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08/04/92 MATTER L.W. F.W.

August 4, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Joan Zeldon, Trial Judge)

Before Schwelb and King, Associate Judges, and Mack, Senior Judge.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: F.W., the biological father of L.W., a girl now seven years of age, appeals from an order of the trial court granting the petition of Mr. and Mrs. P.R., L.W.'s former foster parents, *fn1 to adopt her over his objection. Following an evidentiary hearing, Judge Joan Zeldon issued a comprehensive written decision in which, among other things, she found by clear and convincing evidence that the proposed adoption would be in L.W.'s best interest. Contending that the trial Judge failed to accord adequate consideration to his status as a natural parent and to his efforts to establish a relationship with L.W., the biological father asks us to vacate the order granting the petition to adopt. Although our emphasis is in some respects different from the trial court's, we affirm.



L.W. was born on July 23, 1985. Her biological mother suffered from diabetes and from serious psychological disorders. *fn2 The biological father is afflicted with delusions and other personality disorders which make it difficult for him to control his impulses. As a child of a diabetic pregnancy, L.W. was at high risk for cognitive difficulties. As "a direct result probably of the insults to the brain that occurred at birth," L.W. is of borderline mental capacity. She also suffers from an asthmatic condition which has required frequent hospitalizations and constant attention.

The beginning of L.W.'s life was not auspicious. Her mother, evidently preoccupied with her own problems, left the hospital without taking L.W. home with her. *fn3 Her father, who was then living with the mother, had no contact at all with L.W. during the first twenty months of her life. In fact, the father testified in the trial court that his association with his daughter while the child's mother was alive was as follows:

When her mother go visit her, and she did go visit her, I would ask what she's doing. *fn4

The father provided no financial support for the child, nor was he asked to do so.

After leaving L.W. in the hospital, the biological mother continued to be uncooperative, and a neglect proceeding was duly instituted in the Superior Court. L.W. was placed in foster care, and she was eventually committed to the custody of the Department of Human Services (DHS). On April 28, 1986, after having lived for several months with another family, L.W. was moved to the home of Mr. and Mrs. P.R., who became her foster parents and whose subsequent adoption of her is the subject of this appeal. The P.R.'s, who have also opened their home to more than thirty other foster children, had no intention at that time of adopting L.W. Nevertheless, L.W., who was nine months old when she came to live with the adoptive parents, has been with them ever since -- a period of more than six years.

In January 1986, L.W.'s biological mother died at the age of thirty. While arrangements were being made for the funeral, the deceased woman's father told L.W.'s biological father the name of L.W.'s social worker. The biological father contacted the social worker, and a visitation program was promptly inaugurated. The biological father's mother (L.W.'s paternal grandmother) and his new paramour, C.C. -- a woman with a young teen-aged son, K.C. -- also played roles in this visitation, as the biological father lived with each of them at different times.

The testimony at the hearing revealed that although the biological father visited L.W. regularly, and although he and L.W. developed some affection for one another, the visitation program encountered significant problems. There was evidence that in October 1988, during a visit to the home of the biological father's girlfriend, the girlfriend's young son sexually abused L.W., who was then three and a half years old, causing a tear in her vagina. Following this incident, L.W. began to stab dolls between the legs with pencils, and attempted to urinate standing up, like a boy. She also became nervous in the presence of her biological father and destroyed or cut up some of the presents which he had given her. *fn5 Home visits were terminated after the discovery of the abuse, but the biological father continued to visit L.W. at the social worker's office. There was testimony that other problems arose during the visitation because the biological father and paternal grandmother allegedly failed to give L.W. her medicine or to appreciate the seriousness of her medical problems and the acuteness of her needs.

Some time after the apparent sexual abuse of L.W. came to light, counsel for L.W. filed a petition to terminate the biological father's parental rights (TPR petition). *fn6 The petition came before the court well before the present adoptive parents had decided to adopt L.W., and no immediate adoption was then in prospect. See In re A.B.E., 564 A.2d 751 (D.C. 1989); cf. In re A.W., 569 A.2d 168 (D.C. 1990). On May 22, 1989, the TPR petition was denied by Judge Margaret Haywood. The Judge ruled that although the biological father had used poor judgment on some occasions, his relationship with his daughter had improved, and his mental condition did not disqualify him from eventually becoming a parent to his daughter. *fn7 Judge Haywood concluded that counsel for the child had not shown by clear and convincing evidence that the father's parental rights should be terminated. L.W.'s attorney moved for reconsideration and, on July 7, 1989, Judge Haywood denied that motion in a written order.

On June 7, 1989, at a review hearing before Judge Nan R. Huhn, the biological father, having prevailed two weeks earlier over the effort to terminate his parental rights, requested the court to vacate L.W.'s commitment and to award him custody of L.W. After granting the biological father several continuances, Judge Huhn held an evidentiary hearing. On November 6, 1990, the Judge denied the motion in a lengthy oral decision which has been made a part of the record on appeal in this case. *fn8 Judge Kuhn found, among other things, that there had been "an enormous amount of bonding" between L.W. and Mr. and Mrs. P.R., and that

it would be extremely detrimental to [L.W.] to be removed from the [P.R.s'] home. And although, as I said earlier, this decision is always subject to review, I must say that absent some change in the [P.R.s'] relationship with [L.W.], it will probably only strengthen and become more detrimental in the future to remove her as the bonding will only get deeper.

The Judge further found that L.W. has severe problems and "needs all the things in a parent that I'm afraid [the biological father] is not." She explained that the child is "safe" with the adoptive parents, while the biological father suffers from brain dysfunctions and poor impulse control which have led him to be "Pollyannish" and insensitive both to the sexual abuse incident and to his daughter's asthmatic condition and learning problems. Judge Kuhn was of the opinion that "to remove this child to an unstable, nonsupportive and below average intellectual environment would be totally adverse to her best interest and destructive to her physical and emotional feeling." *fn9

On June 1, 1990, while the biological father's motion for custody was pending, the adoptive parents filed their petition to adopt L.W. Explaining this change in their plans, the adoptive mother testified that she and her husband had not originally intended to adopt L.W., but that they "fell deeper in love" with the child, and that the love "just grew and grew and grew and grew," until they "decided to make her a permanent part of our family if it was possible." On October 2, 1990, DHS filed a Report and Recommendation in which the agency urged that the petition be granted. The biological father declined to consent to the proposed adoption, and an evidentiary hearing was held before Judge Zeldon. The Judge found that the biological father had failed to grasp his constitutionally protected "opportunity interest" to parent L.W., see Lehr v. Robertson, 463 U.S. 248,103 S.Ct. 2985,77 L.Ed.2d 614 (1983); In re Baby Boy C., 581 A.2d 1141 (D.C. 1990) (per curiam), and that he was not psychologically equipped to care for a child with L.W.'s special needs. The Judge further found, by clear and convincing evidence, that the adoption was in L.W.'s best interest, and she granted the petition of Mr. and Mrs. P.R. to adopt L.W. A final decree of adoption was issued on August 14, 1991. This expedited appeal followed.



A. An Overview.

One pre-eminently significant fact in this case accounts for everything that has happened to L.W., and decisively affects each issue and sub-issue which has been presented to us by the parties. As a direct result of the failure of L.W.'s biological mother and father to take her home from the hospital or to assume any parental or other responsibility for her, L.W. was placed in the prospective adoptive parents' home before she was a year old. She has remained there for more than six years. Predictably, she has formed the closest possible emotional ties with the P.R. family and has become a member of it. Dr. Susan Van Ost, a psychologist who testified as an expert for the adoptive parents, stated that "there is clearly an attachment to the [R.'s]" and that "there is fear and sadness about the possibility of losing them." In the words of Judge Huhn, L.W. "has found her parents and it is [Mr. and Mrs. R.]." Judge Zeldon reached essentially the same Conclusion, noting that "petitioners and L.W. are part of a pre-existing unit -- namely, the [R.] family," and that L.W. ...

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