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August 29, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Virginia L. Riley, Trial Judge

Rogers,* Chief Judge, and Ferren and Belson, Associate Judges. Opinion by Associate Judge Ferren at p. 2. Opinion Concurring in part, Dissenting in part, by Chief Judge Rogers at p. 97. Dissenting opinion by Associate Judge Belson at p. 118.

The opinion of the court was delivered by: Per Curiam

In this appeal from an order of adoption, this court addresses the question whether H.R., a natural father who seeks custody of his child, grasped his "opportunity interest" in developing a relationship with his child, and, if so, whether the trial Judge applied the correct standard in concluding that Baby Boy C.'s best interest called for his adoption by the O. family over H.R.'s objection.

Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983), recognizes that a non-custodial father has a constitutionally protected "opportunity interest" in developing a relationship with his child. The Division agrees that the statutory best interest of the child standard must be applied in determining whether to grant a petition for adoption filed by unrelated persons, that the statute incorporates into the best interest standard a preference for a fit unwed father who has grasped his opportunity interest, and that this preference can be overridden only by a showing by clear and convincing evidence that it is in the best interest of the child to be placed with unrelated persons. Because the best interest standard, as applied by the trial court, did not incorporate such a parental preference, a majority concludes that a remand is required to apply the best interest standard as properly formulated. The Dissenting Judge would affirm the trial Judge's ruling that H.R. did not grasp his "opportunity interest" and would hold that reversal and remand are inappropriate in any event because of the trial Judge's determination concerning the effect that transfer from the adoptive parents would have upon the child.

FERREN, Associate Judge: This case concerns the constitutional and statutory rights of an unwed father, appellant H.R., a citizen of Zaire who has been seeking custody of his infant (now seven-year-old) son, Baby Boy C. The child's mother, L.C., is a United States citizen who conceived the child while serving as a Peace Corps volunteer in Zaire. She returned to the United States and, ten days after the child was born in August 1983, relinquished her own parental rights to the Barker Foundation, a licensed child placement agency in the District of Columbia, to facilitate adoption of the child. In September 1983, Barker placed the child with adoptive parents, Mr. and Mrs. O., who, the same day, filed a petition for adoption in Superior Court. Although, upon leaving Zaire, L.C. had told H.R. she was pregnant, a mutual friend told H.R. in July that L.C. had had an abortion. H.R. was not aware that he had a son until sometime in October 1983, when L.C. informed H.R. that they had a child which she had placed for adoption. At this time, however, L.C. did not inform H.R. that he had rights concerning the child, even when he expressed his intent to assume custody of the child himself. Similarly, although the Barker Foundation sent H.R. two letters seeking his consent to adoption, the agency never informed him of his right to seek legal custody, or of Barker's role in the adoption process, or of the pending legal proceeding. In fact, for eighteen months, from October 1983 to April 1985, H.R. received no notice, official or otherwise, that a judicial proceeding had been initiated that could cut off all his legal rights to his child, despite the fact that throughout this period he was in contact intermittently with L.C. and with Barker, asking for information about his legal rights and manifesting a desire to take custody of his son. It was not until April 1985, after the trial court had issued an interlocutory decree of adoption and Baby Boy C. was 20 months old, that H.R. finally received notice of the court proceeding in the form of an order to show cause why a final adoption decree should not be granted to Mr. and Mrs. O., coupled with an order for H.R. to appear before the court in June 1985 to provide testimony on the issue. After several hearings on the petition held in June 1985 and over the next eleven months, the trial court granted the petition of Mr. and Mrs. O. to adopt Baby Boy C. as being "in the best interests of the child."

H.R. contends the adoption proceedings which granted custody of Baby Boy C. to the O. family (1) violated his statutory and constitutional rights to immediate, adequate notice of the adoption proceedings, including due diligence to assure he received notice, and (2) applied the wrong test by ordering the adoption in "the best interests of the child" without granting him a custodial preference as a natural parent, absent a showing of unfitness. He therefore urges us to remand this case for application of a "fitness" test whereby H.R. would assume custody of Baby Boy C. unless the court found him unfit to be a parent.

I conclude that H.R.'s constitutional and statutory rights have been violated and that the court applied the wrong legal test in granting the adoption. I further conclude that when an unwed, non-custodial father has not abandoned his "opportunity interest" in developing a relationship with his child, the Constitution mandates that we construe our "best interests" standard under the adoption statute to include a custodial preference for a "fit" parent. In this case, I conclude as a matter of law that, because of unlawful state action, H.R. cannot be said to have abandoned his "opportunity interest." Under the circumstances, therefore, the court should have awarded custody to H.R. if found "fit" to be a parent, unless clear and convincing evidence demonstrated that such custody would have been detrimental to the "best interest" of Baby Boy C. Because the trial court incorrectly applied a more traditional "best interest" test that did not begin with a presumption of custody for a "fit" natural parent, and because we, as an appellate court, cannot properly apply the correct test on this record, we vacate the judgment and remand the case for further proceedings.


A. Case History

Baby Boy C.'s mother, L.C., met H.R. in the village in Zaire where she was teaching. *fn1 At the time, appellant was on leave from his law studies at the university in Kinshasa, Zaire. In April 1983, when L.C. learned she was pregnant, the Peace Corps immediately evacuated her to Washington, D.C. Upon her departure, L.C. wrote a letter to H.R. informing him that she was pregnant and that he was the father. She hinted that she planned to have an abortion, saying that what she would have to go through in the United States would exhaust her physically and emotionally and that she would return to Zaire in two weeks. She also said that she did not want anyone to know about the matter. L.C. never went back to Zaire. In July, a mutual friend of L.C. and H.R. told H.R. that L.C. had had an abortion in Washington, D.C. In fact, however, L.C. gave birth to Baby Boy C. in the District on August 5, 1983. Ten days later, L.C. relinquished her parental rights to the Barker Foundation.

In early August 1983, when he was visiting the dean's office at the University of Kinshasa from which he had graduated in June, H.R. happened upon a letter from the Barker Foundation postmarked over two months earlier in May. The letter notified him that L.C. was expecting to give birth to a child in July. *fn2 Along with its letter, Barker sent three forms: an "Admission of Paternity and Consent to Adoption" form, a "Statement of Non-Paternity and Consent to Adoption" form, and a biographical data form. Neither the letter nor the accompanying forms indicated that H.R. had the right not to consent to the adoption and the right to seek custody of his child himself. Upon receiving this information, H.R. immediately wrote a letter to L.C. in care of her parents, in order to ascertain what in fact had occurred over the past several months. L.C. received this letter in mid-September, after she had left Washington to attend graduate school in Chicago. Because she was unsure of H.R.'s whereabouts and afraid that her letter might be intercepted and read by his relatives, L.C. answered the letter without mentioning the birth of Baby Boy C. or the plans for adoption. L.C., however, gave H.R. a telephone number where she could be reached. *fn3

On September 22, 1983, the Barker Foundation placed Baby Boy C. with the O. family. On the same day, the O. family filed a petition for adoption in Superior Court. No notice was sent to inform H.R. of a formal adoption proceeding seeking to terminate his parental rights to Baby Boy C. in favor of a new adoptive family. *fn4 On September 29, 1983, the court issued an order of reference, directing Barker to investigate the truth of the allegations contained in the petition for the purpose of determining whether Baby Boy C. was "a proper subject for adoption and if the home of the petitioners is a suitable one" and to file a report in ninety days.

In October 1983, after receiving L.C.'s response to his letter in which she had acknowledged receiving his letter but had not mentioned a baby, H.R. called her and learned for the first time that he had a son. According to L.C.'s testimony at the eventual hearings in this case, H.R. did not have a good understanding of United States adoption procedures and thought that L.C. had abandoned the child. Both in this conversation and in one that followed in the same week, she said, L. C. informed H.R. that she had given up her parental rights to the child, that Baby Boy C. had been placed in a loving home where he was being well cared for, and that they would never be able to see the child again. L.C. also urged H.R. to send his autobiographical information to the Barker Foundation. According to H.R.'s testimony at the same hearings, however, he asked L.C. to send the baby to him in Zaire, but L.C. had responded that, although she had considered sending him the child, she had decided against it. In November, believing that H.R. did not really comprehend the adoption process, L.C. wrote H.R. another letter, describing her sense of loss in giving up their child but stating her belief that Baby Boy C. was "at home" and loved by his adoptive parents and older brother. According to H.R., he responded by informing L.C. of his opposition to the adoption and offering to take the baby if she did not want to raise him herself. He further testified that he had difficulty grasping the idea that L.C. had really given up all her rights to the child.

In December 1983, in compliance with the court's order of reference, Barker submitted its report to the trial court and its formal consent to the adoption petition. Barker recommended entry of an interlocutory decree of adoption. In the report, Barker indicated that it had been unable to contact H.R., who had a statutory right to notification of, and presence at, a hearing on the adoption petition. Barker added that it had tried to reach H.R. at the university at Kinshasa but had received no response to its letter. Alice Avery, the Barker social worker responsible for the Baby Boy C. case, testified at the hearing that, although she had told the court she did not know H.R.'s whereabouts, Barker had not contacted L.C. to ask if she had heard from H.R. Nor, said Avery, had the agency attempted to contact H.R. or to update his address since mailing the consent forms to the university seven months earlier. Although the report provided the names of H.R.'s many siblings in Zaire, Avery testified that she had not pressed L.C. to provide their addresses because L.C. preferred the university address for reasons of confidentiality. Avery also testified that the report did not tell the court that L.C. had other possible addresses for H.R. Baby Boy C. was now four months old.

On January 17, 1984, H.R. called the Barker Foundation, having received a Christmas card from L.C. in which she had expressed her growing emotional distance from the adoption and noted what a wonderful gift (a son) the O. family had received for Christmas that year. Telephone communication was difficult; H.R., a native French speaker who understands some English, speaks French almost exclusively. Because Avery, the Barker social worker, did not speak French, one of Barker's secretaries who knew some French spoke with H.R. and recorded notes of the conversation. According to these notes, H.R. acknowledged his paternity. H.R. also requested clarification of the forms he had received in August and indicated that he did not understand the portion of the documents requiring him to give up his rights, particularly his right to see his son. H.R. told the secretary that the mails in Zaire were very bad and that he would be more likely to receive correspondence addressed to him in care of the Peace Corps in Zaire, an address Barker could obtain from L.C. According to the secretary's notes, H.R. also told her that he was expecting, shortly, to take a trip to France or to Canada during which he hoped to come to the United States to see his child. At no time during this conversation did Barker communicate to H.R. that he had a right to seek custody of his son, that a formal adoption proceeding had been instituted in which he had a right to contest his child's adoption, or that Barker had just recommended entry of an interlocutory decree of adoption in favor of the O. family.

Two days later, on January 19, 1984, Avery received a letter of January 12, 1984, from L.C. stating that she had recently received a letter from H.R., that H.R. did not consent to the adoption, that he would ask for the baby as soon as possible, and that he planned to be studying in Canada in March and might come to Chicago or Washington at that time. In this letter, L.C. expressed strong opposition to H.R.'s gaining custody of the baby. *fn5

On January 25, 1984, Judge Schwelb denied the petition for an interlocutory decree of adoption, noting his concern "that all reasonable steps have not been taken to contact [H.R.]." The Judge observed that Barker's December report listed many of H.R.'s siblings, thereby suggesting "it would probably not be difficult to contact him." The Judge stated that the court should not entertain the petition for adoption until proof was offered that "all reasonable steps to locate H.R. had been exhausted." According to Judge Schwelb, "an Order to Show Cause directed to his last known address, without further reasonable inquiry into his present whereabouts, will not be sufficient." (Emphasis in original.)

Barker filed an addendum to its January report on February 1, 1984, informing the court of H.R.'s January 17 telephone call, his willingness to acknowledge paternity, his lack of clarity about the documents he received, particularly those pertaining to giving up his legal rights, and suggesting that he could be contacted in care of the Peace Corps in Kinshasha, Zaire, an address which L.C. could provide. The agency also summarized the letter it had received from L.C. reporting that H.R. desired custody of Baby Boy C. as soon as possible, that he had marked "no" on the consent forms, and that he planned to come to Canada in March. The addendum did not inform the court that H.R. had directly informed Barker in the January 17 telephone conversation that he might be travelling in France or Canada and that he hoped to come to the District of Columbia to see the baby. The report also failed to mention that H.R. had told Barker that mail delivery in Zaire was terrible, a fact suggesting, perhaps, an alternative form of service of process would be better.

On February 6, 1984, Barker sent H.R. a letter, translated into French, in which it purported to clarify the documents it had sent him. The letter was sent by Worldwide Courier to H.R. in care of the Peace Corps in Zaire. It stated in relevant part:

Following your telephone call of January 17, 1984, I would like to try to explain to you the documents that we have sent you. These documents explain the adoption procedure.

Legally, adoption in the United States must conform to strict procedures administered by the Courts, following which the child takes the name of his adoptive parents and enjoys the same rights and privileges and status as their own children. The laws concerning adoption protect the rights of the child, of the biological parents, and of the adoptive parents. After [L.C.] signed the documents giving up her rights as a parent, all responsibility for the child was transferred to the adoptive parents at the moment in which the child was placed with them.

Moreover, the law requires that an effort be made in good faith to inform the biological father of the plans for adoption. The documents that were sent to you in May 1983 and the letters from [L.C.] informed you of this. The letter that you received from the Barker Foundation requires your cooperation by requesting you to sign the documents of consentment to the adoption and to supply particulars that can be imparted to the adoptive parents and eventually to your child.

I can well imagine that you found this very painful and we wish to help you in this matter in a way that is satisfactory for you. At the same time, we hope not to have to bring up again the matter of the adoption by this excellent family and who, according to [L.C.] and the adoption agency, meets the best interests of the child.

Do not hesitate to get in touch with us regarding this matter. *fn6

Again, Barker did not mention that H.R. had a legal right to seek custody or that Barker was a party to formal adoption proceedings seeking to terminate H.R.'s parental rights in favor of the O. family. Nor did Barker provide any information about that proceeding. The letter also did not inform H.R. that Barker was gathering information for the court, including information ascertained in its communications with H.R., for the court's use in determining Baby Boy C.'s best interests. *fn7

On March 5, 1984, Barker filed with the court another addendum to its December report, stating that it had sent H.R. a letter "informing him of the placement, the agency's work with [L.C.] and his rights as the putative father of the child." (Emphasis added). The addendum also related the substance of L.C.'s February telephone conversation with H.R. in which he had told her that he could not accept the all-or-nothing nature of adoption (which would not allow him to see his child) and that he intended to seek custody for himself. The report noted that L.C. was satisfied that Baby Boy C.'s placement with the O. family was in his best interests and "that she is willing to assist in any way she is able to prevent the placement from being disrupted." After this addendum was received, internal court memoranda suggest that the court considered but did not issue an order to show cause why the adoption should not be granted. According to testimony and exhibits presented at the hearing, such a show cause order has been the vehicle through which the court gives notice to interested parties in a contested adoption case or when consent to adoption has not been obtained. Baby Boy C. was now seven months old.

In late April 1984, H.R.'s government sent him to Paris, France, to obtain a doctorate in international law, rather than to Canada as he had expected. H.R. and his wife, whom he had married in December 1983, telephoned L.C. twice in early May 1984 to inform her of their current situation. Appellant testified that during these conversations he asked L.C. to inform the Barker Foundation that he intended to come to the United States to take custody of Baby Boy C. when he had saved enough money. At the hearings, H.R. and L.C. had different recollections of this conversation. L.C. testified that H.R. told her he would consent to the adoption, and she passed this information on to Barker in a May 8, 1984 letter. H.R. testified that he had expressed his absolute opposition to the adoption but had said that he would consider sending in the biographical data form to Barker. Although appellant had given L.C. his Paris address during their telephone conversations, L.C. did not provide this address to Barker.

On May 22, 1984, Barker filed L.C.'s May 8 letter with the court, along with her letter of January 12 and an affidavit of Avery, stating that appellant was planning to sign the consent forms. The affidavit gave appellant's address as the Peace Corps in Zaire, even though H.R. had indicated in January that he might be moving to France and L.C. had informed Barker that H.R. in fact had just written to her from France. In June, L.C. wrote to H.R., stating that she did not want to hear from him again and sending him photographs of Baby Boy C. taken at birth. The baby was now ten months old.

On July 23, 1984, the court ordered Barker to translate a show cause order into French, ordering H.R. to appear in court on October 15, 1984, "to show cause . . . why an order should not be made granting the petition for adoption." Although, at this point, H.R. had received no notice that an adoption petition had been filed, the order commented that H.R. had "not initiated any action to either formally consent or to oppose the adoption." The order was sent to H.R. on August 15, 1984, by registered mail in care of the Peace Corps in Zaire. *fn8 Although Barker had not communicated directly with H.R. since January and had received intervening information indicating that he was in regular contact with L.C. -- who had just reported him to be in Paris -- no effort was made to ascertain H.R.'s current whereabouts. This was true despite the fact that Judge Schwelb's order in January denying the interlocutory decree of adoption had stated that the Order to Show Cause should not be issued unless specific inquiries were made as to H.R.'s current address. Neither the receipt nor the Order to Show Cause was returned to the court. H.R., who was living in Paris at the time the letter was mailed, testified that he did not receive it. Baby Boy C. was now one year old.

On October 15, 1984, Judge Riley entered an interlocutory decree of adoption in favor of the O. family, to become final on April 15, 1985, unless set aside for good cause shown. The order declared, among other things, that H.R. was withholding his consent to the adoption contrary to the best interests of the child. H.R., who had never received notice of the judicial adoption proceeding, was not present at the show cause hearing. According to H.R.'s later testimony, after three months of attempting unsuccessfully to gain assistance at the United States embassy, he finally met an official there who referred him to an American lawyer working in Paris. On November 30, 1984, on the advice of his attorney, H.R. formally acknowledged paternity in writing and filed it with his attorney. After his attorney had advised him that Barker was a legal adversary whom he must inform of his intention to seek custody in order to protect his legal rights, H.R. wrote a letter informing Barker that if it was not going to permit him the right to visit the child or to make decisions about the baby's future, H.R. was ready to assume custody of his child. H.R. also provided his Paris address. Although H.R. mailed this letter on December 1, 1984, Barker did not receive it until February 6, 1985. Barker filed a translation of this letter with the court but did not respond to it.

On February 25, 1985, appellant wrote Barker again, advising that he had retained an attorney and had admitted paternity. On the advice of his attorney, he asked Barker to inform the court that he did not intend to abandon his child. He stated that he would like to gain custody of his child by Baby Boy C.'s second birthday. He proposed that, once he gained custody, the O. family be allowed visitation rights during vacations. Barker received this letter on March 3, 1985, and filed it with the court on March 11, along with a translation. Again, Barker did not respond to H.R.'s letter. On April 5, Barker filed a final report, recommending entry of a final decree of adoption by the O. family.

On the basis of H.R.'s December 1, 1984, and February 25, 1985, letters to Barker, in which he expressed a refusal to consent to the adoption and indicated he had retained legal counsel, on March 21, 1985, Judge Riley issued an order to show cause as to whether the interlocutory decree of adoption should be set aside for good cause shown. On April 15, 1985, after considering the brief of the O. family and the Barker Foundation, Judge Riley ordered the interlocutory decree of adoption extended until June 30, 1985. The court also ordered H.R., through counsel, to file pleadings giving evidence as to why adoption of Baby Boy C. would not be in the child's best interests and to appear before the court before June 30, 1985 to give testimony on the issue. This order, served on H.R. at his Paris address, as well as on his attorney, was the first communication he had received informing him of the adoption proceeding against him. Baby Boy C. was 20 months old at this time.

B. June 1985 Hearing

On June 28, 1985, H.R. appeared before the Family Division of Superior Court and moved to set aside the interlocutory decree of adoption. Hearings before Judge Riley began that day and were held on five other occasions throughout the next ten and one-half months. After an initial four-month delay to accommodate H.R., further hearing dates were again delayed for seven months to accommodate the court's schedule. *fn9 Testimony was taken from H.R., L.C., the O. family, Avery, a former Peace Corps volunteer who knew L.C. and H.R., Dr. Allen E. Marans, an expert for the O. family qualified in child psychiatry, child-psychoanalysis, child development and adoption, and Dr. Joseph D. Noshpitz, an expert for H.R. qualified in child psychiatry but not qualified as an expert in adoption. Deposition testimony of H.R. and his wife was also admitted.

Dr. Marans, testifying in July 1985 on behalf of the O. family, had met with Baby Boy C., both adoptive parents, and Baby Boy C.'s older adoptive brother on several occasions during late June and early July 1985, both at his office and in the family home. Dr. Marans described Baby Boy C. as a happy, healthy, normal three-year-old child, fully integrated into the O. family. He said that the O. parents were emotionally stable, exceptionally sensitive parents, who were slightly overprotective of Baby Boy C. Concerning the effects of removing Baby Boy C. from the O. family, Dr. Marans stated that, although a child at three days or six weeks of age would suffer no permanent scar from a change in custody, such a change would be "devastating" to a child of 23 months, the age of Baby Boy C. at the time Dr. Marans testified. He described the period of life between one and one-half and two years as the rapprochement period, a critical time of integration when the child reaches a stage of separation and independence from the parents. Although the child is able to view other persons as separate individuals, the child can become quite frightened in realizing that the parents are not nearby. The effect is devastating if the parent does not return to remind the child of his or her past security. Dr. Marans testified that a child of 23 months would not be able to accept the natural father as a substitute for the only parents the child had known. He also testified that if the child were removed from the family at three years of age, the effect still would be devastating, but different, since three-year-olds are in the process of character development. Dr. Marans believed that Baby Boy C. had developed very strong ties to his adoptive parents and older brother.

Dr. Noshpitz met with Baby Boy C., his adoptive parents, and brother and with H.R. and his wife sometime after Dr. Marans did. Dr. Noshpitz testified in May 1986 when Baby Boy C. was three months shy of three years old. Like Dr. Marans, Dr. Noshpitz also testified that the O.s were warm and loving parents deeply attached to Baby Boy C. He also testified that Mr. and Mrs. R. were a devoted couple who could provide a loving home for Baby Boy C. *fn10 Concerning a transfer of custody, Dr. Noshpitz agreed with Dr. Marans that a transition in custody is more effective the earlier it takes place. He was concerned, however, that Baby Boy C. would suffer feelings of wonder and anger at a later stage when he learned that he was adopted and that his natural father had sought, but been denied, custody. Dr. Noshpitz advocated a period of transition over several years, during which H.R. and his wife would gradually assume custody. Dr. Noshpitz, agreeing with Dr. Marans, recommended against an immediate order transferring custody of Baby Boy C. to H.R. and his wife, stating that such transfer "would create great turmoil and great pain" and would have "long-range, very traumatic effects" on the child's future development.

Dr. Marans testified in rebuttal that an arrangement of the sort proposed by Dr. Noshpitz was naive because it ignored the negative psychological effects such a plan would have on the child's security and identity. He agreed that Baby Boy C. would experience anger and resentment at learning that his natural father had sought to raise him, but he opined that the experience would not destroy the boy's personality. Dr. Marans further testified that Dr. Noshpitz's proposal was imaginative but completely untried and ignored the strength of the child's attachment to those who nurture him. Dr. Marans stated that the gradual transfer plan would create an everlasting sense of insecurity in Baby Boy C. and undermine his ability to trust in others.

C. Trial Court Decision

In Proposed Findings of Fact and Conclusions of Law submitted to the trial court after completion of the hearings, H.R. argued that the Barker Foundation and the O. family had violated the District of Columbia adoption statute by not providing H.R. with immediate notice of the filing of the adoption petition. H.R. also argued that Barker and the O. family had deprived him of due process of law by failing to inform him of his legal right to seek custody of Baby Boy C. and by failing diligently to ascertain H.R.'s whereabouts for purposes of serving him with the adoption petition. H.R. contended that, by failing to receive notice of the official adoption proceeding, he was precluded from coming forward to assert his constitutionally protected liberty interest in developing a relationship with his son before the baby had developed a relationship with the O. family. See Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983). H.R. then argued that he was entitled to custody of Baby Boy C. because he was fit to serve as his father; a best interests-of-the-child standard should not be applied, he said, because it failed to recognize his liberty interest in a relationship with his child -- something that the O. parents did not have. According to H.R., the application of a best interests analysis would encourage adoption agencies to thwart a natural father's statutory and constitutional rights to notice and to deprive him of an opportunity to be heard at a meaningful time and in a meaningful manner. Under that analysis, he said, in the end the child's relationship with the adoptive parents would always enable those parents to prevail, without regard to the natural father's interests. H.R. argued, finally, that even if a best interests standard were applied, it would be more harmful to Baby Boy C. in the long run to be cut off from his natural father.

In its decision issued on September 11, 1986, the trial court rejected H.R.'s due process arguments. *fn11 The court concluded that H.R. had received all the constitutional protection he was due under Supreme Court jurisprudence. According to the court, "the efforts of Barker Foundation to contact [H.R.] far exceeded the procedural protections upheld in Lehr." Even accepting H.R.'s argument under Lehr that natural fathers possess a so-called "opportunity interest" in developing a relationship with their children, the court concluded that H.R. had failed to grasp that opportunity and was himself responsible for some of the delay in receiving official notice of the adoption because he had failed to keep Barker informed of his changes of address. The court stated that H.R. had received a full and fair opportunity to present whatever arguments he had in support of his position that the adoption petition should be denied. The court concluded, moreover, that Barker had no obligation to inform H.R. of his legal rights. Finding lawful and appropriate -- and applying -- the "best interests of the child" standard, the trial court credited Dr. Marans' testimony over that of Dr. Noshpitz, who, according to the court, was not an expert in adoption and who admitted that his proposal for custody was untried and without precedent in adoption situations. The court concluded that the "devastating" effect of removing Baby Boy C. from the O. family "could not be removed by the experimental and unprecedented gradual transition and custody that Dr. Noshpitz proposed." The court granted the petition for adoption by the O. family, finding by clear and convincing evidence, see In re J.S.R., 374 A.2d 860, 864 (D.C. 1977), that this was in the best interests of Baby Boy C.


District of Columbia law governing custody of minor children has developed somewhat haphazardly since 1897. Significant amendments to the adoption and Family Division statutes in the 1970's, however, make statutory resolution of the present case at best a guess. These legal developments -- covered next in Part III. -- comprise an important background for understanding the claim of an unwed, non-custodial father, such as H.R., to custody of his child. Under the guardianship statute, D.C. Code § 21-101 (1989), there has long been a presumption favoring a natural parent's custody of a minor child, absent a showing of parental unfitness, when another adult or the welfare authorities have sought custody. In other contexts, however, courts have kept the parent on an equal footing with other would-be custodians and have decided custody in the "best interests of the child". They have done so, for example, under the adoption statute, id. §§ 16-304 (e), -309 (b)(3), the neglect statute, id. § 16-2320 (a), and the statute governing termination of parental rights, id. §§ 16-2353, -2359 (f) (1989). In considering the rights of an unwed, non-custodial father confronted by strangers seeking adoption of his child upon its surrender by the mother at birth, a court confronts a question without a discernible answer: whether, under the adoption statute, the child's "best interests" should be defined by reference to the parental preference favoring the father under the guardianship statute, or should be resolved by considering the father's and the adoptive parents' respective claims without giving priority to either. I believe that any statutory analysis would yield an arbitrary result derived either from selection of statutory canons of construction or from the court's own policy views. Such a result can be avoided by focusing on constitutional considerations which the Supreme Court has imposed on the analysis.

Beginning in the early 1970's and extending into the 1980's, the Supreme Court has issued significant constitutional decisions bearing on an unwed father's rights. This important legal chapter is analyzed in Part IV. Here I conclude that, despite the absence of a substantive statutory right, the unwed father has a substantive, constitutionally protected liberty interest under the fifth amendment -- now commonly called an "opportunity interest" -- in gaining custody of his child.

Part V. considers whether appellant H.R.'s "opportunity interest" is still intact. I conclude that it is. State action, violating H.R.'s right to procedural due process under the fifth amendment, has interfered with H.R.'s early assertion of his claim -- his "opportunity" -- for custody of Baby Boy C. This interference tolled the running of the period within which H.R. had to make a timely assertion of his interest in custody.

Finally, in Part VI., I consider how to apply the father's "opportunity" interest in a contested adoption proceeding. I conclude that when, as here, an unwed, non-custodial father has not lost his "opportunity interest," the Constitution entitles him, if found fit to be a parent, to the benefit of a preference of the sort long established under the guardianship statute, D.C. Code § 21-101 (1989), i.e., to a custodial preference over would-be adoptive parents unless the court finds by clear and convincing evidence that the father's custody would be detrimental to the best interests of the child. I trace our local caselaw in this area, much of which comprises constitutional rulings in the late 1970's, and conclude that, while our decisions routinely have applied a "best interests" test without a parental preference, none is directly on point and none would preclude the result reached here. As a consequence, because the trial court applied a traditional "best interests" balancing test, not a "fitness" test with its parental preference, we must reverse and remand for further proceedings.


In cases contesting child custody, the courts of this jurisdiction have issued two lines of decisions which we occasionally have said may be difficult to reconcile: (1) those awarding custody to the natural parent absent a showing of unfitness (a "fitness" test), and (2) others permitting termination of parental rights in the "best interests of the child" without a required showing of parental unfitness (a "best interests" test). *fn12 Analysis of these cases shows they do not clearly reveal an answer to the claim to custody by an unwed, non-custodial father when the mother surrenders their child at birth for adoption by strangers.

A. Statutory and Common Law Through 1976

In this jurisdiction, the awarding of custody in the "best interest" of the child as the "paramount" consideration originated in Wells v. Wells, 11 App. D.C. 392, 395 (1897), a case in which each divorcing spouse, as a natural parent, had an equal claim to custody. See also Seeley v. Seeley, 30 App. D.C. 191, 193 (1907) (same), cert. denied, 209 U.S. 544, 28 S. Ct. 570, 52 L. Ed. 919 (1908). Five years after Wells, in a case where the father of eleven-year-old twins died and their mother remarried -- and the children's maternal grandmother and aunt sought custody -- the court, citing Wells, acknowledged once again that the "paramount consideration" was the "permanent advantage and welfare of the children." Beall v. Bibb, 19 App. D.C. 311, 313 (1902). But, to that end, the court recognized the mother's "preferential claim" over any non-parent, absent a finding of unfitness based, for example, on "abandonment" or "misconduct." Id. at 313-14 (citing cases from other state courts).

In light of Beall, the guardianship statute has been construed over the years to give natural parents, including a surviving parent, priority -- absent a showing of unfitness -- over a variety of nonparents who have contested the custody of minor children. Sea D.C. Code § 21-101 (1989); Shelton v. Bradley, 526 A.2d 579 (D.C. 1987) (unwed father prevails over maternal grandmother); Davis v. Jurney, 145 A.2d 846 (D.C. 1958) (mother prevails over husband's sister); Bell v. Leonard, 102 U.S. App. D.C. 179, 251 F.2d 890 (1958) (mother prevails over sister of child's alleged father); see also Johnson v. Lloyd, 211 A.2d 764 (D.C. 1965) (mother prevails over married couple with whom four-year-old child had resided for over three years); Jackson v. Fitzgerald, 185 A.2d 724 (D.C. 1962) (father prevails over maternal grandmother). *fn13

In another relatively old case, In re Stuart, 72 App. D.C. 389, 394, 114 F.2d 825, 832 (1940), the court similarly applied a parental preference in reversing a trial court ruling on a petition filed by the Probation Department of the Juvenile Court. The trial court found that a fifteen-year-old child living with her mother did not have "adequate parental care," within the meaning of the Juvenile Court Act. 52 Stat. 596, ch. 309 (June 1, 1938). In contrast with the decisions discussed in the preceding paragraph, the trial court awarded custody to an unrelated person with whom the child, apparently, had never resided. The court of appeals reversed, ruling that the trial court's finding of inadequate parental care was "without warrant" in the evidence and thus violated the 1938 Act's incorporation of the natural parents' inherent constitutional "right" and "liberty" to "direct the upbringing and education of their children," absent "cruelty" or "neglect" or "unfitness in character or mode of life." Stuart, 72 App. D.C. at 394, 396, 114 F.2d at 830, 832 (citing Pierce v. Society of Sisters, 268 U.S. 510, 533, 45 S. Ct. 571, 69 L. Ed. 1070 (1925)).

In contrast with the cases in which parental preference was considered a rebuttable presumption (i.e., Beall, Seeley, Shelton, Davis, Bell, Johnson, Jackson, and Stuart), later courts shifted to a "best interests" test, without regard to parental preference, in cases where a natural parent had earlier surrendered custody of her child to the welfare authorities (voluntarily or otherwise) or to an adoptive family and later sought to regain custody. See In re N.M.S., 347 A.2d 924 (D.C. 1975) (foster parents, not mother, awarded custody in best interests of nine-year-old girl whom mother had voluntarily surrendered to Social Rehabilitation Administration when child was four days old); In re LEM, 164 A.2d 345 (D.C. 1960) (mother permanently deprived of parental right to minor child, committed for two-and-one-half years to Child Welfare Division for lack of "adequate parental care," whose best interests lay in Division's being in position to consent to adoption); Cooley v. Washington, 136 A.2d 583 (D.C. 1957) (custody determination reversed for application of best interests criteria to contest over thirteen-year-old boy between natural mother -- who had surrendered child for adoption by her sister and brother-in-law, both now deceased -- and child's stepmother, the brother-in-law's second wife); Holtsclaw v. Mercer, 79 U.S. App. D.C. 252, 145 F.2d 388 (1944) (foster parents of three-and-a-half year-old child retained custody in child's best interest when mother, who had relinquished child at birth, sought to regain custody on ground she had consented to arrangement under duress). *fn14

Three of these four cases reflect the court's view that in "seeking to regain -- not retain -- custody," N.M.S., 347 A.2d at 927, the natural parent by her earlier actions has put herself on an equal footing with the state, or with another nonparent, and thus, as a result, "what is best for the child, rather than the natural right of the parent, is the controlling factor." Holtsclaw, 79 U.S. App. D.C. at 252, 145 F.2d at 388. Put another way, "the probable welfare of the child is the controlling consideration[,] and all questions of superior rights are entirely subordinated." Cooley, 136 A.2d at 585 (footnote omitted). In sum, in a situation where there previously had been an acknowledgement or finding of unfitness resulting in a temporary withdrawal of custody from the natural parent, in a subsequent custody proceeding the fitness test yielded to a best interests test. Implicit in these rulings, with their language subordinating parental rights to a child's welfare, is the following understanding: although a child's interests ordinarily may be best served by granting custody to a fit parent, it is possible in some circumstances that the child's interests may be better served by someone other than a concededly fit parent.

The fourth "best interests" case, LEM, added another dimension. It recognized that the prospect for adoption is an especially significant concern in evaluating the child's best interests. 164 A.2d at 347. As a consequence, the court authorized termination of parental rights with a view to facilitating adoption, although not in connection with an adoption proceeding itself. The opinion noted that "no attack is made on the court's statutory power to act as it did, and indeed none could be sustained in view of the court's plenary power in this area." Id., 164 A.2d at 349.

Whatever the merits of this last observation at the time, it no longer applied to the statutory scheme adopted in 1970. See D.C. Code §§ 16-2301 to -2337 (1973) (incorporating Pub. L. 91-358, title I, § 121 (a), 84 Stat. 535 (July 29, 1970)). In In re C.A.P., 356 A.2d 335 (D.C. 1976), we stated that D.C. Code § 16-2320 (a) (1973), while permitting the termination of parental rights, did so "only in the context of an adoption proceeding. . . . The sine qua non is that the adoptive parents petition the court for the child" pursuant to D.C. Code §§ 16-301 to -315 (1973). C.A.P., 356 A.2d at 338; see White v. N.E.M., 358 A.2d 328 (D.C. 1976) (same). We held that Super. Ct. Neg. R. 18(c), which, -- in apparent implementation of a catchall provision, § 16-2320 (a)(5) *fn15 -- expressly permitted termination of parental rights "in the best interest of the child" without regard to a pending adoption proceeding was, in essence, a nullity. See C.A.P., 356 A.2d at 336 & n.1, 339 & n.13, 344. As a result of C.A.P., parents enjoyed greater protection of their parental rights; a court could consider terminating parental rights only if an adoption petition was pending.

Within the realm of adoption, however, the courts virtually ignored the parental rights of fathers of children born out-of-wedlock. In 1976, when C.A.P. was decided, the adoption statute did not require the consent of the father of a child born out-of-wedlock. See D.C. Code § 16-304 (b)(2)(A), (C) (1973). Aside from constitutional considerations, any question of parental rights in an adoption proceeding as to a child born out-of-wedlock focused exclusively on the rights of the mother. But, even the rights of unwed mothers, as well as those of married parents, were statutorily limited. It is true that adoption was typically premised on consent, see id. § 16-304 (b), or on an earlier relinquishment of parental rights, see id. § 16-304 (a), coupled with a finding (among others) that "the adoption will be for the best interests of the prospective adoptee," id. § 16-309 (b)(3). The court, however, could grant the petition for adoption without a particular consent under certain circumstances: if the parent could not be located or had abandoned the child, id. § 16-304 (d), or if the court found, after a hearing, that the consent was "withheld contrary to the best interests of the child," id. § 16-304 (e). Cf. D.C. Code § 16-202 (1951) (consent may be dispensed with when investigation has shown "extraordinary cause"). In this respect, the adoption statute reflected the same "best interest" test which had been applied for Dispositions of neglected children whose natural parents had voluntarily or involuntarily surrendered custody.

The caselaw development through 1976, therefore, reflects the following:

1. In a contest over custody of a minor child between a parent and a foster parent, or between a parent and the District of Columbia child welfare authorities, the natural parent would prevail absent a showing of unfitness (including neglect) -- with the following significant exception.

2. When there had been a surrender of custody to the child welfare authorities at the instance of the natural parent, or pursuant to court order upon a petition by the welfare authorities and a showing of neglect, any subsequent custody decision would be made exclusively with reference to the best interests of the child, and the parent would stand on no better footing than other participants (such as foster parents) seeking custody. Theoretically, therefore, a non-parent could obtain legal custody of the child in this situation without showing (current) parental unfitness.

3. After the C.A.P. decision in 1976, the courts could continue with a variety of Dispositions for neglected children, such as foster care, in the best interests of the child, but they had no authority to terminate parental rights for neglect or otherwise, except in connection with an adoption proceeding.

4. As to children born out-of-wedlock, the court could approve an adoption in the child's best interests after the mother had relinquished her parental rights, or with the consent of the mother (or, when appropriate, by overriding her refusal to consent), without notice to, or consent of, the father -- even if he were known.

B. Statutory Developments: Termination of Parental Rights

Effective September 23, 1977, the Council of the District of Columbia in effect overruled C.A.P. by amending the law to permit termination of parent and child relationships "in the best interests of the child," D.C. Code § 16-2353 (Supp. V 1978), wholly apart from an adoption proceeding (as then codified at D.C. Code § 16-301 to § 16-315 (1973 & Supp. IV 1977)). This statutory "best interests" test for termination proceedings, codified in the same section of the current D.C. Code, reflected the language of a considerable body of caselaw and paralleled the long-standing approach under not only the statutes governing Dispositions of neglected children, see, e.g., D.C. Code § 16-2320 (a) (1973), but also our local adoption statutes, see, e.g., D.C. Code § 16-203 (c) (1951) ("the change will be for the best interests of adoptee"); id. § 16-309 (b)(3) (1989) ("the adoption will be for the best interests of the prospective adoptee"). In contrast with the adoption statute, however, and even as amended, the termination statute continues to focus on the capabilities of the natural parent, thereby allowing that parent to defend against attacks on his or her capabilities wholly apart from, and not in comparison with, other custodians or potential adoptive parents.

C. Statutory Developments: Adoption

Could there be, however, any reason to believe that, in contrast with the termination statute, D.C. Code § 16-2353 (1989), the adoption statute, with its traditional "best interests" language, see D.C. Code §§ 16-304 (e), -309 (b)(3) (1989), nonetheless incorporated a parental preference with a corresponding "fitness" test under some circumstances? Of the seven custody cases applying a fitness test discussed earlier -- Beall, Shelton, Davis, Bell, Johnson, Jackson, and Stuart -- only one, Bell, concerned a petition for adoption. That aspect of the case was not material to the analysis, which was the same in all these cases without regard to the type of custody sought. As elaborated below, I perceive no basis for saying that termination of parental rights of a non-consenting parent under the adoption statute can be divorced from analysis under the termination statute.

More specifically, absent a parent's consent to adoption (or earlier relinquishment of parental rights), a court cannot enter an interlocutory decree of adoption under D.C. Code § 16-309 (b) (1989) *fn16 and override a parent's refusal to consent as "contrary to the best interests of the child," id. § 16-304 (e) (1989), *fn17 unless the parent's custodial rights are terminable under criteria such as those identified in the termination statute, id. § 16-2353 (1989) (grounds for termination of parent and child relationship). *fn18 Cf. In re D.R.M., 570 A.2d 796, 804-05 (D.C. 1990). *fn19 Thus, even if the birth mother were to consent to an adoption, the court could not terminate the parental rights of the non-consenting father through an adoption proceeding -- assuming his consent were required -- unless, as to him, § 16-2353-type criteria were met.

As indicated earlier, however, consent to adoption of a child born out-of-wedlock traditionally has been limited to the mother; the unwed father, at least as a matter of statutory law, has had no standing to object. See D.C. Code § 16-304 (b)(2)(A), (C) (1973). But in 1976, perhaps in anticipation of constitutional requirements, *fn20 the adoption statute was amended to require the consent of a father of a child born out-of-wedlock. See D.C. Code § 16-304 (b)(2)(A) (Supp. IV 1977) (incorporating D.C. Law 1-87 (Oct. 1, 1976) which struck paragraphs C and D, and modified paragraph A). *fn21

Accordingly, given the fact that an unwed father was now entitled to notice and to consentor to object to an adoption proceeding when the mother elected, for example, to surrender the child for adoption at birth, we must ask whether the Beall-Davis-Bell-Jackson-Johnson-Shelton line of cases grants the father -- who has never been formally charged with neglect or other elements of unfitness -- a custodial preference in such circumstances. In Shelton, a 1987 case, we applied the guardianship statute, D.C. Code § 21-101 (1989), see (supra) note 13, in granting custody to the child's unwed father -- with whom the child had lived "on some occasions," 526 A.2d at 580 -- over the maternal grandmother upon the death of the child's mother. There was no issue of unfitness or neglect. We recognized that the custodial presumption in the father's favor is rebuttable only "by clear and convincing evidence of abandonment, unfitness, or other circumstances which render the parent's custody detrimental to the best interests of the child." Id. (citations omitted). At first blush, therefore, it would appear this statute should apply on behalf of the father when a mother puts a child up for adoption, for the statute is not limited to cases of a surviving parent. See Davis; Bell.

On the other hand, it is not clear that the guardianship statute, with its parental preference, is intended in all cases to prevail over the adoption statute, with its "best interests" test. It is difficult to conclude, purely as a matter of statutory construction, that an unwed, non-custodial father who has not helped attend to the child before or after birth belongs exclusively in the guardianship arena, not in the adoption-termination arena. This is especially true because the guardianship statute is almost ninety years old, see (supra) note 13, whereas the fathers of children born out-of-wedlock were not even party to the adoption process until 1976.

It is one thing to say that, as between a natural parent and another relative or family friend -- both of whom have had a relationship with the minor child -- the parent presumptively should have custody, which is what the Beall to Shelton line of cases under the guardianship statute stands for. It is not as easy to find statutory support for the proposition that, when an unwed mother surrenders her child for adoption and the father is nowhere to be found at the time the adoption agency takes physical custody, the guardianship statute nonetheless accords that father -- if ever found -- presumptive custody. It is just as persuasive to say that, in such circumstances, any such presumptive custody has been rebutted by the father's ostensible abandonment of the child, putting the statutory burden on him and on the would-be adoptive parents to assert their respective claims on an equal footing under the "best interests" test, as in Holtsclaw, Cooley, LEM, and N.M.S.

To make matters even more complicated, one can imagine an unwed father whose claim to custody, as in Shelton, appears so deserving relative to any other solution that he should be accorded presumptive custody. One can also imagine unwed fathers whose indifference to the child has been so obvious that his refusal to consent to adoption after the mother has surrendered the child should not be enough to trigger a presumption favoring his right to custody over an adoptive family, even if he is not demonstrably unfit. The District of Columbia adoption and termination statutes, however, as well as our local caselaw, provide no basis for concluding that some unwed fathers are entitled to a custodial preference while others are not.

Accordingly, it would appear that selecting one statutory approach or the other in a particular case, in the absence of any relevant legislative history whatsoever, would be a decision for the court to make in a relatively new context based either on an arbitrary selection among canons of statutory construction or on policy-oriented criteria selected by the court. We could take either approach and purport to make a sound statutory construction, but either has obvious limitations in the absence of an easily assessable statutory answer.

There is a better approach. Given recent caselaw development in the Supreme Court, in this court, and in other courts around the country, it is clear that the judiciary has employed the Constitution to provide substantive content to unwed fathers' custodial claims. Fifty years ago in Stuart, the United States Court of Appeals for the District of Columbia Circuit construed the Juvenile Court Act of 1938 to conform to the court's understanding of constitutional requirements: a custodial preference for the custodial parent, absent a showing of unfitness in a neglect case. *fn22 If the Constitution were so to require in the context of an unwed, non-custodial father, then the question of statutory construction would be resolved, as in Stuart, by constitutional imperative. Having "read ahead," so to speak, I am satisfied that constitutional analysis provides a more useful approach to the question -- "fitness" test or "best interest" test? -- than a rendezvous with canons of statutory construction or with our own reasoned (or instinctive) policy views.

I therefore turn to recent constitutional developments, in order to learn where a noncustodial, unwed father stands in a proceeding for adoption of his child by strangers. How prophetic for this context, if at all, was Stuart's ruling that the Constitution protects a natural parent's "inherent" right to custody absent unfitness? See id., 72 App. D.C. at 394, 396, 114 F.2d at 830, 832.


A. Supreme Court Caselaw

H.R. contends he has a substantial "liberty" interest under the due process clause in developing a parental relationship with his son. I agree. The Supreme Court has long recognized that state intervention in the relationship between a parent and child is subject to constitutional oversight, see Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). And, of course, fifty years ago in Stuart the United States Court of Appeals identified "the liberty of parents to direct the upbringing and education of their children" as a constitutional right. 72 App. D.C. at 396. More recently, the Supreme Court has reiterated "that the relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection." Lehr, 463 U.S. at 257. The Court, however, in discussing the interests of unwed fathers in preventing termination of their relationships with their children, has treated differently the claims of fathers who have had custodial relationships with their children by the time of the termination proceeding and those who have not.

In Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), the state placed the children of unwed parents in guardianship after their mother's death over objection of their natural father, who had lived with and supported them all their lives. The Court held, as a matter of due process and equal protection, that the state could not deprive the father of custody without notice, hearing, and proof of his unfitness for parenthood.

Several years later, moreover, in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979), the Court struck down a New York statute that permitted consent to adoption exclusively by the mother of a child born out-of-wedlock. As in Stanley, the natural father had lived with his two children and their mother, and supported them, for several years. After the mother had left with the children, remarried, and gained legal custody, the mother's new husband sought to adopt the children over the natural father's objection. The New York courts applied the statute and granted the adoption. The Supreme Court reversed, holding that, by permitting such adoption without consent of the father, the statute imposed a gender-based discrimination that did not bear a substantial relation to some important state interest, in violation of the equal protection clause. The Court eschewed discrimination

against unwed fathers . . . when their identity is known and they have manifested a significant paternal interest in the child. The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned judgment as to the fate of their children.

Id. at 394.

In contrast, in Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978), where the unwed father had not "at any time, had, or sought, actual or legal custody of his child," the Court upheld an adoption decree terminating the father's parental rights under Georgia's "best interests of the child" standard and granting legal custody to the eleven-year-old child's mother and stepfather. In upholding the adoption, the Court stated that due process would no doubt be violated if the state were "to attempt to force the breakup of a natural family" on the basis of the "children's best interest" without some showing of parental unfitness. Id. (quoting Smith v. Organization of Foster Families For Equality and Reform, 431 U.S. 816, 862-63, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977) (Stewart, J., Concurring in judgment)). But, the Court noted, the result of the adoption was "to give full recognition to a family unit already in existence." Quilloin, 434 U.S. at 255. The Court implied that the outcome would have been different if the proposed adoption had placed "the child with a new set of parents with whom the child had never before lived." Id.

Read together, these cases say that an unwed natural father who has had a custodial relationship with his child cannot be ousted as a parent at the mother's behest -- absent a showing of his unfitness -- in favor of a foster parent (Stanley) or an adoptive stepfather (Caban), but that an unwed father who has not developed a custodial relationship, though fit to be a parent, can lose his parental rights to an adoptive stepfather when the best interests of the child preclude disruption of "a family unit already in existence" (Quilloin). *fn23

What, then, is to occur if an unwed father (1) has never had a relationship with his child but (2) seeks custody when a "proposed adoption would place the child with a new set of parents with whom the child had never before lived"? Quilloin, 434 U.S. at 255. The Court addressed that question -- at issue in this case -- in Lehr. Basically, the Court concluded the answer turns on how early and persistently the natural father pursues his interest in taking custody of the child so as to justify keeping the father presumptively first in line, so to speak, when the natural mother elects to put the child up for adoption.

According to the Court in Lehr, when an unwed father "demonstrates a full commitment to the responsibilities of parenthood by 'coming forward to participate in the rearing of his child,' Caban, 441 U.S. at 392, his interest in personal contact with his child acquires substantial protection under the Due Process Clause." Lehr, 463 U.S. at 261. The Court noted that "the mere existence of a biological link does not merit equivalent constitutional protection." Id. But,

the significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development.

Id. at 262 (emphasis added). Thus, the Court has characterized the unwed, non-custodial father's protectible liberty interest as an "opportunity" he must "grasp[]." Courts and commentators accordingly have relabelled this particular liberty interest of a natural father as his "opportunity interest." See In re Baby Girl Eason, 257 Ga. 292, 358 S.E.2d 459 (1987); Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson, 45 OHIO ST. L.J. 313, 351-53 (1984) [hereinafter Buchanan, Constitutional Rights]. It follows that a noncustodial, unwed father who has grasped his opportunity interest will, as a matter of substantive constitutional right, be in the same position as the custodial father in Stanley: entitled to an "individualized hearing on fitness." 405 U.S. 645, 657,62 S. Ct. 1208, 31 L. Ed. 2d 55, n.9. See Buchanan, Constitutional Rights, at 354, 373.

Because a non-custodial father may not grasp the opportunity to develop a relationship with his child in a timely, meaningful manner, his eventual assertion of his opportunity interest may be too late and thus not entitled to the constitutional protection available to a custodial father. In Lehr, for example, the Court upheld against a due process challenge an adoption decree granting legal custody to the child's mother and stepfather, even though the natural father had not been notified of, or allowed to participate in, the adoption proceeding. By the time the petition for adoption was filed, Lehr had failed to establish a parental relationship with his two-year-old daughter attributable in large part to the mother's desire to prevent contact between them. Significantly, however, Lehr also had failed to submit his name to New York's putative father registry, an action that would have guaranteed he received notice of any action to terminate his parental rights. Lehr, 463 U.S. at 250-52. The Supreme Court concluded that, under the circumstances, the New York statutory scheme, designed "to protect the unmarried father's interest in assuming a responsible role in the future of his child," provided sufficient process by guaranteeing putative fathers "who have never developed a relationship with the child the opportunity to receive notice simply by mailing a postcard to the putative father registry." Id. at 262 n.18. Because Lehr did not have a significant custodial, personal, or financial relationship with his child at the time notice would have been sent, id. at 263, and because he had failed to take advantage of his statutory right to establish a legal tie, the Court concluded there was no due process violation in terminating his parental rights without advance notice. Id. at 265. According to the Court, Lehr's failure to avail himself of state statutory protections meant that he was not entitled to notice. "The Constitution does not require either a trial Judge or a litigant to give special notice to nonparties who are presumptively capable of asserting and protecting their own rights." Id. at 265. In short, the Supreme Court concluded that the putative father registry scheme afforded Lehr the minimum notice Stanley required, see Lehr, 463 U.S. at 263-64 & n.20, and that the proposed adoption was responsive to Quilioin's support for recognition of a family unit already in existence. Id. at 262 & n.19.

Lehr, therefore, "limits the situations in which the state must take account of a father with only an opportunity interest." Buchanan, Constitutional Rights, at 354. But Lehr implies that an unwed father who does grasp his opportunity interest may be as constitutionally protected as the ...

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