# Petition — Johnson v. J. O. L. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2272%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 454 U.S. 832 ## Text _— ~ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2272%3A1. Public record. Not legal advice.