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03/27/92 M.N.M. M.J.L.

March 27, 1992

IN RE M.N.M., M.J.L., APPELLANT


Appeal from the Superior Court of the District of Columbia; (Hon. Warren R. King, Trial Judge)

Before Schwelb and Farrell, Associate Judges, and Gallagher, Senior Judge. Dissenting opinion by Senior Judge Gallagher.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: In this appeal we face once again a challenge by the putative natural father (appellant) to a final decree of adoption entered even though, as the trial Judge acknowledged, "the natural father was given no notice of the adoption proceedings." The Judge concluded that the putative father's motion to intervene in the adoption proceeding was barred by the one year statute of limitations governing attempts to invalidate a final decree of adoption. D.C. Code § 16-310 (1989). We hold that appellant had a constitutionally protected interest in fair notice of, and opportunity to participate in, the adoption proceedings because he timely grasped his "opportunity interest," Lehr v. Robertson, 463 U.S. 248 (1983), in rearing the child he claims to have fathered. We further hold that he was denied that notice and opportunity, and that -- assuming his paternity is established, a matter which remains in dispute -- these rights must be accorded him before this adoption may become final. We express no opinion on the ultimate issue of whether the adoption entered by the trial court is in the best interests of the child. D.C. Code § 16-309 (b)(3).

I.

Appellant M.J.L. claims to be the biological father of a female child (M.N.M.) born in St. Louis, Missouri on July 30, 1987. *fn1 According to appellant, he and the child's natural mother, L.C.M., had a relationship while both were seniors in high school, resulting in the birth of the child. It appears undisputed that early in June 1987, the mother and her parents met with a social worker employed by St. Louis Catholic Charities, and the mother stated her desire to give up the child she was carrying for adoption. Appellant claims that he and his parents were contacted by St. Louis Catholic Charities and that he asserted he was the father, opposed the adoption, and expressed his desire to raise the child. *fn2 On July 29, 1987, one day before the birth, L.C.M.'s father contacted appellees, Associated Catholic Charities of the Archdiocese of Washington, D.C., Inc. (hereafter the adoption agency), a licensed adoption agency in the District of Columbia, and arranged to put the child up for adoption in the District of Columbia. On August 3, 1987, the child, the mother and her father arrived in the District. The baby was placed in a pre-adoption home on August 4, 1987. On the same day, L.C.M. signed an affidavit stating that although she knew who the natural father was, she did not know his whereabouts and would not identify him.

On August 6, 1987, appellant filed a paternity and custody action in St. Louis County in an attempt to halt any adoption. In the District, the adoption process continued, with the baby being placed in an adoptive home on August 20, 1987. On January 1, 1988, appellant re-filed his paternity and custody action *fn3 this time in St. Louis City, the mother's place of residence. In connection with his lawsuits, appellant deposed L.C.M.'s father on September 17, 1987 and L.C.M. on February 12, 1988, in an attempt to locate the child. Both refused to answer any questions about the child or its whereabouts.

On November 5, 1987, the adoptive parents (also appellees in this appeal) had filed a petition for adoption in the Superior Court of the District of Columbia. In furtherance of this petition, the adoption agency filed its report on February 19, 1988, in which it stated that it had attempted to learn the name of the natural father from L.C.M., but that she refused to provide it. After inquiring into her reasons for the refusal, the agency apparently concluded that they were sufficient and recommended to the court that the adoption go forward. The record does not reveal any effort by the adoption agency, other than questioning L.C.M., to identify or locate appellant, to notify him of the pending adoption proceeding, or to gain his consent to the adoption, although both notice and consent of the natural father are required by statute, D.C. Code §§ 16-304, -306. *fn4 The trial court entered a final adoption decree on April 11, 1988. The record contains no order requiring that notice to appellant be attempted, nor a finding by the court that efforts to notify appellant would be futile. D.C. Code § 16-304 (d).

In St. Louis, appellant proceeded with his suit before Judge Robert G. Dowd, Jr. On September 23, 1988, a hearing was held before a special master in the presence of appellant, the mother, and her father. The special master found that L.C.M. and her father still refused to provide information about the location of the baby, and concluded that the suit could not be settled and should proceed to trial. In late October 1988, the office of the St. Louis County Attorney informed appellant that it was aware of adoption proceedings concerning the child in the District of Columbia, but furnished him no specific information about the proceeding such as the court or docket number. On November 14, 1988, Judge Dowd entered an order instructing the County Attorney to give appellant any information he had about the child.

Shortly after January 6, 1989, the majority of the Superior Court Judges, including the trial Judge presiding over the adoption of M.N.M., received a letter signed by appellant stating he had learned from Judge Dowd that, according to the St. Louis County Attorney, the child M.N.M. "has been put up for adoption in the Washington, D.C. area through the Catholic Charities Organization." The letter pointed out that appellant's paternity case would be heard by Judge Dowd in early 1989, and continued:

Right now I am very concerned about the adoption being finalized and the associated waiting period expiring before my case can be heard. I need someone in the Washington D.C. Superior Court to be aware of the truth in this situation so that a fair decision can be made. Catholic Charities of Washington D.C. -- fearing liability -- wants a court order to open any records or even to acknowledge their role in the adoption process. I cannot file a petition to prevent/set aside the adoption because I don't know in which court the adoption is taking place.

I realize that there are numerous regulations preventing the release of records in adoption cases, so I am not asking you to do that. However, I am asking that if this case is or was before you in Washington D.C. Superior Court to please contact one of the following [listed persons] so I may have my day in court.

On January 12, 1989, a Family Division Judge in receipt of appellant's letter responded by stating that "appropriate notices will be given if the adoption matter to which refers is currently pending in this court." A second trial court Judge informed appellant that, unless he furnished a designated docket number, no search through Superior Court records could be accomplished. On January 18, 1989, Judge Mencher, then Presiding Judge of the Family Division of Superior Court, wrote Judge Dowd in St. Louis requesting information -- including pleadings and transcripts -- about the case assertedly pending before him involving appellant. Judge Dowd apparently shared the letter with appellant or his St. Louis counsel, because on February 5, 1989, appellant wrote Judge Mencher and enclosed the pleadings and depositions from the St. Louis lawsuit. Judge Dowd also responded to Judge Mencher on February 16, 1989, stating that he expected appellant to file suit in the District of Columbia. The one year statute of limitations governing attacks on final adoption decrees expired April 11, 1989.

On April 17, 1989, appellant wrote to Judge Mencher asking whether he should file pleadings in the District of Columbia and requesting the court and docket number for the adoption proceeding. On April 18, Judge Mencher informed appellant of the trial Judge before whom the adoption case was pending; a letter sent to appellant by the Chief Deputy Clerk of the Family Division on May 12, 1989, provided the docket number of the case. On June 5, 1989, appellant filed a pro se motion to intervene in the adoption proceeding, alleging fraud, lack of notice, and constitutional violations. This filing came one month and twenty four days after the statute of limitations had expired.

The trial Judge ordered responses on June 13, 1989. On November 8 he asked the Office of Corporation Counsel to file an amicus brief, which was filed on January 24, 1990. On April 20, 1990, Judge Dowd wrote to the trial Judge enclosing an order for blood tests to determine paternity which had been entered in the St. Louis suit on February 5, requesting that the order be given full faith and credit. A guardian ad litem was appointed for the child on June 27, 1990.

II.

In a memorandum opinion filed on October 1, 1990, the trial Judge denied appellant's motion to intervene and declined to give full faith and credit to Judge Dowd's order for blood tests. The Judge addressed only the fact that the statute of limitations for attacking a final adoption decree had expired. *fn5 He also denied appellant relief under Rule 60 (b) of the Superior Court Rules of Civil Procedure, stating that because Rule 60 applied only to parties and appellant was being denied party status, Rule 60 was not available as a way around the statute of limitations.

The Judge reasoned that although Judges of the Superior Court were "aware" of appellant's claims as early as January 1989, appellant had failed to "regularly file" anything, as required by the statute, until after the one-year limitation period had run. The Judge stated:

The sanctity of the adoption process can be preserved only by requiring strict adherence to procedural rules. See 16 D.C. Code Section 309-311; In re Wells, 281 F.2d 68 108 U.S.App. D.C. 235 (D.C. 1960). Until petitioner formally filed his Motion to Intervene, the Court could not know that he intended to actively pursue intervention in the adoption matter. The formal declaration of intention, however, came too late even though his counsel had much earlier indicated to Judge Dowd that he would be filing the necessary pleadings.

The Judge found that appellant and his St. Louis attorney had been informed by Judge Dowd in early December that the child had recently been adopted in the District of Columbia; and that on January 23, 1989, appellant's attorney told Judge Dowd of his intent to file a motion to set aside the adoption in the District. Yet the motion had not been filed until more than four months later. Appellant's correspondence with the Superior Court Judges in early January, the Judge found, "was not 'regularly filed' as required by the statute; it was simply a request for information." The Judge therefore denied the motion to intervene, denied full faith and credit to Judge Dowd's order directing appellant and the child to undergo blood testing, and rescinded his own previous order which had "indicat an inclination" to have such testing conducted.

III ...


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