September 30, 1991
D.M., R.M., AND J.S., APPELLEES
Appeal from the Superior Court of the District of Columbia; Hon. Harold L. Cushenberry, Trial Judge.
Rogers, Chief Judge, Ferren, Associate Judge, and Pryor, Senior Judge.
The opinion of the court was delivered by: Rogers
Appellant S.S. assigns three errors by the trial Judge in ordering the adoption of her six-year old son, J.S., by appellees D.M. and R.M., the child's maternal great aunt and her husband. *fn1 She contends that the trial Judge (1) erred in permitting the child's guardian ad litem to perform the dual roles of attorney and witness at the show cause hearing on why the petition for adoption should not be granted, (2) erred by taking judicial notice of and relying on findings of fact in a prior neglect proceeding where the evidentiary standard was only a preponderance of the evidence, and (3) abused his discretion in concluding that terminating appellant's parental rights was necessary to provide stability for the child, thereby denying her due process by not ordering the least drastic alternative affecting her fundamental right to raise her child. We agree that the Judge erred in allowing the guardian-attorney to act as attorney and witness at the hearing, but conclude that, in the absence of objection in the trial court, there was no miscarriage of Justice. For the same reason, while we agree that the Judge usually could not properly rely in finding a need to terminate parental rights on findings by a preponderance of the evidence in a neglect proceeding, in the absence of objection in the trial court, we conclude there was no miscarriage of Justice. Finding appellant's due process contention meritless, we affirm.
The child first came to the attention of the D.C. Department of Human Services (the department) in 1985 when he was a little over two years old, when his mother, appellant, took him to the hospital for treatment of an accidental burn after the child spilled hot water on himself while eating at a lunch counter with his mother. *fn2 During the child's stay in the hospital, appellant's unusual behavior attracted the attention of hospital employees, who contacted the department. *fn3 In 1985 a neglect petition was filed, and in 1986 the child was removed from appellant's care, and placed temporarily in shelter care. He was subsequently placed in the custody of his maternal grandmother, with whom appellant lived, but removed after less than four months. At appellant's suggestion, the child was placed on July 8, 1986 with appellees, the child's maternal great aunt, D.M., and her husband, R.M., and has resided with them ever since. *fn4 On June 2, 1988, appellees filed a petition to adopt the child.
The evidence showed that after the child had been with appellees for about a year friction developed between appellant and appellee great aunt, and appellant's visits with her child were shifted from appellees' home to the department. *fn5 Appellant's visits with her son at the department also did not always go well. *fn6 The child's guardian ad litem testified that he had accompanied appellant and her child on three visits, and that while appellant and the child enjoyed portions of their time together, the visits were sometimes marred by her angry outbursts. *fn7 In addition, the guardian ad litem described the child's progress while living with appellees, *fn8 observing that originally the child was withdrawn, barely speaking and walking only with difficulty, but through speech therapy and leg braces obtained by appellee great aunt, his disabilities had been eliminated. *fn9 The guardian's testimony also revealed that the child considered appellees to be his parents and their home his home. The guardian ad litem further testified that although his original efforts had been aimed at reunification of appellant and her son, upon witnessing the child's development while he was living with appellees, he now recommended that appellees be allowed to adopt the child.
Appellant testified that she wanted to have her son returned to her. She was of the opinion that she had cooperated with the court's orders in the neglect proceeding which had directed her to see psychiatrists and that she did not need psychiatric therapy or parenting classes. *fn10 She explained that she did not fully trust doctors, that she was steadily employed and had always been drug free, and that she had a home for her child. *fn11 She also expressed frustration with the courts because the matter of her child's custody had been pending for five years, stating that she wanted the Judge to make a decision about what was going to happen to her son and that if the adoption was ordered she would not interfere. She admitted hitting her child during supervised visits but claimed her conduct was justified under the circumstances, and also admitted taking her child home without the department's permission.
The trial Judge found that appellant was withholding her consent to the adoption contrary to the child's best interests. *fn12 Upon consideration of the statutory factors for termination of parental rights, D.C. Code § 16-2353 (1989), *fn13 as well as the best interests standard in adoption proceedings, D.C. Code § 16-309 (b)(3) (1989), *fn14 and balancing the options of leaving the child in appellees' foster care, the Judge concluded that adoption was in the child's best interests, and granted appellees' petition for adoption of the child, thereby terminating appellant's parental rights to her child.
Appellant contends that the trial Judge erred in allowing the child's guardian ad litem to serve dual roles as attorney and witness at the show cause hearing on the adoption petition. By serving as a witness testifying from his personal knowledge and also acting as an attorney explaining and commenting on the evidence and examining witnesses, the guardian's credibility was enhanced in the eyes of the court, appellant maintains. She further maintains that allowing the child's attorney to testify as a fact witness violated the ethical rules prohibiting attorneys from acting as both advocates and witnesses in the same proceeding, D.C. RULES OF PROFESSIONAL CONDUCT Rule 3.7 (Supp. 1991), and that these prohibitions exist precisely because of the prejudice to an opposing party that may result when the dual roles combine to enhance the attorney's credibility in the eyes of the fact-finder. Because appellant did not object at trial to the guardian ad litem testifying as appellees' witness, our review is limited to a determination of whether the error resulted in a "miscarriage of Justice." Scoggins v. Jude, 419 A.2d 999, 1002 (D.C. 1980); see also President and Directors of Georgetown College v. Diavatis, 470 A.2d 1248, 1251 (D.C. 1983) (citing Miller v. Avirom, 127 U.S. App. D.C. 367, 384 F.2d 319 (1967)).
We first review the testimony of the guardian ad litem, then the statutory framework, and finally the Rules of Professional Conduct.
The child's guardian ad litem testified, as a witness for appellees, that he was originally appointed as guardian ad litem for the child at the initial hearing in August 1985, when the child was at St. Anne's Receiving Home. *fn15 The guardian ad litem explained that he had viewed the child as his client but that he had also acted in "a kind of protective role for him." *fn16 In the opinion of the guardian ad litem, appellees' petition for adoption should be granted in the child's best interests. Summarizing the reasons for his opinion, the guardian ad litem pointed to the child's view of appellees' home as his home, the child's development while residing with appellees, and the guardian's opinion that reunification is "not a viable goal in this case." The guardian began to explain why he had changed his mind from his original position that the mother had not neglected the child and that the child should be returned to her.
At this point the trial Judge inquired of the guardian ad litem whether, during the neglect proceeding, he had been wearing "both your attorney hat and your guardian ad litem hat?" The guardian replied that since the child was only three years old at the time of the neglect proceeding, he had been acting as guardian ad litem. Yet in describing his conduct the guardian ad litem recounted that he had challenged the government's vague allegations of neglect, obtained two medical evaluations of appellant, and concluded then that as between government care and appellant's care, the child's best interests lay in being with appellant, particularly since one doctor had testified that appellant could benefit from therapy, which he was willing to provide. After the child was placed with appellees, however, the guardian ad litem became "a fan of Mrs. M -- --," appellee great aunt, once he observed "the remarkable turnaround" in the child while under her care.
Thereafter, the trial Judge asked the guardian ad litem a series of questions about the child: his physical condition when the guardian first met him, whether the guardian's observations of the child had been continuous to the present time, whether the child's physical problems persisted at the present time and how they had been abated; about appellees: the guardian's opinion of the suitability of appellees' home for the child, their financial ability to provide for the child, the child's relationship with appellee great uncle; and about reunification: the guardian's efforts to reunify appellant and the child, and the reason that reunification efforts ceased. Regarding reunification, the guardian ad litem described the three visits he had monitored between appellant and the child in late 1988 and early 1989, when appellant took umbrage at the child's view of appellees as his parents. The guardian ad litem also expressed his legal opinion that the termination of parental rights statute allowed for a shift in emphasis from reunification to the child's need for stability and continuity of care. On cross-examination the guardian ad litem described the deteriorated relationship between appellant and appellee great aunt, and admitted he was unaware of the precise nature of appellee great uncle's "mental functioning."
The District of Columbia Code is not unlike the statutes in other jurisdictions which do not always clearly distinguish between the dual roles of a guardian ad litem. *fn17 Commentary in the area has identified two principal roles, which may in practice overlap, the first being that of a neutral fact-finder, and the second that of a zealous advocate. *fn18 As neutral fact-finder, the attorney's duties are to investigate the details of the case and to prepare a report summarizing the relevant facts for the presiding Judge; as factfinder, the attorney does not recommend a particular Disposition. As advocate, the attorney forms an opinion, either in consultation with the child or based on his or her own analysis, about the Disposition which would promote the child's best interests and advocates that position before the court.
The District of Columbia Code provides that "in any proceeding wherein the custody of a child is in question, the court may appoint a disinterested attorney to appear on behalf of the child and represent his best interests." D.C. Code § 16-918 (b) (1989). With respect to any neglect or termination of parental rights proceeding, the Code provides for the appointment of counsel for the child, D.C. Code § 16-2304 (b)(1) (1989), and that:
The Superior Court shall in every case involving a neglected child which results in a judicial proceeding, including the termination of the parent and child relationship . . . appoint a guardian ad litem who is an attorney to represent the child in the proceedings. The guardian ad litem shall in general be charged with the representation of the child's best interest.
D.C. Code § 16-2304 (b)(3) (1989). The legislative history indicates that this statute was designed to bring the District of Columbia Code into conformity with federal law, and that the Council of the District of Columbia contemplated an advocacy role for the guardian ad litem:
Section 402 would require that a guardian ad litem who is an attorney be appointed for the child. Section 402 complies with the Child Abuse Prevention and Treatment Act, PL 93-247, Jan. 31, 1974, [ *fn19] which requires that states have statutory provisions for the appointment of a guardian ad litem for the child in neglect proceedings. Given the complexities and the adversary nature of the proceedings involved in neglect litigation, your committee feels it is important that this guardian be an attorney who can function in the court and who can, in addition to advocating the child's best interests, act as the child's counsel.
Report to the Council of the District of Columbia from the Committee on the Judiciary, Title IV, Bill No. 2-48, The Prevention of Child Abuse and Neglect Act of 1977, at 16 (Mar. 29, 1977). In addition, the District of Columbia Code provides generally that the court may appoint a "guardian of the children when it appears to the court that the welfare of the children requires it." D.C. Code § 21-101 (b) (1989). *fn20 By contrast with these statutes, which address the dual roles of a guardian ad litem without necessarily distinguishing between the two, the District's general guardianship statute envisions only an advocacy role for the guardian ad litem, providing explicitly that the guardian shall not be a neutral fact-finder and that the Judge must make part of the record the reason for appointing the guardian ad litem and the duties of the guardian ad litem. D.C. Code § 21-2033 (1989). *fn21
The statutes as well as the testimony of the guardian ad litem indicate that the trial court appointed a guardian ad litem to serve as an advocate for the child in the neglect proceeding. The guardian ad litem continued as an advocate, according to his testimony, almost to the time of the Disposition in the neglect proceeding. D.C. Code §§ 16-918 (b), -2304 (b)(2) & (3). Later, while monitoring three of appellant's visits with the child, the guardian ad litem may have functioned more like a fact-finding guardian ad litem. Once the adoption proceeding began, D.C. Code § 16-309 (1989), however, he resumed his role as advocate. But as a witness for appellees he also appears, from the trial Judge's questions about the guardian's observations of the parties, to have assumed the role of neutral factfinder from the commencement of the neglect proceeding. After completing his testimony, the guardian ad litem again resumed his advocacy role.
There may well be overlapping functions for a guardian ad litem who is appointed during a neglect proceeding when subsequent events result in either a termination of parental rights or an adoption proceeding. The definition of the precise roles of the attorney and the guardian ad litem for children is still evolving and not without difficulty. *fn22 But what happened here went beyond a mere overlapping of the dual roles of a guardian ad litem; the advocate guardian became a witness for one of the parties to facts and opinions on the ultimate issues. For this purpose the guardian's roles as advocate and as neutral factfinder are distinct, and the D.C. Rules on Professional Conduct make clear that there is reason to keep them separate.
Rule 3.7 of the D.C. Rules on Professional Responsibility states the traditional prohibition:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
RULES OF PROFESSIONAL CONDUCT Rule 3.7, District of Columbia Court Rules Annotated (Supp. 1991). *fn23 The commentary on the rule recites the basic reason for prohibiting an attorney from being both attorney and witness, namely, to avoid conflicts that arise when an attorney puts his or her own credibility at issue in litigation. Such conflicts may prejudice the client when the attorney's testimony is impeached on cross-examination, or may prejudice the opposing party, when the attorney's testimony is given undue weight by the fact-finder as a result of his dual role. *fn24 See Comments to Rule 3.7; see also MacArthur v. Bank of New York, 524 F. Supp. 1205 (S.D.N.Y. 1981) (rule protects both client and opposing party). Violation of the Rule 3.7 creates, in effect, a rebuttable presumption of prejudice.
Appellant argues persuasively that an attorney, as an advocate of one position, usually has an interest in the outcome and does not make legal arguments from the witness stand. When the same person acts as attorney and witness, the attorney puts his or her credibility on the line and, as an officer of the court, may well be viewed less critically than a lay witness. Appellant maintains, therefore, that the attorney's credibility is enhanced in a contested proceeding when the attorney is allowed to testify and comment on the evidence. *fn25 Further, because of the presumption that a guardian ad litem acts solely in the best interests of the child, appellant maintains that the testimony of a guardian ad litem is likely to be given even greater credibility by the trier of fact since the guardian ad litem is viewed as an unbiased witness without a stake in the litigation in the same sense as an attorney for a party to an adversary proceeding.
Specifically, appellant contends that she was prejudiced precisely because the guardian's testimony was accorded the type of undue weight which the attorney-witness prohibitions were designed to avoid. She observes that the trial Judge described the guardian as " voice to [the child's] perceived best interests," thereby presenting her with "the difficult dilemma of having to argue against his credibility." Her position was made even more difficult, she continues, by the substance of the guardian's testimony in which he indicated that he originally supported reunification between the mother and child, but changed his view when he observed the progress of the child under appellees' care. Furthermore, during closing arguments, the guardian ad litem stated to the trial Judge, "You have heard my testimony," thereby as attorney relying on his evidence as a witness.
The issues on which the guardian ad litem testified were clearly in dispute and went to the heart of the adoption proceeding. Not only did he describe his personal observations, he offered lay opinions on the best interests of the child and the likelihood of reunification. Accordingly, because the guardian ad litem, who had been appointed as an advocate for the child, was called as a witness for one of the opposing parties, new counsel should have been appointed to represent the child. *fn26 The circumstances suggest no substantial hardship to the child; while the guardian ad litem had probably established a relationship with the child, the child was very young and another lawyer could still serve effectively as an advocate for the child in the adoption proceeding. The question remains whether there was a miscarriage of Justice.
Other than the guardian's opinion testimony, his testimony was largely cumulative or undisputed by appellant. Social workers recounted appellant's behavior during visits with the child at the department and appellee great aunt offered evidence about appellant's behavior during visits with the child at appellees' home. The court orders entered in the neglect proceeding, moreover, substantiated the testimony of the guardian ad litem about the mother's refusal to enter into therapy and attend parenting classes. See Part III, infra. Appellant admitted that she had not participated in therapy and parenting classes, and did not deny that the child had made significant progress while living with appellees; rather she claimed she was not mentally ill and that her conduct, which others described as bizarre, was justified under the circumstances as she described them. Nor did she dispute the guardian's testimony about her conduct during the three monitored visits. In addition, the child confirmed for the trial Judge that he viewed appellees as his parents, and his expression about his relationship to appellees partially confirmed the testimony of the guardian ad litem about appellant's conduct during the monitored visits. Moreover, on cross examination, the guardian ad litem admitted that he was uninformed about appellee great uncle's mental condition and had become a "fan" of appellee great aunt, indicating both the limitations of his direct knowledge of relevant facts and his bias.
This also is not the typical case in which one party is seeking, by calling the attorney for the opposing party, to gain a tactical advantage. *fn27 Strictly speaking, the child was not a party in the usual adversarial sense. Furthermore, much of the testimony of the guardian ad litem involved his personal observations, as distinct from conversations with third parties, and he was subject to cross examination. *fn28
What is more difficult to assess is whether the lay opinion testimony of the guardian ad litem on the ultimate issues in the case was enhanced in the eyes of the trial Judge because he had served as advocate for the child for several years and was familiar with what had happened since the child was first brought to the attention of the court. *fn29 The opinions of the guardian ad litem were potentially very prejudicial to appellant, as she contends, precisely because he began representing the child's best interests as an advocate, challenging the government's allegations of neglect and seeking reunification of the child and appellant, and had changed his mind about the child's best interest after witnessing the child's development with appellees and appellant's inappropriate behavior when she was with the child. In describing the monitored visits the guardian ad litem provided devastating insights of appellant and her relationship with the child. The trial Judge specifically found that the testimony of the guardian ad litem with respect to his opinion that the adoption was in the child's best interest was "credible."
However, the findings of the trial Judge make clear that the Judge did not uncritically adopt the lay opinions of the guardian ad litem. While crediting the testimony of the guardian ad litem, the findings of fact and Conclusions of law make clear that the Judge independently evaluated the evidence, weighed the options for the child, and reached his own Conclusion that the adoption was in the child's best interests. See, e.g., In re S.C., 581 A.2d 771, 776 (D.C. 1990) (as trier-of-fact Judge is presumed to separate admissible from inadmissible evidence and to rely only on competent evidence) (citation omitted). The Judge reviewed the evidence presented at the hearing at length in his factual findings. He noted that the guardian's opinion was joined by the adoption social worker, who had interviewed the parties and conducted a home study of appellees that included their physical and mental health and financial background; the Judge found her testimony "forthright, credible and consistent with her written report." In reviewing the statutory factors, see notes 13 & 14, (supra) , the Judge examined the advantages and disadvantages to the child of maintaining the status quo, in order to allow appellant to "overcome her fears, some of which may be justified, and reintegrate herself into [the child's] life." He rejected the status quo option since the record was "devoid of any affirmative progress reports or even small steps in that direction [by appellant] despite [the neglect Judge's] six separate firm orders to . . . that she engage in therapy as a condition to evaluate her ability to regain custody of [the child]." In the Judge's view:
allowing the child to remain in an unsettled status in the unlikely hope that his mother who has resisted mental health intervention for three years would do a turn about . . . is simply an unrealistic notion particularly in view of the lack of any progress in treatment history. To delay making a decision for [the child] now -- in the hope that will improve at some unknown time in the future -- would not be in his best interest since he needs stability now.
He contrasted the status quo option with the child's development and integration into appellees' home and lives, and examined the child's best interests, noting not only his past development with appellees but his present attitude toward them and their ability to provide a "permanent, stable and loving home" now. In sum, the Judge's findings and Conclusions did not emphasize evidence that was only offered by the guardian ad litem, but made an informed, independent judgment based on the entire record regarding the child's best interests. Furthermore, appellant's counsel had the opportunity to object to the guardian ad litem appearing as a witness and did not. We conclude there was not a miscarriage of Justice.
Appellant's second claim of error relates to the taking of judicial notice and reliance by the trial Judge on factual findings and Conclusions of law in the initial neglect proceeding in this case. Appellant objects because the standard of proof in a neglect proceeding is a preponderance of the evidence, while the standard of proof in a termination of parental rights is clear and convincing evidence. As a result, appellant contends that the Judge's Conclusion that adoption was in the child's best interest, based on facts developed at the neglect proceeding, was not supported by clear and convincing evidence. This issue is raised for the first time on appeal.
In general, a Judge may take judicial notice of the contents of court records. See Mannan v. District of Columbia Board of Medicine, 558 A.2d 329, 338 (D.C. 1989) (quoting 21 C. WRIGHT & K. GRAHAM, FEDERAL PRACTICE AND PROCEDURE, § 5106 at 505 (1977)); MCCORM1CK'S HANDBOOK ON THE LAW OF EVIDENCE, (supra) note 29, § 330 at 927. But, as a general rule, courts will not judicially notice records and facts in one proceeding in deciding another proceeding. In re Adoption of K, 417 S.W.2d 702, 704 (Mo. Ct. App. 1967) (in general, party entitled to have merits of case reviewed on evidence lawfully introduced at party's trial) (citations omitted). There are exceptions, id., and in appropriate cases, a Judge may take judicial notice of the contents of court records in a related prior proceeding. See Fletcher v. Evening Star Newspaper Co., 77 U.S. App. D.C. 99, 133 F.2d 395 (1942) (per curiam) (court may take judicial notice of its own records and "of other cases including the same subject matter or questions of a related nature between the same parties"), cert. denied, 319 U.S. 755, 63 S.Ct. 1165, 87 L.Ed.2d 1708 (1943); Washington Mobilization Comm. v. Cullinane, 400 F. Supp. 186, 202 (D.D.C. 1975) (judicial notice of findings of fact and proceedings in other federal cases arising out of same protests and challenging same police activity), rev'd on other grounds, 184 U.S. App. D.C. 214, 566 F.2d 107 (1977); Hipp v. Hipp, 191 F. Supp. 299, 302 (D.D.C. 1960) (in action to partition property, judicial notice of award of alimony and personal property in case in another court between same parties), aff'd 111 U.S. App. D.C. 307, 296 F.2d 429 (1961) (per curiam); see also In re Adoption of K, supra, 417 S.W.2d at 704-05 (on appeal from adoption proceeding, appellate court takes judicial notice of prior appeal to determine if mother's conduct over period constitutes abandonment, even though prior appeal did not involve same parties or same issues).
In the instant case, the neglect proceeding was consolidated with the hearing on the petition for adoption, according to the trial Judge, "so that [appellant's] court appointed counsel in the neglect action appear and represent her in the adoption action." On the date the paries appeared before the trial Judge for the show cause hearting, the Judge advised counsel that he had reviewed "the file" and was "aware of the procedural history of the case and who the petitioners are, the background, the mother's involvement, the guardian ad litem, the visitation, the reports between the guardian to [the Judge in the neglect proceeding] in terms of visitation between the child and the mother." On the second day of the proceedings, counsel for appellees requested that the trial Judge take judicial notice of the order finding neglect entered by the Judge in the neglect proceeding and "all orders in the Court jacket from the initial shelter case order through all of the subsequent review orders that are in the jacket." In response to the trial Judge's inquiry whether there was any objection to his "taking judicial notice of all the appropriate orders of the finding of neglect . . . and the subsequent review orders," appellant's counsel advised that he had no objection. The Judge thereupon stated that he would "take judicial notice of the file of the case to that extent." In addition, prior to closing arguments, the guardian ad litem stated that he would not offer any more evidence in view of the Judge's decision to take judicial notice of the orders and findings of fact and Conclusions of law in the neglect proceeding.
On appeal, appellant contends that the trial Judge went beyond taking judicial notice of orders in the neglect proceeding and also relied on the allegations in the neglect petition and factual findings and Conclusions of law in the neglect proceeding with respect to five matters about which no evidence was offered in the instant consolidated proceeding: (1) that appellant was unable to discharge her parental responsibilities because of her mental illness, (2) that her mental illness had been diagnosed as a paranoid disorder "with the diagnostic impression of paranoid schizophrenia," (3) that she had attempted to remove the child from the hospital against medical advice, (4) that she has auditory hallucinations and persecutory delusions and has threatened to kill the child and others if people tried to take him away from her, and (5) that the "underlying conditions that gave rise to the original diagnosis are either still present or have not abated sufficiently." *fn30
In stating that he would take notice of orders in the neglect case, the trial Judge possibly did not alert counsel to the fact that he also intended to take "judicial notice of certain adjudicative facts" as well as "certain pleadings, orders and findings of fact" in the neglect proceeding. *fn31 Appellant's counsel was on notice, however, before the show cause hearing began, and at no time objected, that the Judge had reviewed "the file" to the extent that he had learned about appellant and had read the guardian's reports to the Judge in the neglect proceeding. While the Judge's reference to "the file" is imprecise, counsel did not ask for clarification, and in view of the consolidation of the neglect and adoption proceedings, counsel should have been aware of the likelihood that the Judge was referring to the consolidated file. Included in the adoption file is a February 23, 1989, report from the Department of Human Services which was filed long before the show cause hearing, and it quoted from the "lengthy" report prepared by a doctor and a social worker appointed in 1986 to assess appellant and her child to determine whether appellant should be allowed to regain custody. The doctor and social worker concluded that appellant, whose "paranoia causes her to sequester herself and [her child]," "is suffering from a serious, progressive emotional disorder with poor prognosis for recovery." Finally, the comments of the guardian ad litem just before concluding his presentation, and the Judge's apparent agreement with them, should have alerted appellant's counsel to the Judge's intention to take judicial notice of the findings of fact and Conclusions of law in the prior proceeding.
The objections to the sufficiency of the trial Judge's findings would have been well taken had counsel alerted the Judge to his objections to reliance on the neglect proceeding. See, e.g., In re K.A., 484 A.2d 992, 995 (D.C. 1984) (clear and convincing evidence required in termination of parental rights proceeding); In re B.K., 429 A.2d 1331, 1333 (D.C. 1981) (preponderance of evidence required to prove child neglect). *fn32 However, the trial Judge's findings suggest that the findings by the Judge in the neglect proceeding were used primarily to confirm that the same problems evident at the adoption show cause hearing had previously been observed. Furthermore, to the extent that appellant relies on appeal on the absence of psychiatric evidence regarding her present mental condition before the trial Judge, the adoption proceeding file included the department's report, which quoted the psychiatric diagnosis presented in the neglect proceeding. The issuance of the show cause order put appellant and her counsel on notice that evidence would be required to counter the prior diagnosis. Since the adoption and neglect proceedings had been consolidated, and appellees requested the trial Judge to take judicial notice of the court orders in the neglect proceeding, counsel for appellant also had to be aware that if the Judge did so, the Judge would be aware of the orders regarding appellant's mental condition and her failures to follow up with therapy. *fn33
Upon reviewing the trial Judge's findings of fact, we are satisfied that the Judge, after reciting the allegations of the neglect petition and summarizing the court orders in the neglect proceeding, by way of background, based virtually all of his findings of fact on the evidence that he heard at the show cause hearing and on the orders in the neglect proceeding to which appellant's counsel interposed no objection. Accordingly, in the absence of objection at trial, we find no miscarriage of Justice.
Finally, appellant's third assignment of error arises from her view, by analogy to civil commitment and First Amendment rights, that due process requires the Judge adopt the "least drastic means" possible for achieving the child's best interests. She maintains that the least drastic means available would have been to allow the child to remain in appellees' custody while continuing to visit with appellant, who would retain her parental rights.
In recognizing the due process rights of the natural parent, the court has, consistent with Supreme Court precedent, held that "natural parents' constitutional rights are relevant only to the question of what process is due in a termination proceeding, and such a proceeding requires no balancing of the parents' interests against those of the child." In re A.B.E., 564 A.2d 751, 755 (D.C. 1989) (citations omitted); see also In re M.M.M., 485 A.2d 180, 184 (D.C. 1984) (same). *fn34 Where the court has referred to the least detrimental alternative, moreover, it was addressing an alternative that was least detrimental to the child, not the natural parent. In re J.S.R., 374 A.2d 860, 863 (D.C. 1977). *fn35
On the other hand, the court has indicated concern regarding premature termination of parental rights and the abyss of perpetual foster care without adoption. See, e.g., In re A.W., 569 A.2d 168, 176 (D.C. 1990) (Rogers, J., Dissenting). These expressions have arisen as a result of interpretations of the District of Columbia statute, however, and not the Constitution. *fn36 Moreover, the considerations underlying those concerns are not present in the instant case since the termination was immediately followed by an adoption. Although the circumstances are similar in some respects to cases where a natural parent has maintained a loving relationship with the child, *fn37 the court has not interpreted the statute or the constitution to require that termination may only be ordered when necessary to free the child for immediate adoption or to avoid the instability of an unending series of foster care placements. See, e.g., id.; In re K.A., supra, 484 A.2d at 996; see also In re C.E.W., supra note 37, 541 A.2d at 627. Rather the court has focused on the absence of evidence that termination would result in any substantial good for the child. In re A.B.E., supra, 564 A.2d at 759. The cases relied on by appellant do not require the Judge to resolve a custody dispute in terms of assuring the fewest possible restrictions on a non-custodial natural parent. *fn38 Even if another trial Judge might possibly have concluded that stability for the child could have been achieved without adoption, there was no violation of appellant's due process rights.
Accordingly, the judgment is affirmed.