again. Des-

pite his denials, the children's mother be-

lieved that respondent was a chronic schizo- -

phrenic and she insisted that petitioner be

present during the visits with the children.

Respondent did not favor this condition but

abided by it until February, 1970 when his

twice monthly visits ceased. During this

period respondent initiated five telephone

calls in an effort to contact the children,

but the parties could reach no agreement re-

garding the conditions for a visit and con-

sequently none occurred.

After his last telephone call on Novem-

ber 1, 1970 respondent had no further con-

tact with petitioner's family until eight be

months later in July, 1971 when he brought

an action in the Family Division of the

Superior Court in case number D 2065-71 to

obtain less restricted visitation privileges

with his children. In that month an order

pendente lite was issued in said case granting

App. 10

respondent twice weekly visitation privileges

in the presence of a third party other than

petitioner. On July 20, 1972 a final order

was entered pursuant to a settlement agree-

ment, according respondent liberal visitation

privileges without the presence of any third

party. After this respondent visited with

the children three more times, the last oc-

casion being in October, 1972.

On the visits following the pendente lite

order respondent encountered considerable

resistance from the children. They would

create a ruckus and refuse to accompany him

anywhere. At times he was insulted, and he

was also accused of wishing to break up their

family. (R. 198)

The children complained that respondent

badgered them regarding their lack of affec-

tion for him and made derogatory remarks

about their mother. By his own admission

respondent recognized that he was ggrericen

his children in a position of great emotional

conflict, and at the expense of much personal

pain, decided to discontinue his visits with

the hope that when the children were older

they would recognize the affection he felt

for them and understand that he was a legit-

imate part of their lives. Respondent ter-

minated his support payments in February

1973 because of his belief that they were

unnecessary to provide for the needs of the

children. The children's mother has ex-

pressed no desire to secure the resumption

of those payments.

This action, filed in. March, 1977, was

precipitated by a telephone call that respon-

dent made to the children's mother request-

ing a photograph of them. Because there had

been no communication from him since October,

1972 the mother felt it would be wrong to

honor the request without professional ad-

vice. She consulted a child psychiatrist

who recommended that no photograph be sent

and that petitioner consult with legal counsel.

App. ll

Subsequently, this petition to adopt the

minor children and thereby terminate re-

spondent's rights as their natural father

wae .G470e- (R. 199)

II

The petition alleges that respondent's

consent is not required because he has aban-

doned his minor children.3/ In accordance

with the statutory scheme it is the court's

duty to determine whether.such an abandon-

ment has occurred.

The termination by law of the rights of

a natural parent to his children on the

grounds of abandonment is one of the most

severe steps that a court may take. "The

finality of the termination and the harsh

connotations cf a finding of ‘abandonment'

carry great emotional impact on both the

child and the parent". In re Adoption of

Sarver, 281 A.2d 890, 891 (Pa Io7iT. Accor-

dingly; the court will be unwilling to make

such a finding unless the record clearly war-

rants it.

The District of Columbia Code is silent

as to the criteria to determine abandonment

in a civil proceeding and, likewise, no ap-

pellate decision of this jurisdiction es-

tablishing such has been presented to the

court.4/ The overwhelming majority

KREEKKEKEEKKEEKEEEREKEEKEEKEEKKEKKEKKKKKKKEKKKKKKKKKE

3/ Id. § 304 (d)

4/ In the abandonment cases presented from

this jurisdiction, the factual determina-

tion of abandonment had been settled be-

low and the issue of what constituted

abandonment was not before the appellate

court. See In the Matter of C.A.P., 356

A.2da 335 (D.C.C.A. 1976). Petition of

J.E.G. and M.K.G., 357 A.2d 855 (D.C.C.A.

1576). White v. In the Matter of N.E.M.,

358 A.2d 329 (D.C.C.A. 1976)

App. 12

of jurisdictions, however, are of the view

that an abandonment within the purview of

the adoption law must be absolute, commlete

and intentional.5/ (R.200) Abandonment hy

a parent therefore, means the neglect and

refusal to perform the natural and legal ob-

ligations of care and support or conduct

which evinces a settled purpose to forego all

parental duties and all parental claims to

the children. In re Adoption of Sarver,

supra., In re Farquharson, 102 N.¥.S. 2d 230

(1950); Stalder v. Stone, 412 I1l1. 488, 107

N.E.2d 696 (111.1952); Shumway v. Farley,

68 Ariz. 159, 203 P.24 307 (aviz. 1949)~

Certain specific acts of conduct may be

distilled from the general case law as evi-

dence of abandonment. Where the necessary

criteria have not been established by statute,

courts faced with this issue have focused in

varying degrees, on whether the children were

left permanently or identifinitely(sic) in

the care of others;6/ whether the parent has

deserted the children;7/ the voluntariness

of the separation;8/ the period of time with-

out any contact and the reasons pooadary ng 4

and the failure of the parent to provide for

the support of the children.10/

RkKKRKKKKKKKKRKKKKKKKKKKKKKKKKKKKKKKKKKKKKRKKKKK

5/ Annot., 35 A.L.R. 2d 622, 664 (1954)

. 6/ In re Ewing, 96 Ida. 424, 529 P.2d 1296

; Finn v. Rees, 65 Ida. 181, 141

P.2d 976 (1943)

7/ Shumway v. Farley, supra; In re Mayfield,

r. 409, P.2d 984 (1938); In re

Davis, 142 Misc. 681, 255 N.Y¥.S. 416

8/ In re ya lpole § Agoptron 5 I11.App. 2d

, _ 7. 55)

9/ In re Lieblich's Adoption, 207 Misc. 793,

10/ Annot., 35 A.L.R. 2d supra. 683 (1954).

App. 13

(R. 201)

As a divorced parent without custody,

respondent had limited contact with his chil-

dren and fairness demands that he be judged

accordingly. Respondent made several visits

with his children from the time of his divorce

until the last visit in 1972, often against

the desire of their mother and petitioner,

and continually sought legal recourse when-

ever that right was threatened. Though he

prevailed in his efforts to secure that right

he eventually ceased to exercise it when he

perceived the potential for harm to these

children. Despite the fact that five years

passed between his last visit and the filing

of the petition for adoption, respondent's

motives militate against a finding of aban-

donment. Ironically, it was his continued

interest in his children which precipitated

this action that may terminate his parental

rights. Petitioner admitted that the request

for photographs was viewed as a signal that

respondent intended to re-enter the chil-

dren's lives and both he and his wife feared

the psychological effect that might have

had on them.

Based on these facts the court finds

that respondent lacked the requisite intent

for a finding of abandonment. In a similar

case in Pennsylvania, the natural mother had

not contacted her child in six years. She

had refrained from doing so at the request

of the child's guardian who was concerned

that the child was becoming confused that

she should have two mothers. The mother

stated that she complied with the request

because she did not wish to upset her own

child. The Supreme Court of Pennsylvania

in reviewing the case found that these mo-

tives were inconsistent with a finding that

the mother intended to abandon the child.

In re Adopt ton of Sarver supra. While that

ecision is not binding in this jurisdiction,

the court finds the factual evaluation there-

in as being persuasive in the case at bar.

App. 14

(R. 202)

The petition also raises the issue of

respondent's failure to provide any support

over the last five years. While the court

does not sanction such conduct, under the

circumstances of this case and the prevailing

state of the law, it does not find petition-

er's argument persuasive. Only a few courts

have taken the position that this criterion

alone is sufficient to establish abandonment

and then such failure to support has been

held as not even tending to establish an

abandonment where such conduct is excused by

the circumstances.11 Our own statute im-

poses a burden on the court to find that

respondent "abandoned the prospective adop-

tee and voluntarily failed to contribute to

his support..."12 Giving the statute its

plain meaning, the legislative intent appears

to be that the court must first reach a con-

Clusion as to the question of abandonment

and then couple it, where present, with

respondent's failure to support. This en-

sures that lack of support be present before

termination of parental rights on a finding

of abandonment, but excludes it as a factor

to be given great weight on the central is-

sue of abandonment.13/

(R. 203)

When measured against this stan-

dard respondent's action appears to

have been motivated by parental love

and concern rather than dereliction

RkkKKKKKKKKKKKhhhhhhkhhhhhhhhhhhhhhhhhhhhkhehenk

11/ Id 680; a C.J.S. Adoption of Persons

§ 61(b) (1972)

12/ See n. 2

13/ In resolving this issue, the court takes

into consideration the fact that the

children's mother, a person of substan-

tial financial resources, acquiesced

in respondent's non-support. See Smith

v. Crivello, 338 I1l1.App. 503, 88 N-.E.

App. 15

of duty. For these reasons the court can-

not find that respondent's conduct evinces

a settled intent to forego all parental du-

ties and claims to his children sufficient

to constitute an abandonment.

Iit

The petition also alleges that it is in

the best interests of the minor children that

they be adopted; that respondent's consent is

withheld contrary to said interests; and that

pursuant to 16 D.C. Code 1973 § 304(e) the

court should grant the petition for adoption

over respondent's objection.

It is the primary function of the court

in these matters, to determine the best

interests of the children and whether respon-

dent is withholding his consent contrary to

those interests. In re Petition for Adopt-

tion, 313 A.3d 874 (D.C.C.A. 1974). In re

Adoption of a Minor, 97 U.S.App.D.C. 99,

228 F.2d 446 (1955). Petitioner has pro-

vided uncontroverted evidence of the emotional

stability and physical well-being of the

children in their present home. Petitioner's

psychiatrist testified that the children

accept petitioner as their psychological

father and the court is urged to recognize

in law what is already a fact. The recom-

mendation of the social service department

also cites this fact as the basis for its

conclusion that the petition should be

granted.

There is no question that the home

petitioner provides for the children is

the appropriate environment in which

they should be reared. Unlike

App. 16

the cases cited to the courtl4/ the outcome

of this action has no bearing on that fact.

Custody of the children rests with the mother

and the family unit will remain intact as

long as petitioner and his wife wish.

(R. 204)

After the issue of custody is taken from

consideration the effect of an adoption on

the children's welfare would be manifest in

the following ways. It would legitimatize

the status of the children in their home and

terminate respondent's legal right to have

access to them.

The former has been recognized as a

valid concern which must be weighed in peti-

tioner's favor as being in the best interest

ot the children. This is especially true,

whereas here, the evidence indicates that

the children consider petitioner their fa-

ther, often using his surname as their own.

This issue was addressed in a situation

where a petition for adoption was denied as

not being in the child's best interest be-

cause the petitioner was of a different

race. The court held that:

The child is living in the happy

home of its natural mother and

stepfather, receiving the same

loving care they give to the two

children born of their marriage.

That it is in the best interests

of the child to live in that home

with the natural mother is obvious.

kRkhkhkhhhhkhhkhhhhkhhhkhhhkhkhhkhhkhhhhhhhhhhhhkhhhhhhk

14/ In re J.H., 313 A.2d 874 (D.C.C.A. 1974);

In re Adoption of a Minor, 79 U.S.App.D.C.

191, 144 F.2d 644 (1944); In re Adoption

of a Female Infant, 237 A.2d 768 (D.C.C.

e on of J.E.G. and M.K.G.,

AR. 1968); Petiti

357 A.2d 855 (D.C.C.A. 1976).

App. 17

It is equally plain that the child

will continue to live there no mat-

ter what disposition is made of the

case. Hence denial of adoption

could only serve the harsh and injust

end of depriving the child of a legi-

timatized status in that home.

In re Adoption of a Minor, 97 U.S.App.D.C.

}. Furthermore, it has been

held in this jurisdiction that the right of

parenthood is greater than having mere cus-

tody.15/ Petitioner will bear all the bur-

dens of being a father to these children as

they grow up and it will be to their bene-

fit to provide him with the full legal

authority to be able to act accordingly.

(R. 205)

An adoption also results in a corres-

ponding name change. While this fact alone

is not of overriding importance, in view of

the children's past behavior regarding this

factor, there is no doubt that it will pro-

moted the sense of security they would enjoy

within the established family unit.

The other effect of an adoption would

be to terminate respondent's legal right

to visit with his children. The court

is in sympathy with respondent because

the pain this would cause is understood.

However, the record is clear that his

visits have an adverse emotional effect

on the children. Respondent not only

admits the fact but stresses it as his

reason for refraining from visiting them

for the past five years. When discuss-

ing this resentment that his children feel

kkkkhhhhhhhhhhhhhhhhhhhhkhhhkhkhhkhhhhhkkhhkhheahak

15/ In re J.H., 313 A.2da 874, 875 (D.C.C.A.

13974)

App. 18

towards him respondent acknowledges that

"the probability is that they will not

change". Nevertheless, respondent urges

that the petition should be denied to pre-

vent the father from anymore hurt than he

has already endured. Unfortunately, the

power of the court's writs falls short of

the control of human emotions. Ever mindful

of the pain it may cause, the ruling of this

court must be according to law. The adoption

proceeding is a creature of statutes and is

a right that was unknown at common law. In

re Jarboe's Estate, 235 F.Supp. 505 (D.C.D.

s such, those statutes evince

the will of the legislature and pursuant

thereto it is the best interest of the chil-

dren that must receive the overriding con-

cern of the court. While respondent's in-

terests as their natural father must not

be unreasonably discarded, they must sit

lighter in the scales of justice.16/

(R. 206)

These matters inherently involve pre-

dicting the future to some degree, but the

court has not been imbued with the powers

of a clairvoyant. The risk of error there-

fore accompanies any decision that it may

render. However, if there is error the

overwhelming conclusion based on the statu-

tory scheme must be that the court should

err in favor of the best interests of the

children.

Respondent for five years failed to

exercise his right to visit. A failure

he states was based on his own concern

because he recognized the emotional dis-

turbance that his visits created. Never-

theless, he argues that he should be al-

lowed to retain this right, in light of

all the other benefits it would deny the

children, so he may force the children

from the "sheltered cocoon" in which

HRHEKARKHEKEREKKHEEEKRERREKKKKKKKKKKKKKKKKKKKKREK

16/ 2 C.J.S. Adoption of Persons s 93

(1972)

App. 19

they exist and into the real world to

acknowledge him as their father. There is

merit in the contention that these children

should acknowledge respondent's love for

them as their natural father, but the course

of action recommended to achieve that result

is dubious: at best. When viewed from the

children's point of view, the choice is be-

tween giving final security to the family

unit of which these children are in every

way an integral part or leaving them to

wander upon a course of uncertainty in the

hope that someday they will be able to ac-

cept and benefit from respondent's love.

The past experience suggests, and respon-

dent admitted that that hope is a slim one.

Based on this record, a ruling favoring

the adoption is warranted.

In light of the statutory mandate and

the evidence presented it is the conclusion

of the court that the adoption is in the

best interests of the children and that re-

spondent is withholding his consent contrary

to said interests.

(R. 207)

Accordingly, it is this 3rd day of

August, 1978,

ORDERED that the petition for adoption

herein, be, and hereby is, granted.

Paul R. Webber, III

JUDGE

Copies to: Hal Witt, Esq., 1620 Eye Street,

N.W., Washington, D.C. 20006,

Attorney for Petitioner

Edward L. Genn, Esq., 1341 G

Street, N.W., Suite 610, Wash-

ington, D.C. 20005, Attorney

for Respondent

App. 20

(Officially reported as "Petition of

J.0.L." in 409 A.2d 1073.)

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14014

IN THE MATTER OF:

The Petition of J.0.L. IZ

for the Adoption of Minor Children,

EUGENE JOHNSON III, APPELLANT.

Appeal from the Superior Court of the

District of Columbia

(Hon. Paul R. Webber ITI, Trial Judge)

(Argued September 21,1979 Decided December 10, 1979)

Edward L. Genn for appellant.

Hal Witt, with whom Janice S. Pohl was on the brief,

for appellee. ;

Before KELLY, FERREN and Pryor, Associate Judges.

Pryor, Associate Judge: Over the objection of appel-

lant, the natural father of two children, the trial court

granted a petition for the children’s adoption by the step-

father. Appellant appeals, asserting that (1) the “best

interests of the child” standard of D.C. Child*Code 1973,

§ 16-804(e) is substantively and procedurally unconstitu-

tional as applied to a natural parent; and that (2) the

* (sic)

App. 21

trial court erred in concluding there was clear and con-

vincing evidence in the record to reach 2 conclusion that

adoption by appellee is in the best interests of the chil-

dren. After reviewing the case, we do not find that the

court’s judgment is erroneous or without evidence to sup-

port it, Petition of Douglas, D.C.App., 390 A2d 1, 3

(1978), therefore, we affirm. (409 A.2d 1074)

Appellant and the children’s mother were married in

1961. The couple had two children, the adoptees, one on

October 28, 1964, the other on January 27, 1967. The

parents separated in 1967, and were divorced on June 28,

1968. Custody of the children was awarded to the mother

and by agreement, appellant was.obliged to make monthly

child support payments.

On April 25, 1969, the mother and appellee were mar-

ried and began living together with the adoptees. In

October 1972, a child was born to the couple. The three

Appellant is a forty-year-old experimental psychologist.

After his divorce from the adoptees’ mother in 1968, he

visited his children regularly until 1970. As a conse-

quence of a continuing dispute between appellant and

the children regarding visitation, appellant stopped visit-

ing the children. Attempts were made to resolve the

’ problem, but the parties could not reach agreement.

Thereafter, appellant brought an action in court and was

eral occasions to visit his children but encountered con-

1 This period of visitation was interrupted briefly when, in

August 1969, appellant was hospitalized for approximately

twelve days for mental illness. Thereafter, in September

1969, appellant began visiting the children again.

App. 22

siderable resistance from them. Recognizing that his

visits were upsetting the children, appellant decided to

stop visiting them until they were mature enough to

understand the situation.

In March of 1977, having had no communication from

appellant since October 1972, the children’s mother re-

ceived a phone call from appellant requesting a photo-

graph of the children. This prompted consultation with a

child psychiatrist. Not long afterwards, this action was

instituted.

The trial court conducted an extensive hearing on the

petition for adoption. The court heard from the children

(in camera), the natural parents, and the stepfather.

Witnesses testified about the interaction of the children

with the appellee and their relationship with their nat-

ural father. A child psychiatrist stated his views as to

the mental health of the children. ,

The court found that both of the adoptees viewed appel-

lee as their “real father” and that he had become the

psychological parent of the children. There was evidence

that the children were under extreme emotional stress

as the result of being legally obligated to visit with

their natural father, but not desiring to do so. There was

some question as to the appellant’s mental health and his

- fllegal use of drugs. :

Acknowledging that the appellant at no time aban-

doned his children or otherwise abused them, the trial

judge nevertheless concluded that the father’s consent

to their adoption by appellee was being withheld con-

trary to the children’s best interests.

L

We are concerned with a statute which, in pertinent

part, reads as follows:

o App. 23

4

The court may grant a petition for adoption

without any [consent from natural parent(s) ]

. when the court finds, after a hearing, that

the consent or consents are withheld contrary to

the best interests of the child. [D.C. Code 1973,

$ 16-304 (3) .]

We previously upheld the constitutionality of this statute

in In the Matter of Petition for Adoption of JS.R., D.C.

App., 374 A.2d 860 (1977). Appellant attempts to dis-

tinguish the facts in this case by arguing that in J.S.2.,

supra, this court ruled on the facial constitutionality of

tion can properly be drawn in interpreting some statutes,

we find that in this instance the argument is, in large

measure, circular in nature. To argue that the adoption

of a child without the consent of a natural parent, pur-

suant to a statutory standard of “best interests of the

child,” is defective constitutionally is to return to the

issues raised and discussed in J.S.R., supra. (1075)

In J.S.R., supra, as in the instant case, it was the

natural parent who questioned the constitutionality of

§ 16-304(e). While the appellant in that case did not

specifically challenge the statute as applied to a natural

parent, in reaching our conclusion that § 16-304(e) was

net unconstitutionally vague, we noted, with approval,

that the “best interest of the child” standard has been

applied “in custody disputes between parents, and be-

tween parent and nonparent [as well as] .. . in child

neglect cases ... .” J.S.R., supra at 863 (footnotes

omitted). We see no reason to deviate from this standard

in cases where natural parents challenge the adoption of

their child by a stepparent, even where there is no show-

App. 24

ing of abandonment and custody is not an issue in the

case. The underlying objective is the same and that is

to arrive at an arrangement that will be in the best

interest of the child. This arrangement may require that

the court (1) leave circumstances as it finds them, (2)

change the custody of the child, or (3) grant a petition

for adoption. The arrangement will be that which the

trier of the fact finds to be in the best interest of the

child. 7

cumstances, foreseeable and unforeseeable, will vary

less flexible. In J.S.R., supra at 863, we said:

To say that such standard lacks precise mean-

ing is not to say that it is without content and

...» We think it is plain that the stand-

ard “best interest of the child” requires the

judge, recognizing human frailty and man’s

_ 8In Bazemore v. Davis, D.C. App., 394 A2d 1377, 1383

(1978), this court stated that:

|

re

Coles v. Coles, D.C. App., 204 A.2d 330 (1964).

App. 25

limitations with respect to forecasting the fu-

ture course of human events, to make an in-

formed and rational judgment...

The cumulative lesson of this approach is that it cannot

operate with pinpoint precision but, more importantly,

does allow the trial judge to evaluate the persons involved

and the choices available. In this instance the trial judge

applied the statute by considering at least the following

factors: (1) questions of family stability, (2) present

and future effects of adoption or non-adoption on the

child, (3) interaction between the child and the con-

testants, (4) who the child perceives as his or her psycho-

logical parent, (5) the child’s adjustment to his or her

living situation, school, and community, and (6) mental

and physical health of all interested parties.

Accordingly, we find no merit to the contention that

the statute was unconstitutionally applied.

IL

As an additional ground for reversal, appellant urges

that the trial court erred in concluding there was clear

and convincing evidence jn the record from which it could

reach a conclusion that the adoption by appellee is in the

best interest of the children.

During the course of a three-day hearing on the peti-

tion for adoption, the trial court heard from all inter-

ested parties, observed the demeanor of the witnesses and

interviewed the adoptees in his chambers. The court

found that the adoptees live in the home of their natural

mother and stepfather both of whom assume an active

role in the supervision and development of the children.

The natural mother and stepfather love and care for

the children as they do the child of their marriage.

*409 A.2a 1076

App. 26

7

In reaching the conclusion that adoption was in the

best interest of the children, the trial court noted:

_ Respondent for five years failed to exercise

his right to visit. A failure he stated was based

on his own concern because he recognized the

emotional disturbance that his visits created

[sic]. Nevertheless, he argues that he should be

allowed to retain this right, in light of all the

other benefits it would deny the children, so he

may force the children from the “sheltered

cocoon” in which they exist and into the real

world to acknowledge him as their father. There

is merit in the contention that these children

should acknowledge respondent’s love for them

as their natural father, but the course of action

recommended to achieve that result is dubious

at best. When viewed from the children’s point

of view, the choice is between giving final

security to the family unit of which these chil-

dren are in every way an integral part or leav-

ing them to wander upon a course of uncer-

tainty in the hope that someday they will be

able to accept the benefit from respondent’s love.

The past experience suggests, and respondent

admitted that that hope is a slim one. Based on

this record, a ruling favoring the adoption is

warranted. [Mem. Opinion and Order at 12.)

We are satisfied from a review of the record that the

court’s judgment is not erroneous or without evidence

to support it.

Affirmed.

App. 27

CONSTITUTION OF THE UNITED STATES

AMENDMENT I~-FREEDOM OF RELIGION, SPEECH

AND PRESS; PEACEFUL ASSEMBLAGE; PETITION

OF GRIEVANCES

"Congress shall make no law respect-

ing an establishment of religion, or pro-

hibiting the free exercise thereof; or

abridging the freedom , € Speech, or of the

press; or the right of the people peaceably

to assemble, and to petition the Government

for a redress of grievances."

AMENDMENT V

"No person shall be...deprived of

life, liberty, or property, without due

process of law....”

AMENDMENT IX

"The enumeration in the Constitution,

of certain rights, shall not be construed

to deny or disparage others retained by

the people.”

AMENDMENT XIV

"Section 1. All persons born or

naturalized in the United States, and sub-

ject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.”

App. 28

DISTRICT OF COLUMBIA CODE

TITLE 16

CHAPTER 3

ADOPTION

§16-304. Consent

(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 relinquish-

ment 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 fourteen 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

(C) from the court-appointed guard-

ian of 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 juris-

diction or by a release of parental

rights to the Mayor or licensed child-

placing agency, based upon consents ob-

tained in accordance with paragraphs

(A) through (C) of this subdivision, and

App. 29

the prospective adoptee has been law-

fully placed under the care and custody

of the agency or the Board; or

(E) from the Mayor in any situation

not otherwise provided for by this sub-

section.

(c) Minority of a natural parent is not

a bar to that parent's consent to adop-

tion.

(d) When a parent whose consent is here-

inbefore required, after such notice as

the court directs, cannot be located, or

has abandoned he prospective adoptee and

voluntarily failed to contribute to his

support for a period of at least six

months next preceding the date of the fil-

ing of the netition, 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.

(£) 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 I, § 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,

8 12, 23 D.C.Reg. No. 6, p. 1134.

App. 30

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 80-252

IN THE MATTER OF: B.K., APPELLANT.

Appeal from the Superior Court of the

District of Columbia

(Hon. James A. Washington, Jr., Trial Judge)

(Argued February 19, 1981 Decided March 11, 1981) *

Melvin A. Marshall for appellant.

Richard B. Nettler, Assistant Corporation Counsel,

with whom Judith W. Rogers, Corporation Counsel, and

Charles L. Reischel, Deputy Corporation Counsel, were

on the brief, for appellee. David P. Sutton, Assistant Cor-

poration Counsel, also entered an appearance for appellee.

Before KELLY, FERREN and, PRYOR, Associate

Judges.

PER CURIAM: The District of Columbia has the

authority pursuant to D.C. Code 1978, $§ 16-2301, -2320,

to protect a “neglected child” by removing that child

from the custody of his or her parents. In this appeal,

the father of a child found to be “neglected” challenges

* The original disposition of this case was by an unpub-

lished Memorandum Opinion and Judgment. The motions

for publication were granted.

(860-A]

App. 31

2

both the finding below and the constitutionality of the

D.C. Statute. We deem appellant’s arguments to be with-

out merit and therefore affirm.

I

The young girl, B.K., whose present and future well-

being is the central] concern of this proceeding, was born

on September 19, 1978, at the Georgetown University

Hospital. Both her parents have been diagnosed as suf-

fering from undifferentiated paranoid schizophrenia. Al-

though appellant argues that the court below incorrectly

focused on the parents’ mental illness rather than the

well-being of the child, it is clear from the record that

the parents’ condition was considered relevant only inso-

far as it pertained to their ability to provide proper care

for B.K. The evidence showed that they were unable to

do so, and that when in their care, B.K.’s physical and

emotional health was threatened.

During the period while she was in the hospital de-

livering her baby, B.K.’s mother exhibited strange be-

havior which prompted further examination by staff psy-

chiatrists. The mother’s condition was diagnosed as a

“classic case of schizophrenia” and the prediction was

that she would be unable to comprehend her child’s emo-

tional and physical needs. Although the Child Protective

Services Division of the Department of Human Resources

was apprised of the situation by doctors at Georgetown,

there was no direct intervention by the Division at that

time. On February 16, 1979, the Child Protective Serv-

ices Division was again contacted about this unfortunate

situation when the father of B.K.’s mother informed the

Division that his daughter and appellant had been ar-

rested while standing in the middle of the street, ap-

parently under the influence of drugs. The events which

finally caused intervention by the Protective Services Di-

[360-B]

App. 32

vision began on March 23, 1979, when pedestrians ob-

served appellant and B.K.’s mother, with B.K. in a strol-

‘ler, walking downtown at about 11:00 p.m. According

to the pedestrians, appellant and B.K.’s mother appeared

to be disoriented and intoxicated, and B.K. was scream-

ing. This alarmed the pedestrians who approached the

' couple. At that point, B.K.’s mother walked away and,

after arguing with the pedestrians, appellant also left.

The pedestrians then took B.K., who was clad only in

a thin cloth pajama, into the Embassy Row Hotel where

they called the police. After police arrived on the scene,

B.K.’s mother appeared at the hotel. Since she appeared

to be intoxicated, the officers transported her to the de-

toxification unit of the D.C. General Hospital. Mean-

while, B.K. was taken into custody by the Youth Di-

vision of the Metropolitan Police Department.

That night, a police officer and an investigator for the

Protective Services Division visited the Kalorama Road

house where appellant lived with B.K. and B.K.’s mother.

According to their testimony, and the testimony of an

inspector for the Housing and Community Development

Department who inspected the house on March 27, 1979,

the. premises were, to put it mildly, not very pleasant.

There was plaster falling from holes in the ceiling, cracks

in the walls, no adequate kitchen facilities, dirty pampers

strewn all over the floor, profuse odors, human and ani-

mal feces on the first and second floors, broken windows

in the bathroom and, due to a structural defect, water

was leaking on exposed wiring. According to the housing

inspector, these conditions were dangerous and constituted

a health hazard.

When he was visited on the night of March 23, 1979,

by the police officer and the housing inspector, appellant

agreed to permit the Child Protective Services Division

to provide emergency care for B.K. However, on March

[360-C}

App. 33

4

27, 1979, B.K. was released into the custody of her

mother, who at that time expressed her willingness to

cooperate with Protective Services. Only a few days later,

during the evening of April 3, 1979, B.K. was again taken

into protective custody. Customers and employees in a

restaurant had observed B.K.’s mother, seated at a table,

swinging B.K. through the air. With each swing, B.K.’s

head came perilously close to colliding with the table top.

The acting manager of the restaurant, after talking to

B.K.’s mother, became concerned for the safety of the

child and called the police. All the while, appellant was

seated at the bar, apparently oblivious to the situation.

When the police arrived, B.K. and her mother were taken

into custody. B.K. was placed in shelter care at St. Ann’s

Infant Home.

At this point, the Protective Services Division began a

more thorough investigation of the circumstances sur-

rounding B.K.’s care and both parents underwent physical

and mental examinations. On April 10, 1979, a petition

was filed in Superior Court alleging that B.K. was a

“neglected child” under D.C. Code 1978, § 16-2301 (9)

(B) & (C)2

1 The term “neglected child” means a child—

s**t

(B) who is without proper parental care or control, sub-

sistence, education as required by law, or other care or

control necessary for his physical, mental, or emotional

health, and the deprivation is not due to the lack of

ma ee

(C) whose parent, guardian, or other custodian is unable

to discharge his responsibilities to and for the child

because of incarceration, hospitalization, or other physi-

cal or mental incapacity; ... [D.C. Code 1973, § 16-2301

(9) (B) & (C).)

[860-D]

App. 34

5

A lengthy factfinding hearing was conducted in the

Superior Court Family Division beginning on October

15, 1979. Extensive testimony was heard from case’

workers and psychiatrists regarding B.K. and her parents.

Appellant’s landlady and a Catholic priest testified on

behalf of B.K.’s parents. At the conclusion of the evi-

dence, the court issued its findings of fact and ruled

that the government had shown, by a preponderance of

the evidence, that B.K. was neglected within the meaning

of the statute. A dispositional hearing, pursuant to D.C.

Code 1978 Supp., § 16-2320(a) (2) and (3), was held on

December 18, 1979, and B.K. was placed in the custody

of her maternal grandparents.

II

We emphasize at the outset that the order below does

not terminate parental rights but merely determines cus-

tody of the neglected child for a period of two years,

at which time further proceedings must be held. See In

-ve: H.M.,D.C.App., 386 A.2d 707 (1978).

The trial court correctly stated that in a neglect pro-

ceeding the government must prove its case by a “pre-

ponderance of the evidence.” This is clear from the stat-

ute itself. D.C. Code 1973, § 16-2317(c) (2). Appellant,

2 The pertinent section reads:

(c) If the Division finds in a factfinding hearing that—

**2¢

(2) the allegations in a need of supervision or

neglect petition have been established by the pre-

ponderance of the evidence,

the Division, after giving the notice required by sub-

section (2) of this section, shall proceed to hold a dis-

positional hearing. ...

(360-E]

App. 35

however, argues that because the ruling below separated

him from his child, and thus threatens the sanctity of his

family, see Moore v. City of East Cleveland, 431 U.S.

494 (1979), the Constitution requires that the standard

of proof be “clear and convincing evidence.” In In re:

J.S.R., D.C.App., 874 A.2d 860 (1977), we stated that the

consequences of a finding that parental consent to an

adoption was being withheld contrary to the best interests

of the child are “far more severe than those of a finding

of neglect.” Jd. at 864. Nonetheless, we held that, al-

though the higher standard of “clear and convincing evi-

dence” was warranted in the adoption case, it was not

constitutionally required. Therefore, it follows that in a

neglect proceeding the Constitution does not require the

“clear and convincing evidence” standard.

Our holding in In re: J.S.R. is not altered by Adding-

ton v. Texas, 441 U.S. 418 (1979), in which the Supreme

Court held that due process requires the “clear and con-

vincing” standard of proof in a civil proceeding brought

to commit an individual involuntarily for an indefinite

period of time to a state mental hospital. The individual’s

liberty interest at stake in Addington is greater than

appellant’s interest in retaining custody of his child, par-

ticularly when balanced against the interest of the state

in protecting neglected children.

On the basis of the record in this case, we are satisfied

the child was shown to be neglected by a preponderance

of the evidence. We note also that the trial court stated

in its findings that even under the “clear and convincing”

standard the government had made its case. That exemp-

lifies both the solicitousness of the trial court for the

interests involved and the great weight of the evidence

presented by the government.

[360-F'}]

App. 36

7

Ii

Appellant also challenges the constitutionality of the

neglect statute pursuant to which the petition was

brought. We cannot quarrel with appellant’s assertion

that the state must tread carefully when it intrudes upon

the integrity of the family unit. See Moore v. City of

East Cleveland, supra; Wisconsin v. Yoder, 406 U.S. 205

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

court recognized that fundamental er in In re:

JS.R.:

The right of a natural parent to raise one’s

child is a fundamental and essential one which

is constitutionally protected. However, it is not

an absolute one. The state has both the right

and the duty to protect minor children through

judicial determinations of their interest. To this

end, the state has a substantial range of au-

thority to protect the welfare of a child, and the

state’s legitimate interest in the child’s welfare

may be implemented by separating the child

from the parent. [Supra at 863 (citations

omitted) .]

Appellant contends the statutory definition of a “ne-

glected” child is vague, and therefore unconstitutional. In

order to withstand a vagueness challenge the statute must

state its standard with adequate clarity and make suf-

ficiently distinct boundaries for the law to be fairly ad-

ministered. Roth v. United States, 354 U.S. 476 (1957).

The Supreme Court has reminded us that in considering

vagueness, statutes which do not involve First Amend-

ment freedoms must be evaluated in light of the facts of

the case at hand. United States v. Mazurie, 419 U.S.

544 (1975); see In re: A.B., Jr., D.C.App., 895 A.2d

59, 61 (1978). The statute in question here may be broad

(860-G]

App. 37

in its coverage, but we are not persuaded that it is vague.

We point out that “proceedings under this type statute

demand and provide a certain amount of elasticity to the

court.” Matter of C.M.S., 609 P.2d 240, 244 (Mont.

1979). The statute requires an investigation into the

circumstances of the particular case and provides clear

guidelines for determining whether a child is neglected.

On the facts of this case, there is no question that such

a finding was proper. An

(860-H)

App.38