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10/10/91 A.C. R.R.

October 10, 1991

IN RE A.C., R.R., APPELLANT


Appeal from the Superior Court of the District of Columbia, Family Division; Hon. Zinora Mitchell-Rankin, Trial Judge.

Farrell and Wagner, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Wagner

Appellant, R.R., the father of A.C., challenges an order of the trial court terminating his parental rights under the provisions of D.C. Code § 16-2353 (1989). The child's mother, P.C., whose parental rights were terminated in the same proceeding, did not appeal. R.R. argues that his due process rights were violated by the failure of the District of Columbia Department of Human Services (DHS), the social service agency which had court ordered custody of the child, to make reasonable efforts to reunite him with his child and that the trial court erred by failing to apply a presumption in favor of a fit, natural parent. Appellee, the minor child, contends that the trial court's order is supported by clear and convincing evidence and that appellant was not entitled to a parental preference, having failed to grasp his "opportunity interest." Appellee also argues that reunification efforts by DHS are not a required element of proof under applicable law; nevertheless, DHS made reasonable efforts at reunification, but appellant failed to display any significant interest in the child. We hold that the efforts of a public custodial agency to reunify the family are a relevant factor in the decision-making process in a proceeding to terminate parental rights, but that the agency's defaults in that regard do not preclude termination, if in the child's best interest. Finding no error in the decision to terminate R.R.'s parental rights, we affirm.

I.

A.C. was born on August 10, 1985. When he was only two months old, A.C.'s natural father, R.R., voluntarily placed him in emergency care with DHS after the child's mother could not be located. The parents were never married to each other. Initially, DHS placed A.C. at St. Ann's Infant Home, and later, in an interim foster care placement. In July 1986, A.C. was placed in foster care with the family with whom he remained continuously until the termination hearing in November 1990. The child has bonded with his foster mother. With the exception of one visit during A.C.'s brief hospitalization in October 1985, R.R. has not visited nor otherwise contacted the child. An order providing R.R. reasonable visitation rights was entered on June 23, 1988. Thereafter, DHS workers attempted to locate R.R. without success. Finally, R.R. requested and arranged for a visit with A.C. in February 1989, but he failed to keep the appointment.

In February 1989, the child's mother, P.C., entered a stipulation in the neglect proceeding acknowledging that she had neglected A.C. by leaving him alone or with unwilling caretakers. She also admitted her inability to care for the child because of her incarceration and emotional problems, among other reasons. R.R., then a party to the proceeding, did not sign the stipulation; therefore, the trial date for R.R.'s case was reset, along with the Dispositional hearing in P.C.'s case for May 9, 1989. *fn1 DHS workers could not locate R.R. again until he appeared for the hearing. At that time, R.R. informed a social worker that he was unable to care for A.C. because he was unemployed. The trial court entered an order committing A.C. to the custody of DHS. The neglect case was later dismissed as to R.R. at his attorney's request. *fn2

On February 23, 1990, the attorney and guardian ad litem for the child filed a motion to terminate parental rights. While incarcerated at Lorton, Virginia, R.R. was personally served with a summons and order to appear for the hearing on the motion. R.R. was brought to court from Lorton for the hearing on August 20, 1990, but the case was postponed until November 5, 1990 to secure proper service on A.C.'s mother. In spite of having been personally served and notified of the continued date at the August proceeding, R.R., who had been released from jail by this time, did not appear for the hearing on the motion to terminate parental rights in November. R.R.'s counsel was present at the hearing which resulted in an order terminating R.R.'s parental rights on November 15, 1990. R.R.'s attorney filed a timely notice of appeal on his behalf.

At the hearing on the motion, the family social worker testified that she did not attempt to enter into a case plan *fn3 with R.R. because he had said that he was unemployed and unable to care for A.C. Further, R.R. had been difficult for DNS to locate. The family social worker contacted shelters, hospitals, jails and the morgue in an effort to find him. When R.R. appeared at the neglect hearing, he was given information through which he could contact the agency and maintain contact with the child. R.R. provided DHS with only his mother's address. After R.R. failed to make the scheduled visit he had requested with the child in February 1989, neither the social worker nor R.R. initiated any further contact.

An expert witness on adoptions testified, and the trial Judge found as fact, that if parental rights were terminated, A.C. would be readily adoptable because of his tender age and lack of physical, emotional or behavioral problems. As of the date of the termination order, an adoptive family had been approved for A.C., and a backup adoptive family had been identified.

II.

Appellant argues that his due process rights were violated by DHS's failure to make reasonable efforts to reunite him with his son. The argument is unpersuasive. The protections afforded by the Due Process Clause of the Fourteenth Amendment to natural parents to direct the upbringing of their children are well established. In re A.B.E., 564 A.2d 751, 754-55 (D.C. 1989) (citations omitted). Such rights are not absolute, and they must yield to the child's best interest in a proceeding to terminate parental rights. Id. at 754. In such proceedings, the "parents' constitutional rights are relevant only to the question of what process is due." Id.

As desirable as it might be, appellant's due process rights do not include as a condition precedent to termination of parental rights that the state agency having custody of a minor child make affirmative efforts to reunite the family. The statute in this jurisdiction which governs proceedings to terminate the parental rights of neglected children, D.C. Code § 16-2351 et seq. (1989), contains no express requirement that the agency having custody of a neglected child demonstrate that it has made reasonable efforts to reunite parent and child before the government or a guardian, acting on behalf of the child, can institute termination proceedings nor before the court can decide such cases.

In support of his argument that his due process rights were violated by the failure of DHS to make reasonable efforts to reunite him with his child, appellant relies on cases from states which have statutes requiring proof that the agency having care of the child has made reasonable efforts to strengthen and encourage the family relationship before the petition to terminate can be filed or granted. See In re Lori D., 510 A.2d 421, 424 (R.I. 1986) (order dismissing petition reversed where record replete with efforts of state agency to reunite family as required by law); *fn4 see also Weaver v. Roanoke Dep't of Human Resources, 220 Va. 921, , 265 S.E.2d 692, 696-97 (1980) (termination order reversed because of lack of evidence indicating reasonable efforts taken by social agencies to remedy conditions leading to foster care). *fn5 In the absence of similar statutes expressly requiring that rehabilitative efforts be offered by state agencies, courts have refused to impose such requirements as a condition precedent to filing a termination proceeding. See In re I.R.A., 487 Pa. 563, 410 A.2d 755, 757 (1980). In Maine, in spite of a statutory provision placing upon the state agency an obligation to facilitate reunification of children in its custody with their parents, the court held that the failure of the agency to fulfill that responsibility would not preclude termination of parental rights absent an express requirement of such proof. In re Daniel C., 480 A.2d 766, 770 (Me. 1984).

The controlling statute in this jurisdiction contains no requirement that DHS make affirmative efforts to reunite the family. See D.C. Code § 16-2351 et seq. That is not to suggest that the custodial governmental agency has no obligation in that regard. The statute under which A.C. was adjudicated neglected contains numerous provisions focusing on the roles of the court and public agencies in the reunification process. Following an adjudication of neglect, a preDisposition study and report must be prepared which addresses the harms which led to intervention, plans for alleviating them, recommended services and service providers, actions required by the parents to remedy problems, estimated time necessary to reach goals of intervention, and the criteria for determining that continued intervention is no longer necessary. D.C. Code § 16-2319(c)(1). If the child is removed from the care of a parent, guardian or custodian, the report must contain plans for maintaining contact between parent and child and for fostering that relationship, consistent with the child's well-being. D.C. Code § 16-2319(2)(D). The court must consider the plan contained in the report in making its Dispositional order. D.C. Code § 16-2320(f); See In re M.C.S., 555 A.2d 463 (D.C. 1989); see also In re C.W.M., 407 A.2d 617, 623-24 (D.C. 1979). ...


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