Appendix — M. H. v. T. J.
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APPENDIX
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 94-FS-140
94-FS-274
94-FS-277
IN RE: T.J., M.D., & C.J., APPELLANTS,
Appeals from the Superior Court of the
District of Columbia
(Hon. Stephen F. Eilperin, Trial Judge)
(Argued May 11, 1995 Decided September 21, 1995)
Before WAGNER, Chief Judge, and STEADMAN and
KING, Associate Judges.
KING, Associate Judge: T.J., a five-year old boy
(“adoptee,” “child,” or “T.J.”), M.D., T.J.’s maternal
great-aunt (“great-aunt”), and C.J., T.J.’s_ mother,
(“mother,” “natural mother,” or “C.J.”), are appealing
the Superior Court’s order granting the adoption petition
of M.H., T.J.’s foster mother, (“foster mother”) and
denying the custody complaint of the great-aunt. The
neglect, adoption, and custody cases were consolidated.
and the adoption and custody issues were tried before
Judge Stephen F. Eilperin in November 1993. The par-
ties to the consolidated cases were the District of Colum-
bia (“District”); the child, through his court-appointed
guardian ad litem; the foster mother, the adoption peti-
tioner; the great-aunt, the custody complainant: and, the
child’s parents, the mother and D.L. (“the father”). At
trial, the District, the guardian ad litem, and both the
child’s parents supported the great-aunt’s custody peti-
tion. We reverse.
2a
I. Procedural History
A. The Neglect Case
The proceedings began in the trial court as a petition
filed by the government on April 17, 1991, pursuant to
D.C. Code § 16-2301 et seq., alleging that the child, then
19 months old, was a neglected child. Following an in-
itial court hearing, held the same day, the court found
probable cause to support the neglect allegations and
placed the child in shelter care with the D.C. Department
of Human Services (“DHS”). The child was subsequently
placed at St. Anne’s Infant and Maternity Home (“St.
Anne’s”), an institutional facility for neglected children,
where he remained for approximately one year. On Jan-
uary 23, 1992, following a trial on the neglect petition,
Judge Gregory E. Mize adjudicated the child neglected
pursuant to D.C. Code § 16-2301(9)(C)," because of
the mother’s mental illness. Judge Mize specifically re-
jected a neglect adjudication pursuant to D.C. Code § 16-
2301(9)(B), because the child was not without “proper
care or control, subsistence, education . . . or other care
or control necessary for his physical, mental or emotional
health.” DHS then, through a private foster-care agency
on contract with DHS, For Love of Children (“FLOC”),
placed the child in foster care with the foster mother and
1D.C. Code § 16-2301(9) in relevant part provides:
The term “neglected child” means a child:
(A) who has been abandoned or abused by his or her parent,
guardian, or other custodian; or
(B) who is without proper parental care or control, subsis-
tence, education as required by law, or other care or control
necessary for his or her physical, mental, or emotional health,
and the deprivation is not due to the lack of financial means
of his or her parent, guardian, or other custodian; or
(C) whose parent, guardian, or other custodian is unable to
discharge his or her responsibilities to and for the child be-
cause of incarceration, hospitalization, or other physical or
mental incapacity.
* # *
3a
J.S., her female companion. On March 31, 1992, follow-
ing a disposition hearing on the neglect case, the trial
court entered a disposition order committing the child to
DHS.
Thereafter, the trial court conducted regular review
hearings in the neglect case during which the court re-
ceived information on the mother’s condition, including
psychiatric evaluations and assessments. On July 8, 1992,
the great-aunt appeared in court and expressed interest in
obtaining custody of the child. On November 5, 1992,
having been advised that DHS and FLOC would be
recommending an immediate change in placement for the
child to the great-aunt’s home, the foster mother filed a
petition to adopt the child. On May 24, 1993, the great-
aunt filed a complaint for custody, which was consoli-
dated with the neglect and adoption cases.
B. The adoption petition and custody complaint disposi-
tions
The trial court conducted a seven-day fact-finding hear-
ing on the adoption petition and custody complaint on
November 15-19 and 22-23, 1993, at which the foster
mother, her partner, and the great-aunt testified. The
mother, who appeared briefly on one day of the proceed-
ings, did not testify. The father did not appear. Both
the child’s parents, however, supported the great-aunt’s
custody complaint. A total of sixteen witnesses testified,
and a number of reports and exhibits were received into
evidence. On January 7, 1994, the trial court entered
an order granting the foster mother’s adoption petition,
denying the great-aunt’s custody complaint, and effec-
tively terminating the mother’s parental rights.
Concluding that there was no real possibility that either
biological parent could raise the child, the court found,
by clear and convincing evidence, when pitting the foster
mother against the natural parents, that the parents were
withholding their consent to the adoption contrary to
4a
T.J.’s best interest. In the contest for custody between
the great-aunt and the foster mother, the court found,
by a preponderance of the evidence, that it was in the
best interest of the child to grant the foster mother’s
adoption petition. The court found that both the foster
mother and the great-aunt would provide T.J. with a
warm and loving home, and that he would have a clearer
sense of his racial, cultural, and family identity if he was
raised by the great-aunt with his extended family. Never-
theless, because of the strong attachment that had formed
between the child and the foster mother, the court deter-
mined that the risk of harm to the child if he was re-
moved from his foster mother’s care outweighed those
considerations. Thus, concluded the trial judge, it was in
the child’s best interest to be adopted by the foster
mother. This consolidated appeal followed. Because the
parties contentions focused on the weight of the evidence
and the parties’ relative evidentiary burdens, we will set
forth the evidence in some detail.
II. Facts
A. Events leading to the Custody and Adoption Petitions
The child, an African-American boy, was born Sep-
tember 15, 1989, to mother, C.J., and father, D.L. He
- lived with his mother until he was nineteen months old.
The mother suffers from a chronic mental illness (schizo-
affective disorder) which, even with treatment, renders
her unable to take care of her son on any kind of long-
term basis. The child’s father has never lived with the
mother or the child, has never been involved in the
child’s life, and has no plans to assume care of the child.
The child was first brought to DHS’s attention by his
mother in November 1990, when she requested that DHS
temporarily place her son in its care because she was
experiencing mental problems and was afraid she would
not be able to provide appropriate care for him. Several
days later, DHS returned the child to her care. Over the
next five months, on about four occasions, the mother
5a
requested and received emergency care placement for the
child for periods of three to ten days because she was
overwhelmed with the task of caring for him. On some
of these occasions, the child was placed with his great-
aunt. In February 1991, the mother placed the child
in voluntary foster care at St. Anne’s for one month,
after which he was returned to her care. On April 17,
1991, the mother again indicated her inability to care
for the child and the District filed a neglect petition al-
leging, inter alia, that the mother was unable to care for
the child due to mental illness. The child, then nineteen
months old, was placed at St. Anne’s. During that period,
the great-aunt was unwilling to care for the child for an
extended period without the mother’s consent or a court
order giving her custody. The great-aunt testified that she
was seeking to avoid a repetition of the conflicts she had
encountered with the mother, including threats of violence
and vandalism to her home by the mother, which oc-
curred ten years earlier, when the great-aunt assumed
custody of A.J., the mother’s twelve-year old daughter,
who is T.J.’s sister.
The child remained at St. Anne’s for approximately
one year pending a fact-finding hearing and disposition.
During that time, he experienced behavioral, emotional,
learning, and speech problems attributed to his early
chaotic life with his mother. St. Anne’s initiated be-
havioral, language and speech therapy, which continued
some time after his placement with his foster family.
The mother visited the child frequently during his stay
at St. Anne’s, and the great-aunt visited him once, be-
cause she would not “go over [the mother’s] head” by
visiting the child. On July 8, 1992, three months after
the child was committed to foster care with the foster
mother, the great-aunt appeared in court and expressed
an interest in obtaining custody of the child. She later
filed a custody complaint on May 24, 1993.
6a
B. The Foster Care Placement
The foster mother became a foster parent through FLOC,
an organization which administers a program for foster
care. Before M.H. became T.J.’s foster mother, she,
and her companion, J.S., attended a FLOC training pro-
gram, where they were instructed that foster care is a
temporary service, with a goal of returning the child to
the birth family, first to the birth parents, if possible, and
then to birth relatives. The foster mother signed a con-
tract to that effect.
In the first few months while the child lived with his
foster mother, he continued to exhibit severe behavioral
and emotional problems—tantrums, hysterical crying,
physical aggression, sleep problems, aimless and unfo-
cused movement and motor activity, destructive play, and
inability to relate to people. Additionally, he only spoke
between ten to twenty words. He became clingy towards
his foster mother, making separation from her very dif-
ficult, and was withdrawn and non-responsive towards
others at school and home. His behavior improved after
a few months in foster care. The child became talkative,
his tantrums subsided, and he displayed a significant in-
terest in physical activity. At the home of his foster
mother, the child has his own room and access to a rec-
reation room, a den, and a backyard in which he can
play. The child attends an interracial kindergarten and
interacts well with children there. He attends church and
has friends of various races. The foster mother and her
companion, who are both white, have taken the child to
various African-American festivals and celebrations, read
books to him with African-American characters and have
posters of Martin Luther King and of black children por-
trayed in a positive way. The child is fully integrated into
his foster family, his school and church, and his multi-
cultural, multi-racial neighborhood and community. The
foster mother has a close network of friends and acquain-
tances, both married and single, through school, work,
church and her neighborhood.
7a
When the child was first placed with his foster mother,
the agency goal was reunification with his mother. The
foster mother complied with the court-ordered visitation
with his natural mother and great-aunt, but made no at-
tempts to add extra visits, lengthen visits or add makeup
visits. The FLOC social worker testified that she found
it difficult to get the foster mother and her companion to
cooperate with regard to permanency planning. The rela-
tionship between FLOC and the foster mother deteriorated
to the extent that FLOC notified the foster mother in
writing that she had breached their contract, and would
be terminated as general foster parent, retaining that
status only as to T.J. during the pendency of this case.
In July 1992, DHS referred T.J.’s case to its “Project
237.” The Project 237 social worker assigned to T.J.’s
case determined that reunification with his mother was
not feasible. On July 6, 1992, the social worker con-
tacted the foster mother’s companion, and initiated dis-
cussion as to whether the foster mother and her com-
panion would be interested in adopting the child. The
social worker also contacted the great-aunt, who indi-
cated that she was not prepared to offer the child a home
at that time. The social worker informed the great-aunt
of the upcoming court review scheduled for July 8, 1992.
The great-aunt attended the July 8, 1992 review hearing,
and the judge, without addressing the issue of the child’s
permanent placement, authorized experimental, overnight/
weekend visits for the child with his great-aunt at FLOC’s
discretion. The social worker testified that the great-aunt
did not begin visits with the child until September 11,
1992, followed by a late October visit. Both these meet-
ings took place at FLOC. After these two visits, the
2 A special corrective action project developed to address the need
for permanency planning in cases of children who had been in
foster care for more than eighteen months with an unmet case plan
goal of “reunification.” Project workers investigated whether re-
unification remained a realistic goal and, if not, developed alterna-
tive permanency recommendations.
8a
FLOC social worker indicated that she wanted to sched-
ule weekend visits, and the foster mother’s companion
indicated that she did not think that was appropriate be-
cause of the child’s reactions and regressions after visits
with his mother, and during and after the two visits with
his great-aunt at FLOC. It was at that point that the
foster mother and her companion learned that FLOC
would be recommending an immediate change of place-
ment for the child at the scheduled November 18, 1992
court review. The foster mother testified that after con-
sulting with various child mental health professionals, in-
cluding the child’s therapist, she filed the instant petition
for adoption on November 5, 1992.
At the November 18, 1992 review hearing, the judge
rejected the agency’s recommendation for an immediate
change of placement, instead ordering an independent
psychiatric assessment to evaluate the child’s psychological
bonding and the effect, if any, a move to his great-aunt’s
home would have on him. He also ordered a home study
of both the great-aunt and the foster mother by the Court’s
Social Services Division, and experimental, overnight/
weekend visits with the great-aunt at FLOC’s discretion,
but not to exceed once every two weeks.
C. The Parties’ Backgrounds
The trial court made the following findings of fact con-
cerning the relevant parties. M.H. and J.S., the foster
mother and her companion, are a white lesbian couple
who have been together for over five years. M.H., then
thirty years old, is an attorney, and J.S., then forty-nine
years old, has a masters degree in developmental and
educational psychology, and is employed as a sociologist
with the Children’s Defense Fund. They both have ex-
tensive experience with children’s issues through their
professional and volunteer work. They are a stable, emo-
tionally mature couple, who have established a comfor-
table home together in a multi-racial, multi-cultural, upper
9a
middle-class neighborhood. They are both actively in-
volved in their church’s educational and public service
activities. They have a network of friends available to
take care of the child should it become necessary, but
have no relatives on whom they could rely.
M.LD., then sixty years old, is the adoptee’s great-aunt
by marriage, who lives in a single-family home with a
fenced-in backyard in the Mount Pleasant area of the
District of Columbia. She has successfully raised eight
children of her own. She has previously provided a home
for the adoptee’s mother, and she has had custody of the
adoptee’s sister, A.J., the natural mother’s twelve-year
old daughter, since the girl was two years old.* Two of
the great-aunt’s older sons live with her, and her other
children visit with her regularly. Her home is the hub
of a large and extended African-American family where
the child has several individuals responsible for meeting
his needs. As of November 1993, the adoptee, who had
spent approximately twenty-five weekends in the great-
aunt’s home, appeared, to various observers, to be com-
fortable there and to interact warmly with the individ-
uals in the home, especially his sister.
One of the great-aunt’s sons, G.P., is a narcotics in-
vestigator with the Metropolitan Police Department who
lives with his wife and two children, ages eleven and
seven. The great-aunt takes care of G.P.’s children every
weekend, and G.P. and his wife expressed a willingness
to help with the adoptee should the need ever arise. The
great-aunt’s daughter, R.L., a management specialist at
Walter Reed Army Medical Center, is married with two
children, a three-year old and a ten-year old. The great-
aunt takes care of these children while R.L. is at work.
The trial court found that R.L. and her husband stand
ready to offer the adoptee a home should anything happen
3C.J., the natural mother of T.J., is also the natural mother of
A.J., the twelve-year old girl who has been cared for by the great-
aunt for ten years. Apparently A.J. and T.J. have different fathers.
| | ;
10a
to the great-aunt. The trial court recognized that the
great-aunt is “an extraordinary person. She is a strong,
loving, dignified, highly moral, religious person.” She
has significant experience in raising her own children, and
the trial court found that she has also raised the adoptee’s
sister with love, care and skill, and that the sister is a
well-adjusted twelve-year old who excels in school and
has a firm sense of herself.
D. The Expert Opinions as to T.J.’s Best Interest
The trial court heard testimony from two psychiatrists
called in support of the foster mother’s adoption petition,
two psychologists called in support of the great-aunt’s re-
quest for custody, and several other experts regarding the
impact on the child of a change of placement from the
foster mother’s home to the great-aunt’s home. The ex-
pert opinions were divided as to which placement would
serve the child’s best interest. The witnesses for each
side agreed that both the great-aunt and the foster mother
were able to provide safe, loving, nurturing home en-
vironments and a proper education for the child. All the
witnesses also acknowledged the advantage of placement
with the great-aunt, who was able to provide the benefits
of her extended family and its connecion to the African-
American culture and male role-models. The experts dis-
agreed, however, on the extent of the child’s attachment
to the foster mother, and the harm to the child that would
result if he were returned to his family.
1. The Experts who Supported the Great-aunt’s
Custody Complaint
The great-aunt called Dr. Ronald Wynne, a forensic
psychologist, who testified that he had examined the child
and found that a bond existed between the great-aunt and
the child, and between the child and his sister. He found
the child’s relationship to his sister to be significant to
his development, stating:
lla
I like the relationship between those two children.
She’s crazy about him and he seems to be crazy
about her. They are likely to have a relationship
that would last 60, 70, 80 years, closely bonded.
That would be wonderful.
Dr. Wynne also testified that living in the great-aunt’s
multi-generational home would strengthen the child’s self-
image and his experience of family. Dr. Wynne opined
that the transition to the great-aunt’s care would go well
because the child was able to bond with the great-aunt,
and that there would be no enduring consequences if he
were placed with her.
Dr. Beverly Davis, the administrator for the District's
Family Services Administration, also testified on the great-
aunt’s behalf. She opined that the best place for the
child was with his great-aunt, stating that the evidence
of the great-aunt’s ability to be a good parent to the
child was her ongoing success with his sister. Dr. Davis
concluded that the child is really part of his great-aunt’s
family:
African-American families have a long standing tra-
dition of having extended kin who may not be bio-
logically related, but are related in terms of the re-
lationship of that family. And that is exceedingly
important in our definition of self and has been one
of the hallmarks that I think have been important in
terms of our own survival as a people.
She agreed with Dr. Wynne on the significance of the
child being raised in his great-aunt’s home but gave no
opinion on the psychological impact the change to the
great-aunt’s household would have on him.
Dr. Frederic Phillips, a clinical psychologist who spe-
cializes in child-family psychology, was called by the
child’s guardian ad litem, strongly advocated the child’s
move to his great-aunt’s home. He testified that a child
is expected to attach to the foster parent, and, indeed,
12a
that an important quality of a good foster-care arrange-
ment is such an attachment. He testified, however, that
the existence of an attachment does not become the
“riveting reason for what should happen in the perma-
nent interest of that child.” Dr. Phillips echoed both
Drs. Wynne’s and Davis’s opinion on the advantages of
the great-aunt’s home in terms of providing the child with
a strong sense of his cultural, racial, and gender identity.
He opined that the child’s racial identity was a process
that could not be created merely with pictures of Martin
Luther King and an occasional visit with a black, male
role model. He determined that the child would be able
to move through the transition process comfortably with
appropriate social work.
2. Experts Supporting the Petition for Adoption
Dr. Floyd Galler, a child and adult psychiatrist, testi-
fied that the child had developed an attachment to his
foster mother that should not be broken. He opined that
taking the child from the foster mother would inflict per-
manent scarring, short-term sadness, a life-long risk of
depression and difficulty forming a conscience. Dr. Galler
testified that, in a trans-racial adoption, there are special
steps that adoptive parents can take to supplement the
child’s unbringing, to help the child develop a comforta-
ble sense of his or her racial identity. Dr. Galler did not
believe that the benefits of placing the child with the great-
aunt outweighed the risk of moving him.
Dr. James Eagan, a child and adult psychiatrist, testi-
fied that the most important psychological task for a child
to develop to become a healthy adult is to form an attach-
ment to a caretaker or several caretakers. Dr. Eagan be-
lieved that moving the child from his foster mother would
substantially increase the risk that he would not be able to
attach again. Dr. Eagan opined that it was in the child’s
best interest to remain in the foster mother’s home. Ms.
Betty Brooks, the child’s therapist, also testified in support
of the adoption. |
13a
Dr. Galler, Dr. Eagan, and Ms. Brooks all testified
that moving the child would be harmful in light of his
early chaotic life, his history of multiple moves and insti-
tutionalization, his early and severe behavioral and emo-
tional problems and delays, and his strong, trusting,
parent-child attachment to his foster mother. No matter
what he was told, the child would view the move to his
great-aunt’s home as an abandonment by the “parents”
he had come to trust; severing the attachment would result
in long-term serious harm to the adoptee, who was still
a vulnerable child. Finally, these experts testified that
contrary to the potential harms faced by the child if he
were moved, no “affirmative” harm would result if he
were allowed to be adopted by the foster mother.
Ill. The Trial Court’s Findings
The trial judge found that the adoptee, who had been
a seriously disturbed child, had “blossomed” into a happy,
active, normal,, although still vulnerable little boy and
that this was attributable to the foster mother’s extraor-
dinary parental abilities and her consistent nurturing and
love. The judge found that against long odds, the child
had succeeded in establishing a son/mother attachment
with his foster mother, and that bond should not be
severed. The trial court set forth the evidentiary burdens
of the great-aunt and the foster mother as follows:
To the extent these cases are a contest between [the
great-aunt and the foster mother], neither enjoys a
presumption that she should prevail. What is best
for [the child] is to be decided by a preponderance
of the evidence. And although they stand on equal
footing in terms of their evidentiary burdens [, the
great-aunt] as the choice of [the child’s] parents and
as a close family member obviously has weighty con-
siderations in her favor.
The court then addressed the evidentiary burden of the
foster mother versus the natural parents, focusing on the
l4a
ability of the natural parents to raise the child themselves,
and ruled that the foster mother “arast convince dre cour
by clear and convincing evidence that the parent[’s] op-
position to the adoption is contrary to [the child’s] best
interest.” While acknowledging that the parents’ wishes
were important considerations in deciding whether the
great-aunt should have custody, or whether the foster
mother should be allowed to adopt, the court gave no
significant weight to that factor. Indeed, the trial court
gave the parents’ wishes no more weight than it gave any
other factor. The trial court then granted the adoption
petition and denied the custody complaint of the great-
aunt, finding:
For me the pre-eminent reasons for approving [T.J.’s]
adoption, despite my confidence in his great-aunt’s
competence to provide him a warm and loving home,
are [the adoptce]’s fierce attachment to [the foster
mother], the wonders she has accomplished with him,
her extraordinary parental abilities, and the serious
risk that pulling [the adoptee] away from her will
permanently scar his development.
The court concluded that, “[iJn my judgment these con-
siderations, on balance, outweigh his parents[’] wishes
and the advantages to being raised by [the great-aunt] in
the company of his extended family.” In short the trial
court found, by a preponderance of evidence, that the
foster mother should prevail over the custodian chosen by
the parents.
IV. Standard of Review
We review a trial court’s order granting an adoption
for abuse of discretion, and determine whether the trial
court “exercised its discretion within the range of per-
missible alternatives, based on all the relevant factors
and no improper factor.” In re Baby Boy C., 630 A.2d
670, 673 (D.C. 1993), cert. denied, 115 S. Ct. 58 (1994).
In evaluating the trial court’s exercise of discretion, we
assess whether the court has applied the correct burden
|
15a
of proof. See Santosky v. Kramer, 455 U.S. 745, 757
nS (L9SL); Appear oF AUR, Fi’ ALS ie, WSL SS
(D.C. 1990). We then evaluate whether the trial court's
decision is “supported by substantial reasoning drawn
from a firm factual foundation in the record.” In re
D.LS., 494 A.2d 1316, 1323 (D.C. 1985).
V. Legal Analysis
This case presents the issue of what right, if any, a
mother‘ (parent) retains, with respect to the selection
of a custodian for her child, where: the mother’s parental
rights have not been terminated; she has not relinquished
those rights; she is not mentally incompetent to plan for
her child’s future, but is unable by reason of her mental
condition to take personal care of her child; and she has
not been adjudicated as a mother who failed, voluntarily,
to provide proper parental care. We have never had
occasion to resolve this issue, although we have acknowl-
edged its existence:
[w]hen there are competing petitions for adoption,
there is a complex, unresolved question whether the
child’s noncustodial mother, whose parental rights
have not been terminated, can dictate the result by
consenting to adopsion by one of the parties but not
the other.
In re Baby Girl D.S., 600 A.2d 71, 87 (D.C. 1991)
(emphasis added). In dicta we suggested that the mother’s
4 Our discussion applies, of course, to the right of natural parents
with respect to the placement of their child. Here, the father con-
sented to the custody request by the great-aunt, but has not other-
wise played any role in the raising or decision-making relating to
the child. The mother was the initial custodian of the child, and
it is her role in this case that is central to this controversy. Asa
result, we will generally refer to the rights of the mother, with
the understanding this is a handy reference which applies to natural
parents in general.
16a
choice could be overcome only by a very strong showing
on the prospective adopter’s part:
if . . . the party who does not receive the mother’s
consent must prove by clear and convincing evidence
that such consent is unreasonably withheld, in the
best interest of the child, when that party seeks to
adopt, this does not strike us an inappropriate burden.
Id. at 89.
We now take the step, not taken in Baby Girl D.S.,
and hold that unless it is established that the parent is
not competent to make such a decision, a child and the
natural parents share a vital interest in preventing errone-
ous termination of their natural relationship, and, there-
fore, a parent’s choice of a fit custodian for the child
must be given weighty consideration which can be over-
come only by a showing, by clear and convincing evi-
dence, that the custodial arrangement and preservation
of the parent-child relationship is clearly contrary to the
child’s best interest. See Santosky, 455 U.S. at 760.
In reaching this conclusion, we emphasize that in this
case the natural mother of the minor child, T.J., who is
unable to care for him personally by reason of her mental
condition, nevertheless has the capacity to designate a
suitable and willing custodian and has done so. The
trial court found the designated custodian, a family mem-
ber, to be a strong, loving, dignified, highly moral, re-
ligious person, with significant experience raising her own
children, and who had under her care and custody for
ten years, T.J.’s sister, a well-adjusted twelve-year old
who excelled in school. Under these circumstances, be-
fore rejecting the designated custodian’s petition and sev-
ering the child’s relation with his parent, sister, and other
relatives in the context of a consolidated adoption pro-
ceeding, the trial court must find by clear and convincing
evidence both that the custody arrangement chosen by the
mother would clearly not be in the best interest of the
child and that the parent’s consent to adoption is with-
nt ePacista dhe
sect etc Snail bn 9A ally woe dels ae
17a
held contrary to the child’s best interest.” Jn re J.S.R.,
374 A.2d 860, 864 (D.C. 1977).
The trial court erred in bifurcating two interrelated
issues, disposing of the merits of the mother’s retention
of custody of the child herself as against the merits of
the prospective adopter’s claim, applying a clear and con-
vincing standard, and then weighing the great-aunt’s peti-
tion for custody against the petition for adoption applying
the. preponderance of the evidence standard. The major
fallacy in this approach is that it gave far too little weight
to the mother’s right to choose the custodian for her
child by applying an incorrect standard of proof to that
consideration.* In short, the trial court erred in placing
the mother’s wishes on an equal footing with the other
factors it considered. The trial court effectively ruled
that the mother’s parental rights should be terminated
when it determined that as between the mother and the
prospective adopter, adoption was in the child’s best in-
terest and the mother’s consent was withheld contrary to
that interest. We have said that termination of parental
rights is an extreme remedy. In re L.L., 653 A.2d 873,
890 (D.C. 1995). Therefore, a ruling which effectively
terminates parental rights, as this one did, must be sup-
ported by clear and convincing evidence. J.R.S., supra,
374 A.2d at 864; see also In re D.R.M., 570 A.2d 796,
804-05 (D.C. 1990).
5 Adoption has the legal effect of severing all rights and duties
between the adoptee and his natural parents, their issue and col-
lateral relatives. D.C. Code § 16-812(a) (1989).
6 The availability of a suitable family member, willing to assume
legal custody of the child, is an important consideration in the
court’s decision whether to terminate the parent-child relationship.
See In re Baby Girl D.S., 600 A.2d at 83-84.
7 The trial court set forth eight considerations it weighed, in-
cluding the wishes of the parents, in applying the best interest
standard. Those considerations are set forth in a quote from the
trial court’s written opinion, infra at pp. 26-27.
18a
The Supreme Court has recognized that natural parents
have a “fundamental liberty interest in the care, custody,
and management of their children” which is protected
by the fourteenth amendment,* and gives parents the
freedom to make personal choices in matters of family
life. Santosky, 455 U.S. at 753.° Furthermore, natural
parents do not lose this constitutionally protected interest
“simply because they have not been model parents or
have lost temporary custody of their child[ren] ... .
Even when blood relationships are strained, parents re-
tain a vital interest in preventing the irretrievable destruc-
tion of their family life.” Jd. We have held that state
intervention in the parent/child relationship is subject to
constitutional oversight. In re Baby Boy C., 630 A.2d
at 673, and we have recognized that absent termination
of parental rights or some other finding that the parents
should no longer be permitted to influence the child’s
future, the parents’ rights necessarily include the right to
consent, or withhold consent, to the child’s adoption.
Baby Girl D.S., 600 A.2d at 86 n.21; D.C. Code § 16-
304 (1989) (consent to adoption); D.C. Code § 16-
2361(b) (negating notice requirement of adoption statute
once parental rights have been terminated). This right to
consent must be guarded just as zealously as the Con-
stitution guards the right of a natural parent to the cus-
8 Constitutional protections, applicable to the states through the
fourteenth amendment, although not directly applicable to the
District of Columbia, extend to the District through the due process
clause of the fifth amendment. Orange v. Bd. of Elections and
Ethics, 629 A.2d 575, 579 n.5 (D.C. 1998), citing Bolling v. Sharpe,
847 U.S. 497, 499 (1954).
® See also Quilloin v. Walcott, 484 U.S. 246, 255 (1978) ; Smith v.
Organization of Foster Families, 481 U.S. 816, 845 (1977) ; Moore v.
East Cleveland Bd. of Educ., 481 U.S. 494, 499 (1977); Cleveland
Bd. of Education v. LeFleur, 414 U.S. 682, 680-40 (1974); Stanley
v. Illinois, 405 U.S. 645, 651-52 (1972); Pierce v. Massachusetts,
821 U.S. 158, 166 (1944) ; Pierce v. Society of Sisters, 268 U.S. 510,
584-85 (1925) ; Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
19a
tody and companionship of his or her child. See D.S.
v. F.A.H., 684 S.W.2d 320, 323 (Ky. 1985) (court
should consider any less drastic measure other than ter-
mination of parental right, to accomplish the child’s best
interest); Davis v. Jurney, 145 A.2d 846, 849 (D.C.
1958) (even though all considerations, including parents’
rights, must yield to the child’s best interest, application
of that broad principle does not demand that the right
of a parent should be ignored). But see In re Violetta
B., 568 N.E.2d 1345, 1352 (Ill. App. 1 Dist. 1991)
(best interest of child is paramount even to parents’ con-
stitutional rights).
We find substantial further support for the conclusions
we reach in Freeman v. Chaplic, 446 N.E.2d 1369
(Mass. 1983), which involved a custody conflict between
the maternal step-grandmother, Freeman, and the paternal
grand-parents, the Chaplics, for custody of a thirteen-year
old girl, Lynn-Marie. The birth mother had consented
to the Chaplics’ custody petition and refused to consent
to Freeman’s petition. Focusing its inquiry on the
mother’s ability to care for the child, and the provisions
that she made for those times when she was unable to
do so, the court held that “[a]s a general matter, grant-
ing custody to a party opposed by the parents where
neither the parents nor the parents’ nominee is unfit or
unsuitable . . . would raise serious constitutional diffi-
culties.” Freeman, 446 N.E.2d at 1375. The thirteen-
year old child who was the subject of this custody conflict
had been living with Freeman, with whom she had a
close, loving relationship, in a custody arrangement pre-
cipitated by the mother’s hospitalization because of a
10 We do not speak here of situations where a parent withholds
consent to an adoption, but has not devised any alternative plans
for the permanent placement of the child. Nor are we addressing
the standard to be applied in those circumstances where the parent
has been found in a judicial proceeding to have abused the child. We
are dealing only with the custody wishes of a parent who, through
no fault of her own, is unable to care properly for her child.
20a
nervous breakdown. After the Chaplics filed a petition
for guardianship, to which both natural parents consented,
they were appointed guardians with custody. The child
adjusted well in the Chaplics’ household, developing a
warm relationship with her two siblings who were also
in the Chaplics’ custody.
The trial court, over the natural parents’ objection,
revoked the decree appointing the Chaplics guardians
with custody, and appointed Freeman as custodian.”
Among the trial court’s findings were the following: (1)
both the Chaplics and Freeman were fully capable of
caring for Lynn-Marie; (2) the birth mother possessed
the capacity to assent to the appointment of the Chap-
lics as guardians with custody of the child; (3) assent
by the parents should be given little weight because the
father has had little contact with the child, and the mother
was suffering from emotional problems; (4) the parents’
custody choice was designed to maintain the closest pos-
sible ties between the child and her parents, siblings, and
paternal grandparents, the Chaplics; and (5) that the
appointment of Freeman would serve the child’s best
interest. Freeman, 446 N.E.2d at 1372. On the basis
of the last finding, the trial court vacated the appoint-
ment of the Chaplics and awarded Freeman custody.
The Supreme Judicial Court of Massachusetts reversed,
holding that where the trial court found the parents fit
and competent to make decisions about the child’s fu-
ture, and their choice of custodian was also suitable,
the judge is bound to honor the parents’ wishes, to the
extent permitted by statute, on the choice of a custodian.
Furthermore, “ties of affection which exist between a
child and a person who has had custody of the child
must yield to the desires of the parents to raise the child
in a fit environment.” Id. at 1376 (emphasis added).
11 During the pendency of this action, the natural mother was
adopted by the Chaplics and was living with them along with her
other two children.
2la
A Florida court has also recognized that the mother’s
custody choice must be given weighty consideration. In
Berhow v. Crow, 423 So. 2d 371 (Fla. 1982), a teen-
age birth mother gave custody of her daughter to the
Berhow family, who then became licensed foster parents
in California where they were registered as the child’s
parents with the consent of the natural mother. Shortly
thereafter, the natural mother died, and the Berhows pe-
titioned to adopt the child with the consent of the birth
father, in a California court. During the pendency of
that proceeding, however, the maternal grandparents, un-
der false pretense, removed the child from the Berhow
home, took her to Florida, and adopted her there, with-
out notifying the Berhows. Upon learning of the adop-
tion, the Berhows moved to vacate the adoption order,
but the trial court denied the motion on the ground that
the Berhows lacked standing to challenge the adoption.
The court of appeals reversed, holding that the Berhows,
as the birth mother’s choice of custodian, had “demon-
strated a due process liberty interest in maintaining their
close family relationship with [the child.]” Berhow, 423
So. 2d at 371. The Berhows, therefore, had standing to
challenge the adoption and should have received notice
of the adoption proceedings. Jd. at 373. The court found
dispositive the fact that.the child had been placed with
the Berhows for more than temporary care by the natural
mother. Id.
Finally, a New York court granted an adoption to the
mother’s choice of custodian because the authorized
agency providing foster care also supported the adoption.
In re Guardianship of the D. Children, 576 N.Y.S.2d 136
(A.D. 1 Dept. 1991). The natural mother had volun-
tarily placed both her infant sons in foster care with a
Mrs. Harding. Shortly thereafter, the natural mother died,
the grandmother’s custody petition was denied, and an
appeal was taken. The appellate court held that the
grandmother did not have precedence for custody over
22a
the adoptive parents selected by the authorized agency.”
Id.; but see Worley v. Jackson, 595 So. 2d 853 (Miss.
1992) (the parental choice must yield to the judge’s de-
termination of what is in the children’s best interest, un-
less that determination is manifestly wrong); In re Steph-
anie M., 867 P.2d 706 (Cal. 1994), cert. denied, 115
S. Ct. 277 (1994) (parent’s choice of custodian not
within the child’s best interest) .”
There was substantial evidence in this case that the
mother was unable to care for the adoptee herself, and
the trial court so found by clear and convincing evidence
—a finding which we do not fault. There was no evi-
dence, however, that the mother was incapable of mak-
ing decisions about her son’s future. To the contrary,
there is considerable undisputed evidence in this record
that the mother always ensured that someone would pro-
vide for the child’s needs when she believed she was un-
12 The appellate court did not indicate how much weight, if any,
was given to the mother’s choice of custodian, although this may be
because the mother’s choice coincided with that of the authorized
agency. But, even assuming the court did not rule on the basis of
the mother’s choice, that case nonetheless provides support for our
holding in this case, because the court ruled on the basis of the
choice made by the agency authorized to permanently place the
children. In this case, both FLOC and DHS also favored the
great-aunt as the custodian of the child.
13 Both of these cases are factually distinguishable from this
case: In In re Stephanie M., the parents had physically abused the
child and the court found that their choice of custodians, the mater-
nal grandmother or, in the alternative, the aunt, would be unable to
protect the child from further physical abuse by the parents. In
Worley v. Jackson, the maternal grandparents who were the
mother’s choice sought temporary custody on grounds that they
had in loco parentis status. The court found that no in loco parentis
status existed, and awarded the paternal grandparents custody
because, among other considerations, they sought to have perma-
nent, as opposed to temporary custody, which was in the best
interest of the children. Furthermore, the court found that such a
custodial arrangement in no way impaired the mother’s future
parental rights.
23a
able to do so herself. For example, in the neglect pro-
ceedings Judge Mize specifically found that:
[t]he evidence demonstrates that actions were taken
with forethought by the mother to assure that [the
adoptee] was properly taken care of by another.”
The mother selected a suitable custodian, the child’s
great-aunt. The trial court described the great-aunt as an
“extraordinary . . . strong, loving, dignified, highly moral,
religious person” who has successfully raised eight of her
own children. The trial court also found that the great-
aunt has been raising the child’s older sister for ten
years, “with love, care and skill, [and the sister] is a well-
adjusted 12 year-old, who excels in school and has a firm
sense of herself.” Finally, the great-aunt has a strong
family-support network who “stand ready” to offer the
child a home should anything happen to her.
It is significant, in our view, that there is no evidence
that the mother made any decision harmful to the child,
or that the trial court found that the great-aunt was in
any way unfit or. unsuitable to be his custodian. Grant-
ing the great-aunt custody of the child would strengthen
the natural bonds of the family, permit the child to be
raised with his sister, and preserve the relationship with
his mother and other members of his extended family.
On the other hand, granting the foster mother’s adoption
petition ignores the mother’s constitutional rights to par-
ticipate in decision-making relating to the rearing of her
child without a formal finding that she has forfeited her
right to do so. Granting the foster mother’s adoption
petition would also sever the child’s connection with his
blood relatives. In holding that the trial court here failed
to properly take into account the mother’s rightful role
14 Thus, the court adjudicated T.J. neglected under D.C. Code
§ 16-2301(9) (C), due to the mother’s mental illness and not pur-
suant to § 16-2301(9)(B) because, “T.J. was not without proper
care or control, subsistence, education . . . or other emotional health.”
See supra, note 1.
‘iia 4
24a
in her son’s future, we endorse the observation of the
Supreme Court in Moore v. East Cleveland, 431 US.
494, 505 (1977), which the Supreme Judicial Court of
Massachusetts in Freeman also found weighty:
Out of choice, necessity, or a sense of family respon-
sibility, it has been common for close relatives to
draw together and participate in the duties and the
satisfaction of a common home. Decisions concern-
ing child rearing, which . . . have [been] recognized
as entitled to constitutional protection, long have
been shared with grandparents or other relatives who
occupy the same household—indeed who may take
on major responsibility for rearing of the children.
Especially in times of adversity, such as the death of
a spouse or economic need, the broader family has
tended to come together for mutual sustenance and
to maintain or rebuild a secure home life.
Freeman, 446 N.E.2d at 1375 n.11.
Unless a child’s parents have in some manner forfeited
the right to direct the upbringing of their children, the
parents have the right to determine what is in their child’s
best interest. See Appeal of H.R., 581 A.2d at 1177
(Ferren, J.) (“It would seem inherent in the very con-
cept of a fit parent that such a parent would be at least
as responsive as the trial court, very probably more so,
to the best interest of the child.”), citing In re Guardian-
ship of Smith, 265 P.2d 888, 891 (Cal. 1954) (en banc)
(Traynor, J., concurring). That right includes the right
to raise the child if physically or mentally able to do so,
or, if not, the right to determine who should raise the
child.” Id.
15 Thus, where the parent/child relationship is intact, a state may
only intrude in that relationship in very limited circumstances in the
public interest, or for the protection of the child. Normally, such
intervention does not permanently sever the parent/child rela-
tionship. See, e.g., In re A.C., 578 A.2d 1235, 1246-47 (D.C. 1990) ;
Prince v. Massachusetts, 321 U.S. 158, 167 (1944) (citing People v.
a ee ee
sg
25a
Taking all of these considerations into account, we
conclude, on the facts of this case, that the mother’s
choice of a suitable custodian and the household in which
her son should be reared should have been accorded far
greater weight by the trial court, and it was error for
the court not to give effect to the mother’s choice of cus-
todian for her child absent a showing, by clear and con-
vincing evidence, that the choice would be clearly con-
trary to the child’s best interest. See Freeman, 446 N.E.
2d 1369; Berhow, 423 So. 2d 371; In re Guardianship
of the D. Children, 576 N.Y.S.2d 137; see also, D.S. v.
F.A.H., 684 S.W.2d at 322 (where mother’s inability
to care for her child is neither self-imposed nor deliberate,
placement with a family member must be considered
prior to termination of parental rights).
We agree with the foster mother’s observation that the
child’s best interest should be the determining factor for
the trial court. The natural mother’s views, however, at
least under the circumstances presented here, must be
taken into consideration in determining what is in the
child’s best interest. See Appeal of H.R., 581 A.2d at
1177. Moreover, in this case the guardian ad litem, i.e.,
the child’s representative, DHS, and FLOC, the agency
with legal custody of the child, all support the mother’s
choice of custodian. See In re Guardianship of the D. Chil-
dren, 576 N.Y.S.2d at 137 (blood relative has no prece-
dence for custody over adoptive parents selected by the
authorized agency).
VI. Conclusion
Having held, on the facts of this case, that the parents’
choice of custodian should have been accorded far greater
weight, we turn now to a discussion of the applicable
legal standard, mindful that the determination of what is
in the child’s best interest cannot be accomplished by
Pierson, 68 N.E. 248 (N.Y. 1903) (the right to practice one’s re-
ligion does not include liberty to expose the child to communicable
diseases, ill health or death).
26a
imposing formulas, doctrines, presumptions, or a rigid
hierarchy of placement alternatives. See In re D.G., 583
A.2d 160, 165 (D.C. 1990); In re D.I.S., 494 A.2d at
1323; Bazemore v. Davis, 394 A.2d 1377, 1383 (D.C.
1978) (en banc). Before doing so, we note preliminarily
that, contrary to the foster mother’s contention, we do
not understand the appellants’ argument to be that the
trial court should have elevated some other right or in-
terest above the child’s best interest. The issue is whether
the trial court applied the correct evidentiary standard,
and whether the trial court required the parties to bear
the appropriate evidentiary burden, in weighing the fac-
tors that guide the best interest analysis.
In deciding between the competing petition of the fos-
ter mother and the great-aunt the court applied a pre-
ponderance of the evidence standard to determine the
child’s best interest, stating:
The best interest standard calls upon the court to
look at [the child’s] life from many perspectives—
[the child’s] bonding or attachment with those who
wish to bring him up; his parents wishes; the trauma
he would face if moved from the [foster mother to
the great-aunt’s] care; how that move would affect
his growth as a person; the difficulties and preju-
dices [the child] would be faced with as a result of
a transracial lesbian adoption; the advantages and
support offered by an extended family; the respective
abilities of each side to give [the child] a real sense
of his cultural, ethnic and biological heritage; as
well as the potential of each to share their love and
to give [the child] a real sense of himself.
For the court, the “pre-eminent reasons” for granting the
foster mother’s adoption petition, despite being confi-
dent that the great-aunt was a fit custodian, was the
adoptee’s attachment to the foster mother, the progress
he made while in her care, and the risk of a permanent
emotional scar if he were removed from her. Finally,
27a
the court ruled that by a preponderance of the evidence,
on balance, these considerations outweighed his parents’
wishes and the advantages of being raised by his great-
aunt in the company of his extended family.
We hold that the court erred in applying the preponder-
ance of the evidence standard when weighing the foster
mother’s interest against the mother’s right to preserve the
relationship of parent and child and to exercise her choice
of the great-aunt as custodian. If the mother had not
sought to preserve the family relationship and had not
come before the court supporting a suitable family mem-
ber as custodian for the child, or if parental rights had
been terminated, then the trial court would be correct in
employing the preponderance standard in resolving the
competing petitions of the foster mother and the great-
aunt. In re D.I.S., 494 A.2d at 1325-26. However, this
is not simply a case of competing petitions for adoption
between unrelated parties. It is a case between a natural
mother, who seeks to preserve the relationship of parent
to child, and who designated a suitable custodian to care
for her child, and an unrelated party who seeks to adopt
him.
Where the parent(s) have unequivocally exercised their _
right to designate a custodian, i.e., made their own deter-
mination of what is in the child’s best interest, the court
can “terminate” the parent(s)’ right to choose only if the
court finds by clear and convincing evidence that the
placement selected by the parent is clearly not in the
child’s best interest, and the consent to adoption has been
withheld by the parent contrary to the child’s best interest.
The non-parent seeking adoption must carry that burden
of proof.”*
16 The application of the preponderance of the evidence standard
in D.LS., supra, 494 A.2d at 1316, a case where there were com-
peting petitions for adoption by two non-parents, is inapposite
under the facts of this case. In D.I.S., the court distinguished the
case from J.S.R., supra, 374 A.2d at 864 where we applied the clear
and convincing standard, observing that the issue in J.S.R. was
28a
Applying these considerations to the facts presented
here, we conclude that the foster mother failed to show
by clear and convincing evidence “ that the mother’s cus-
tody choice was clearly not in the adoptee’s best interest.
There is overwhelming record support for the court’s
finding that the great-aunt would be a fit custodian. More-
over, custody with the great-aunt would ensure that T.J.
would be in the company of his cousins and sister. With
respect to those relationships the trial court found that
T.J. enjoys the company of his cousins and is very at-
tached to his sister. The mental health experts who testi-
fied were divided on the issue of the extent and degree
of harmful consequence to the child if there was a change
of placement.
whether a natural parent, who has a constitutionally protected
interest in raising his own child, is withholding consent to the
adoption contrary to the child’s best interest. In D.J.S., the mother
was deceased and the father consented to one of the competing
petitions. Thus, the father did not seek to preserve, as the mother
does in this case, the parent-child relationship; he was willing to
have that relationship terminated in favor of one of the competing
non-parents. The circumstances are quite different where a men-
tally or physically disabled parent is seeking to preserve the
parent-child and family relationship through the support of a
custodial plan for his or her child’s care as set forth in a petition
for custody which is being considered along with a petition for
adoption filed by an unrelated person. For the reasons previously
stated, the higher clear and convincing standard must apply because
of the parent’s protected interest in determining the unbringing of
his or her child, and because the issues concern the termination of
those rights.
17 A preponderance of the evidence is “proof which leads the
[fact finder] to find that the existence of the contested fact is more
plausible than its non-existence.” In re D.I.S., 494 A.2d at 1326
(quoting MCCORMICK ON EVIDENCE § 339 (E. Clearly 3d ed. 1984) ).
The standard of clear and convincing proof requires evidence that
will “produce in the mind of the trier of fact a firm belief or
conviction as to the facts sought to be established.” District of
Columbia v. Hudson, 404 A.2d 175, 179 n.7 (D.C. 1979) (en banc)
(citation omitted).
a a
ee it el it ME ee ok ih -
29a
Placing particular emphasis on the adoptee’s attach-
ment to the foster mother,”* the trial court concluded that
the evidence “on balance” favored granting the foster
mother’s adoption petition. If the mother had expressed
no preference, that ruling, on this record, may well have
been within the acceptable range of the court’s exercise
of discretion. See In re Baby Girl D.S., 600 A.2d at 82.
The trial court, however, did not find, and we think from
this record, could not find, by clear and convincing evi-
dence, that placement of the child with the great-aunt
would be clearly contrary to the child’s best interest.”
Indeed, the trial court found as fact that the great-aunt
was a highly moral and dignified person, with significant
experience raising her own children, and who was raising
T.J.’s sister, a well-adjusted twelve-year old.
For all of these reasons we conclude that the trial court
erred in rejecting the custodial arrangement selected by
the mother. In so concluding, we echo the sentiment ex-
pressed in T.J.’s brief:
T.J. has a family . . . that is supportive, that loves
him and is willing and able to care for him. In this
country, it still means something to have a family
with which one shares biological and cultural iden-
tity where a child can grow up.
18 We do not minimize the significance of this consideration. As
we emphasized in In re L.L., 653 A.2d at 684-86, the governing
statute requires that the trial court give weight to the child’s need
for continuity of care, the emotional needs of the child, and the
child’s attachment to the foster mother. See D.C. Code § 16-2353 (b)
(1989). The same statute, however, requires the trial court to
consider the child’s interaction with others including parents and
siblings. As noted in the text the great-aunt has raised T.J.’s sister
for ten years and, as the trial court found, T.J. is “very attached”
to the sister.
19 The trial judge’s opinion evidences the strength of the com-
peting considerations in his mind and his difficulty of decision.
As we read his opinion, he invoked the preponderance standard, but
would have himself ruled differently under the clear and convincing
test we today hold applicable.
30a
See also In re DI.S., 494 A.2d at 1324 (under similar
circumstances, the trial court granted grandmother’s adop-
tion petition “because of the extensive support group of
relatives available to assist the grandmother”).
VII. Our Resolution of This Appeal
The judgment granting the foster mother’s adoption
petition is therefore reversed, and the case remanded to |
the trial court to vacate the orders granting adoption and
denying custody, and to enter an order granting custody
to the child’s great-aunt.” See In re L.L., supra, 653 A.2d
at 889-90.
Reversed and remanded.
20 This conclusion is reached with the recognition that an initial
order for child custody is always open to modification by the court
where warranted by a change of circumstances affecting the child’s
best interest.
——————————o—VVv_eererere
ade Br rN A AU ee Oe OT bn She OD ee
Meth Setat atit his RIEL SED: Sit ROL AB AP SAD CARA LDE LTE I A AN
3la
[Filed Jan. 10, 1994]
SUPERIOR COURT
OF THE DISTRICT OF COLUMBIA
FAMILY DIVISION
No. DR-1366-93C
Mary DavIs
Vv.
COLLEEN JONES
N-0268-91
IN THE MATTER OF TONY LEE JONES
A-302-92
IN THE MATTER OF THE PETITION OF MARY HYNES
INTRODUCTION
These are consolidated neglect, custody, and adoption
cases all involving the same four year old African-
American boy, Tony Jones. He entered the neglect sys-
tem in April 1991 when his mother Colleen Jones, over-
whelmed by her schizophrenia, no longer was able to
care for him. (His father, Damen Lowe, has not been
involved in his upbringing). After about a year’s stay
at St. Ann’s Infant Home, Tony, in March 1992, was
placed in foster care with Mary Hynes and her partner
Janet Simons. There he stayed, prospered, and still stays.
32a
When DHS was rumored to be considering moving
Tony from foster care to live with his great-aunt, Mary
Davis, a kind and loving 60 year old woman who has
raised eight of her own children and is raising Tony’s
12 year old half-sister Angela, Mary Hynes decided to
file for adoption. These consolidated cases, then, pit
Tony’s extended African-American family as well as the
District of Columbia, all of whom favor the custody
petition of Mary Davis, against the women who have
cared for Tony the last year and a half, and more par-
ticularly against Mary Hynes, a white lesbian who is
seeking to adopt him.
The Court, of course, must reach a decision that, to
its lights is “best” for Tony. I am painfully aware of the
admonition one of the witnesses, a psychiatrist, Dr. James
Egan, that this will be the most important decision of
Tony’s life. The decision is harder still knowing it will
bitterly disappoint those who greatly love Tony, and who
would raise him, had they the opportunity, with care and
love. To those I disappoint I can only offer my deeply-
felt regrets—I know they do not deserve this decision—
and urge them to shower Tony with all the love my
decision allows and their hearts hold. I have not so much
ruled against them as for Mary Hynes. I think it best
for Tony to grant the adoption petition.
Findings of Fact
Tony Jones was born on September 15, 1989 to Col-
leen Jones, a woman who then as now suffers from a
serious schizo-affective disorder which renders it unlikely
that she will ever be able to care for him, and to Damen
Lowe, his father, who has never been a factor in his life
or evinced any interest in raising him.
In infancy, Tony’s mother valiantly struggled to care
for him, but her schizophrenia left her prone to episodes
of impaired judgment, depression, violence, and despair.
From time to time, when feeling overwhelmed by her
Spied net Rotates
33a :
responsibility for Tony, Colleen Jones would seek help
from the Department of Human Services. (DHS was al-
ready familiar with Ms. Jones’ problems having years
before placed Tony’s older half-sister Angela with Mary
Davis, their maternal great-aunt.) These informal inter-
ventions usually resulted in DHS temporarily placing
Tony with Mary Davis. Typically though, in a matter
of days, Ms. Jones would demand his return, demands
sometimes accompanied by outbursts of violence directed
at Mary Davis or her home. These actions were suffi-
ciently bothersome that when a neglect petition was fi-
nally filed, Ms. Davis declined to take Tony, not having
- received Colleen Jones’ assurances that she willingly con-
sented to the placement.
Tony’s hectic infancy had its impact. He was ex-
tremely physically aggressive, speech delayed to the point
of being near mute, far behind in learning skills, and sub-
ject to tantrums at the slightest provocation. Neverthe-
less, Tony’s mother had given him sufficient care and
affection that despite his many impairments, Tony still
managed to retain a-latent ability that in time would en-
able him to form a meaningful attachment.
On April 17, 1991, the various informal means of as-
sistance having failed, Tony’s case was petitioned. He
was placed in shelter care at St. Ann’s no relatives hav-
ing stepped forward.’
During his year at St. Ann’s, Tony made little progress.
His behavioral and learning problems continued with
scant improvement despite speech, language, and play
therapy arranged through Howard University and the Na-
tional Children’s Center. Visits at St. Ann’s from Tony’s
extended family were minimal and on March 26, 1992
Tony was placed in foster care with Mary Hynes and her
partner Janet Simons.
1Qn January 23, 1992, after trial, Judge Gregory Mize found
Tony neglected pursuant to D.C. Code 16-2801 (9) (c) due to Ms.
Jones’ mental illness. He was committed to DHS March 81, 1992.
34a
Ms. Hynes, who is 30 years old, and Ms. Simons, 49
years old, met seven and one-half years ago through
their work at the Children’s Defense Fund. They are
both professionalk—Ms. Hynes, a lawyer, Ms, Simons
a sociologist—and through their work and volunteer ac-
tivities have dealt extensively with childrens’ issues. They
have lived together for the past five and one-half years,
currently in a comfortable single family home in Takoma
Park, Maryland. The neighborhood is multi-racial, multi-
cultural and middle class. Tony has his own room as
well as a recreation room, den, and yard in which to play.
In the year and a half Ms. Hynes and Ms. Simons
have cared for Tony he has blossomed into a talkative,
happy, smiling little boy. For this his foster parents and
especially Mary Hynes deserve great credit. No one dis-
putes that they have done a remarkable job. From a
boy whose vocabulary barely was a few words, he has
turned into an affectionate chatterbox. His grasp of
knowledge is about where it should be for a four year
old and he no longer flies off the handle. Tony runs,
bikes, swims, plays soccer, and generally does what little
boys do. He attends an interracial kindergarten and
church and has lots of friends of assorted races and
colors. In short, Tony is a surprisingly happy, active,
normal (although still at risk) little boy, fully integrated
into his foster family, neighborhood, school and com-
munity. Bette Brooks, a clinical social worker who
started working with Tony while he was at St. Ann’s and
has continued with him in foster care, has seen him
progress from an aggressive, disruptive, troubled child,
to a little boy who has a sense of trust and security in
the world. She attributes that sense of comfort to the con-
sistent nurturing and love Ms. Hynes gave Tony. They
are an “especially . . . good match.” (Tr. 475)
Mary Davis, Tony’s great-aunt, is also an extraordinary
person. She is a strong, loving, dignified, highly moral,
religious person. Although without much schooling her-
aa ete se
35a
self Ms. Davis has a keen sense of the importance of edu-
cation. All eight of her children completed high school,
and have been raised by her with love, discipline, nurtur-
ing, and a strong sense of traditional values.
In addition to successfully raising her own eight chil-
dren, Ms. Davis has also been raising Tony’s half-sister,
Angela, for the past ten years. Again, she has done this
with love, care and skill. Angela is a well-adjusted 12
year old who excels in school and has a firm sense of
herself.
Ms. Davis lives in a single family home with a fenced
in backyard in the Mount Pleasant area of the District
of Columbia. Her household is a hub of activity for her
children and grandchildren. Two of her adult sons live
at home as does Tony’s half-sister Angela. Ms. Davis’
other children are welcome whenever they wish to stop
by. Her daughter, Robin Lyons, a management specialist
at Walter Reed, frequently drops off her two children,
three year old Kelvin and ten year old Keisa, on her way
to work. Tony knows his cousins and enjoys their com-
pany. He is very attached to his half-sister Angela who
he regularly sees on his every other weekend visits with
Mary Davis. Robin Lyons is firmly committed to assist
her mother, Mary Davis, with whatever may be needed
to raise Tony. Ms. Lyons and her husband (who plans
to retire soon from the military) have recently moved to
a comfortable, large house in Prince Georges County,
Maryland. They stand ready to offer Tony a home should
anything happen to Mary Davis.
Analysis
Legal Framework
In resolving these consolidated cases the Court must
look to what is “best” for Tony. His interests must be
the basis for decision whether we consider the neglect
case, the custody case or the adoption case. See e.g.,
Petition of D.I.S., 494 A.2d 1316 (D.C. App. 1985).
36a
To the extent these cases are a contest between Ms. Davis
and Ms. Hynes neither enjoys a presumption that she
should prevail. What is best for Tony is to be decided
by a preponderance of the evidence. And although they
stand on an equal footing in terms of their evidentiary
burdens Mary Davis as the choice of Tony’s parents and
as a close family member obviously has weighty consider-
ations in her favor. To the extent the cases are a contest
between Tony’s mother and father, Colleen Jones and
Damen Lowe, against Mary Hynes, Ms. Hynes’ evidentiary
burden is higher. She must convince the court by clear
and convincing evidence that the parents opposition to the
adoption is contrary to Tony’s best interests. Petition of
D.1LS., 494 A.2d 1316, 1326 (D.C. App. 1985). How-
ever given Ms. Jones’ bleak prospects of recovery from
her schizoaffective disorder and Mr. Lowe’s lack of in-
terest in assuming parental responsibilities, there is no
real possibility of either biological parent raising Tony.
Their wishes, as noted earlier, are nonetheless important
considerations in deciding whether Mary Davis should
have custody or Mary Hynes should be allowed to adopt.
The best interests standard calls upon the Court to
look at Tony’s life from many perspectives—Tony’s bond-
ing or attachment with those who wish to bring him up;
his parents wishes; the trauma he would face if moved
from Mary Hynes to Mary Davis’ care; how that move
would affect his growth as a person; the difficulties and
prejudices Tony would be faced with as a result of a
transracial lesbian adoption; the advantages and support
offered by an extended family; the respective abilities of
each side to give Tony a real sense of his cultural, ethnic
and biological heritage; as well as the potential of each
to share their love and to give Tony a real sense of him-
self. See generally Petition of D.I.S., supra; D.C. Code
Section 16-2353(b).
For me the pre-eminent reasons for approving Tony’s
adoption, despite my confidence in his great-aunt’s com-
37a
petence to provide him a warm and loving home, are
Tony’s fierce attachment to Mary Hynes, the wonders she
has accomplished with him, her extraordinary parental
abilities, and the serious risk that pulling Tony away
from her will permanently scar his development. In my
judgment these considerations, on balance, outweigh his
parents’ wishes and the advantages to being raised by
Mary Davis in the company of his extended family.
I have already summarized the great strides, beyond
any dispute, that Tony has made in Mary Hynes’ care.
His attachment to her is intense and unique, as is hers
to him. She has been a superb mother for him and I
have no doubt that Tony will receive that same level of
exceptional care in the future.
Moreover, Ms. Hynes is acutely aware of the racial
and gender child development issues that will dog Tony’s
life with her, and is prepared to help him meet those
difficulties. She is consciously and actively providing him
an ethnically and culturally diverse upbringing. Tony’s
friends and those of Ms. Hynes and Ms. Simons—at
home, in school, in church, and at play and leisure—
cover a range of nationalities and races. I am confident
that Mary Hynes will offer Tony a richly diverse life,
that he will grow up with a firm sense of himself and of
his worth, and with a clear understanding of his family,
gender, racial, and cultural identity. Ms. Hynes has ex-
presed her willingness to let Tony regularly visit with
his extended family. She is also open to Tony’s sister
and cousins visiting with him. I believe Ms. Hynes is
serious in these commitments, realizes that they are in
Tony’s best interest, that they will facilitate Tony’s
knowledge of and love for his first family, and with that
of his racial and cultural identity.
In Dr. Egan’s view, which I find persuasive, as long
as Mary Hynes has a genuine regard, for and apprecia-
tion of Tony as an African-American he will achieve
a sense of himself as a black American. While other
38a
witnesses differed with Dr. Egan as to how grew. a blow
it would be for Tony to grow up apart from his extended
family, I am persuaded by Dr. Egan’s review of the liter-
ature that the experience with trans-racial adoption has
been quite favorable, and that critical to the success of
an adoption is the quality of the adoption, not the race
of the parties.
Much the same can be said of gender issues. Again
what is important is that the child grow up in a home
that respects and values who he is. Mary Hynes does
just that. She loves Tony for himself. She is not push-
ing some political or ideological agenda of child rearing.”
To be sure Tony would have a clearer sense of his
racial, cultural, and family identity if he were brought
up by Mary Davis in the same household as his sister,
and with the constant informal comings and goings of
his cousins, aunts and uncles. I do not underestimate the
importance to Tony of fully participating in that ex-
perience. Regular visits arranged by and through Mary
Hynes can never adequately substitute for living every
day with his extended family.
Nevertheless, in my judgment, that loss of daily con-
tact with Tony’s immediate family is outweighed by the
real and substantial risk of harm should he be removed
from Mary Hynes’ care. Again, the experts differed re-
garding Tony’s adaptability at this point in his life. To
simplify somewhat, those favoring Mary Davis’ custody
petition essentially took the view that Tony adapted be-
fore so he can adapt again. Those favoring Mary Hynes’
adoption petition pointed to the importance of his attach-
ments and the limits of his resiliency. While no one has
a crystal ball I found Dr. James Egan’s views and analysis
most informative and persuasive.
2 Perhaps unsurprisingly children of lesbian parents tend to
grow up more tolerant than other children. Studies show that gay
and lesbian couples do not produce, deviant, disturbed or impaired
children.
39a
Essentially, for a child’s successful development, race,
gender, extended family, and all else is subservient to the
fundamental importance of forming an attachment very
early on to a person who is viewed as fundamentally
different from all others and irreplaceable. When that
fails to happen, when that attachment is not fixed, or if
fixed, is disrupted, the child has truly serious difficulties
developing into a caring, loving, human being.
Whether severing a particular attachment will merely
result in yet another scar among many, or instead de-
cisively and devastatingly truncate the child’s develop-
ment, is beyond easy prediction. It seems apparent, how-
ever, that the fragility and tentativeness of early attach-
ments puts a child at risk of more serious consequences
with each subsequent interruption. Dr. Egan used the
analogy of adhesive tape to explain the concept. Tape
can be pulled off just so many times before it loses all
adhesive capacity.
Tony has not had an easy four years. That he is doing
as well as he is, is, in Dr. Egan’s words “a triumph for
him and for those who have cared for him, but it’s a
fragile triumph.” (Tr. Nov. 22 at 28). Moving now,
even to a home as caring as Mary Davis’, would be a
disaster because of the very real risk that in destroying
his trusting attachment to Mary Hynes, Tony will be un-
able to trust anyone.
That to me is the crux of these cases. Against long
odds Tony has succeeded in establishing a son/mother
attachment with Mary Hynes. That bond should not be
severed.
For these reasons I find by clear and convincing evi-
dence that Colleen Jones and Damen Lowe’s consent to
adoption has been withheld contrary to the best interests
of Tony Jones and that by a preponderance of the evi-
dence it is in the best interest of Tony Jones to grant
Mary Hynes’ adoption petition rather than Mary Davis’
custody petition.
40a
Accordingly, it is this 7th day of January 1994,
ORDERED that the adoption petition of Mary Hynes
is GRANTED;
And it is FURTHER ORDERED, that the custody
petition of Mary Davis is DENIED;
And it is FURTHER ORDERED, that Case No. N-
268-91 remain open pending the expiration of the time
to appeal this decision, and if an appeal is taken, until
disposition of the appeal.
/s/ Stephen F. Eilperin
STEPHEN F. EILPERIN
Judge
4ia
[Filed Apr. 17, 1996]
DISTRICT OF COLUMBIA COURT OF APPEALS
N268-91
Nos. 94-FS-140 and 94-FS-274
IN RE: T.J.,M.D. & C.J.,
Appellants.
No. 94-FS-277
IN RE: M.H., T.J.,
Appellant.
BEFORE: Wagner,* Chief Judge; Ferren, Terry, Stead-
man,* Schwelb, Farrell, King,* Ruiz,** and Reid, As-
sociate Judges.
ORDER
On consideration of the petition of appellee, M.H.,
for rehearing and rehearing en banc, the opposition and
responses thereto, the motion of Mattie Giles to file
amicus curiae brief supporting petition, the lodged brief,
the motion of appellants for leave to late file opposition
to motion to file amicus curiae brief, and the lodged op-
position, it is
ORDERED by the merits division * that the petition
for rehearing is denied. It is
FURTHER ORDERED that the motion of Mattie
Giles to file amicus curiae brief supporting petition and
the motion of appellants for leave to late file opposition
to motion to file amicus curiae brief are granted and the
** Associate Judge Ruiz has recused herself from these cases.
42a
Clerk is directed to file the lodged brief of amicus curiae
and the lodged opposition to the motion; and it appearing
that the majority of the judges of this court has voted to
deny the petition for rehearing en banc, it is
FURTHER ORDERED that the petition for rehearing
en banc is denied.
PER CURIAM
43a
On Petition for Rehearing En Banc
Statement of FERREN, Associate Judge, dissenting from
denial of the petition for rehearing en banc:
The division in this case has ruled:
We now .. . hold that unless it is established
that the parent is not competent to make such a
decision, a child and the natural parents share a
vital interest in preventing erroneous termination of
their natural relationship, and, therefore, a parent’s
choice of a fit custodian for the child must be given
weighty consideration which can be overcome only
by a showing, by clear and convincing evidence,
that the custodial arrangement and preservation of
the parent-child relationship is clearly contrary to the
child’s best interest.
In re T.J., M.D., & C.J., 666 A.2d 1, 11 (D.C. 1995)
(citation omitted). My quarrel is not with this rule of
law. Nor am I sure that an injustice would result from
the division’s disposition. But I believe the divison ser-
iously errs in presuming to apply its new rule of law to
an old record.
The division not only reverses T.J.’s adoption by the
foster mother but also' remands the case for entry of an
order granting custody to the child’s great aunt. Absent
trial court findings of fact under the newly adopted clear
and convincing evidence standard, this court should not
itself award custody. That order not only requires im-
proper appellate court fact-finding, as Judge SCHWELB
points out, but also results in an imprudent appellate
court disposition based on a stale record. It is one thing
to affirm trial court findings as of the time they are made
or to remand for new findings which, in a case like this.
presumably would take into account evidence of changed
circumstances since the earlier ruling. It is quite another
thing for an appellate court to apply a newly-announced
rule of law to its own findings of fact based on a record
44a
dated years earlier, and then to order a change of cus-
tody. For all the division knows, the trial judge on
remand—reviewing past and present facts after hearing
from the parties and material witnesses—might see the
matter differently even when the new rule of law is ap-
plied. Rather than presume to know what is in the child’s
best interest at this time, the division should have re-
manded for the trial court to reopen the record and ap-
ply the law of this case as all the facts now warrant.
After all, a child’s life is at stake, and one would think
that any change of custody should occur only after the
most current information is considered.
I had hoped the division would revise its opinion by
granting the petition for rehearing, since this is not the
kind of routine correction the en banc court is normally
convened to address. But the division has voted not to
rehear. Because I am concerned about the impact on
all concerned of an immediate change of custody without
an updated review of the facts that conceivably could
affect the result, I would have the en banc court rehear
the case in the hope of obtaining a more principled
disposition.
I recognize the importance of finality. Presumably, the
division hoped to achieve that result here rather than re-
manding for new findings that might lead to still an-
other appeal and continued uncertainty. But in doing so
the division acted both as lawmaker and as fact-finder—
without all the facts. When this court announces a rule
of law different from the one employed by the trial court,
it is sometimes possible for this court to say that, even
under the new rule, the result must be such-and-such, as
a matter of law, on this record. But that presupposes a
static record. In this kind of case, the record can change
significantly over time, and thus it is important that the
correct rule of law be applied to a current, not an old,
record. This the division did not—indeed, it could not
—do.
45a
The division, however, ended its opinion with footnote
20:
This conclusion is reached with the recognition that
an initial order for child custody is always open to
modification by the court where warranted by a
change of circumstances affecting the child’s best
interest.
Id. at 17 n.20. I take this to mean that on proper
motion the parties and the trial court effectively can in-
terdict this court’s order for an immediate change of cus-
tody by reopening the record to reexamine whether a
change of custody would be appropriate. If I am cor-
rect in this interpretation of the court’s order, it would
have saved everyone concerned a good deal of anxiety,
as well as considerable time and effort, if the division
had said so directly—or, better still, had announced its
new clear and convincing evidence standard and then
simply remanded for the trial court to apply it.
46a
Statement of SCHWELB, Associate Judge, dissenting
from the denial of the petition for rehearing en banc:
I.
The trial judge gave this difficult, case balanced,
thoughtful and sensitive consideration. He recognized
that there was much to be said on both sides of the con-
troversy, and he effectively articulated the strengths and
weaknesses of the respective parties’ positions. In the
end, however, he concluded that the foster mother’s peti-
tion to adopt T.J. should be granted because a contrary
disposition would create an unacceptable risk of serious
harm to the boy. The judge explained that
[f]or me, the pre-eminent reasons for approving
{T.J.’s] adoption, despite my confidence in his great-
aunt’s competence to provide him a warm and lov-
ing home, are [T.J.’s] fierce attachment to [the
foster mother], the wonders she has accomplished
with him, her extraordinary parental abilities, and
the serious risk that pulling [T.J.] away from her
will permanently scar his development.
(Emphasis added).
With respect to the expert testimony, the trial judge,
who heard the witnesses and had the opportunity to as-
sess their evidence first-hand, found Dr. James Egan’s
views and analysis to be the “most informative and per-
suasive.” In conformity with Dr. Egan’s testimony, the
judge found as follows:
Essentially, for a child’s successful development,
race, gender, extended family, and all else is sub-
servient to the fundamental importance of forming
an attachment very early on to a person who is
viewed as fundamentally different from all others
and irreplaceable. When that fails to happen, when
the attachment is not fixed, of if fixed, is disrupted,
the child has truly serious difficulties developing into
a caring, loving, human being... .
47a
{T.J.] has not had an easy four years. That he
is doing as well as he is, is, in Dr. Egan’s words,
“a triumph for him and for those who have cared
for him, but it’s a fragile triumph.” Moving now,
even to a home as caring as [the great aunt’s], would
be a disaster because of the very real risk that in
destroying his trusting attachment to [the foster
mother] [T.J.] will be unable to trust anyone.
That to me is the crux of these cases. Against
long_odds [T.J.] has succeeded in establishing a
son/mother attachment with [the foster mother].
That bond should not be severed.
(Emphasis added).
Any fair-minded reader of the judge’s opinion would,
I think, agree that it was written after full reflection on
the difficult issues at hand. The judge did not exag-
gerate or overstate. He chose his words carefully. I am
quite sure that when the judge used the word “disaster,”
he meant exactly that.
Il.
In spite of the trial judge’s finding that removal would
create a serious risk of permanently scarring T.J.’s de-
velopment, the division has directed the judge to take the
very step which he has described as courting disaster. The
division has not held, nor could it rationally hold, that
the judge’s evidentiary finding that removal would be
disastrous is clearly erroneous, for there was ample ex-
pert evidence to support it.’ The effect of the division’s
opinion is therefore to order that T.J. be moved out of
his home notwithstanding the judge’s finding that such a
step would create an unacceptable risk of serious harm.
1 The division does make an appellate finding of fact that the
foster mother failed to make the necessary showing by clear and
convincing evidence. In my opinion, it is the trial judge’s job, and
not the appellate court’s, to make such findings.
48a
The division has held that the judge erred in applying
the “preponderance of the evidence” standard to the ques-
tion whether it was in T.J.’s best interest to be adopted
by the foster mother. According to the division, a “clear
and convincing” evidence standard should have been ap-
plied instead. Assuming, arguendo, that the division’s
position as to the required level of proof is correct, the
appropriate remedy would be to remand the case to the
trial judge with directions to reconsider the record under
the clear and convincing evidence standard.? Telling the
judge to issue an order which, as he has expressly found,
would court disaster and risk serious harm to the child
is not, in my opinion, an acceptable option.’
III.
Rehearing en banc is appropriate only “(1) when con-
sideration by the full court is necessary to secure or main-
tain uniformity of its decisions, or (2) when the proceed-
ing involves a question of exceptional importance.” D.C.
App. R. 40(e). I believe that each of these criteria has
been satisfied in this case.
2 Because the judge explicitly found by clear and convincing evi-
dence that the biological parents’ consent to T.J.’s adoption had
been withheld contrary to T.J.’s best interests, and because he
believed that moving T.J. out of his home would be a disaster, I
question whether his application of the allegedly wrong standard
affected his ultimate disposition.
81 acknowledge, however, that footnote 20 to the division’s
opinion, 666 A.2d at 17, tempers the rigor of the holding. The
trial judge will presumably have to decide, in conformity with
that footnote, whether the additional time which T.J. has remained
in the foster mother’s home since the trial represents a new and
material change of circumstances. T.J. is now more than six and
a half years old, and has lived in the foster mother’s home for more
than four years. Even assuming, as the division suggests, that
no impartial trier of fact could reasonably have ruled for the
foster mother at the time of the trial if the clear and convincing
evidence standard had been utilized, there have now been two more
years of bonding since that time.
49a
We have repeatedly held that where a child’s future
placement is at issue, the court must act as parens patriae
in the child’s best interest, and must not expose him to
serious risk of harm. See, e.g., In re L.L., 653 A.2d 873,
886-87 (D.C. 1995); In re L.W., 613 A.2d 350, 354-55
(D.C. 1992). “Courts will not gamble with a child’s fu-
ture.” L.L., supra, 653 A.2d at 887 (quoting Jn. re Inter-
est of P.M.C., 437 N.W.2d 786, 792 (Neb. 1989)).* We
have insisted that judges “monitor the situation carefully
and promptly take steps to protect [the child] if [his] phys-
ical or emotional welfare is endangered.” Jn re S.C.M.,
653 A.2d 398, 406 n.12 (D.C. 1995). Each case is, of
course, different, but ordering the removal of T.J. from
his home notwithstanding a finding that such a move
would be a disaster for him cannot be reconciled with the
fundamental reasoning which underlies the cited authori-
ties, as well as many others.
Moreover, the trial judge’s decision was consistent not
only with Dr. Egan’ testimony, but also with our past
jurisprudence. We have recognized that it would be
“ruthless beyond description to take a child out of a lov-
ing home, when [he] has lived at that home for a sub-
stantial period of time as a result of [his] biological par-
ents’ inability or unwillingness to care for [him].” L.L.,
supra, 653 A.2d at 883 (quoting Jn re: Hazel Wood's
Adoption, 29 A.2d 88, 90 (Pa. 1942)); see also authori-
ties cited id. at 883-84. In light of the trial judge’s evi-
dentiary findings and the expert testimony on which they
were based, the removal of T.J. from the foster mother’s
home would likewise be unfair to him. In my judgment,
the division’s disposition therefore imperils the uniformity
4In L.L. supra, we went so far as to set aside a trial judge’s
decision where, in our view, the judge’s disposition would have
exposed the child to an unacceptably high risk to his physical and
emotional well-being. In the present case, in which the judge has
acted to protect the child from harm, this court should not inter-
fere.
50a.
of our decisions within the meaning of D.C. App. R.
40(e)(1).
This appeal also raises a question of exceptional im-
portance. See Rule 40(e)(2). The case is important
not only to T.J., whose future and well-being have been
placed at risk, but also to innumerable other children
whose interests may be jeopardized by a precedent of the
kind which the division’s opinion sets in this case. Never
before, to the best of my knowledge, have we ordained, by
appellate fiat, a disposition which, according to the well-
supported evidentiary findings of the judge who heard the
case, would threaten disaster to the child in whose interest
the court is supposed to be acting.
The full court should look long and hard at a division
opinion creating such a precedent. Accordingly, I re-
spectfully dissent from the denial of the foster mother’s
petition for rehearing en banc.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.