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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. is afraid of losing the only parents she has known. The dispositive "real life" issue in this case is whether it would be to L.W.'s detriment if these profound ties were now severed. See Quilloin v. Walcott, 434 U.S. 246, 255,98 S.Ct. 549, 554-55, 54 L.Ed.2d 511 (1978).

So far as the record shows, it was not until June 1989, when L.W. was almost four years of age, that her biological father first requested that L.W. be moved from her adoptive parents' home and placed in his custody. L.W. is now seven years old. She has extensive special needs which many parents of above average resourcefulness would find difficult to accommodate. The biological father loves her, but his capacity to deal with her problems is in serious question.

The father asks us to deny the adoption petition, asserting instead his own right to raise his daughter. To grant his request would mean wrenching L.W. away from the de facto parents who have loved her and successfully cared for her for almost all of her life. She would have to live instead with a psychologically impaired biological father in whose care she was evidently sexually abused, and whose ability to appreciate her special needs is questionable. Although the father is undoubtedly a decent man whose situation evokes one's sympathy, any humane and impartial Judge acting as parens patriae in L.W.'s behalf would surely be loath to take the kind of risk with this child's future which the biological father is asking us to take. *fn10 As Judge Huhn explicitly stated in denying the biological father custody, and as Judge Zeldon essentially found in grounding her decision in part on L.W.'s role in an intact family unit, ties that bind have been formed over the years, and the bonding between the adoptive parents and L.W. continues to grow as time marches on. It would be plainly detrimental to L.W.'s interest, under these circumstances, to remove her from the serenity and security of her home with the parents on whom she has come to depend and to leave her instead in the care of a biological father who ignored her existence during the first twenty months of her life and who thus caused her to forge the ties which he now asks the court to break. *fn11

In In re Hazuka's Adoption, 345 Pa. 432, 435-36,29 A.2d 88, 90 (1942), the court affirmed a contested adoption in language peculiarly apposite to the present case:

When, in pursuance, perhaps, of the abandonment, *fn12 new ties have been formed, and a new station in life has been taken by the child, it might be unjust that, solely because of the parent's caprice, legal sanction should be refused to the new conditions. The Tyrrells have had possession of the child, following the abandonment by its mother, since April 6, 1940, have given it loving care, and have won its affection to such an extent that the court below states that to separate it from them now and to refuse to allow them to adopt it would be ruthless beyond description.

(Citations and internal quotation marks omitted).

B. General Considerations.

In adoption cases, as in other disputes affecting the future of a minor, the decisive consideration is the best interest of the child. In re Petition of J.O.L., 409 A.2d 1073, 1075 (D.C. 1980). The court's inquiry in assessing that interest is fact-specific and practical, not doctrinal, for:

a court, in making a determination as to the best interest of a child, make the determination upon specific evidence relating to that child alone. As one court has aptly noted, magic formulas have no place in decisions designed to salvage human values. Lemay v. Lemay, 109 N.H. 217, 218, 247 A.2d 189, 191 (1968).

Bazemore v. Davis, 394 A.2d 1377, 1383 (D.C. 1978).

Presumptively, a natural parent has a right to the companionship, care and custody of his or her children. See, e.g., Lassiter v. Dep't of Social Servs., 452 U.S. 18, 27101 S.Ct. 2153, 2159-6068 L.Ed.2d 640 (1981). "When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child . . . , his interest in personal contact with his child acquires substantial protection under the Due Process Clause." Lehr, supra, 463 U.S. at 261, 103 S.Ct. at 2993 (citations and internal quotation marks omitted). " child's best interests are presumptively served by being with a parent, providing that the parent is not unfit." S.G., supra, note 6, 581 A.2d at 785. This holds true even where, in a contest between a biological parent and a non-parent, the latter is in more favorable financial circumstances. Bell v. Leonard, 102 U.S. App. D.C. 179, 184, 251 F.2d 890, 895 (1958). *fn13 A stranger is therefore ordinarily precluded from adopting a child over the objection of a biological parent. D.C. Code § 16-304 (a) (1989). In the District of Columbia, however,

the court may grant a petition for adoption without any of the consents specified in this section, when the court finds, after a hearing, that the consent or consents are withheld contrary to the best interest of the child.

Id., § 16304 (e).

This court has held that § 16-304 (e) incorporates into the best interest standard a preference for a fit unwed father who has grasped his constitutionally protected opportunity interest. Baby Boy C., supra, 581 A.2d at 1143. This preference may be overridden if it is shown by clear and convincing evidence that the proposed adoption is in the best interest of the child, id., for that interest is the paramount consideration. In re A.C., 597 A.2d 920, 925 (D.C. 1991); Wells v. Wells, 11 App. D.C. 392, 395 (D.C. 1897). At least where, as here, the child has never lived with the biological father, no finding of parental unfitness is required. In re K.A., 484 A.2d 992, 997-98 & n.2 (D.C. 1984); see also In re P.G., 452 A.2d 1183, 1184-85 (D.C. 1982).

For purposes of proceedings to terminate parental rights, the TPR statute, D.C. Code § 16-2353 (b) (1989), sets out several factors relevant to the best interest of the child. K.A., supra, 484 A.2d at 995. *fn14 An adoption over a biological parent's objection effectively terminates that parent's interest, and we have upheld the application of these standards to contested adoption proceedings. D.R.M., supra, 570 A.2d at 804-05. Judge Zeldon addressed most of these factors in some detail in her written decision in the present case. *fn15 We now consider her findings.

C. The Need for Continuity of Care.

By enumerating the need for continuity of care as a consideration in determining the best interest of a child, the legislature has recognized the importance, to a child, of stability and permanence. See also Quilloin, supra, 434 U.S. at 255, 98 S.Ct. at 554-56. The trial court found in this regard that

[L.W.] is fortunate in having been placed in foster care with petitioners, who are exceptionally qualified to address all of her needs, based on prior experience with other children, including their hyperactive son and their asthmatic older daughter. L.W. is doubly fortunate that petitioners wish to adopt her and provide her with continuity of care.

This finding is amply supported by the testimony of the social workers and expert witnesses.

There is an especially stark contrast between the promise of stability in the adoptive parents' home and the prospect of change and uncertainty if L.W. were placed in the custody of her biological father. Dr. Kenneth Feigenbaum, a clinical psychologist who testified as an expert on the biological father's behalf, acknowledged that the father suffers from significant personality disorders which would make it difficult for him to care for a child with L.W.'s needs. Dr. Feigenbaum expressed his "feeling" that

the disabilities that I see do not disbar him from being an adequate parent given her severe problems, but the hedge is I'd like to try it out.

He suggested in effect that the petition for adoption be denied without prejudice, that L.W. be placed in the biological father's custody, and that the adoptive parents file a new petition if this arrangement did not work out. He so proposed notwithstanding his recognition that "the general rule is the less bouncing around the better." As Judge Zeldon observed in her written decision,

Dr. Feigenbaum's proposal demonstrates that even he questions whether F.W. can provide the continuity of care required for this special needs child. By contrast, Dr. Feigenbaum, who visited the home of the R. family, expressed no doubt about the ability of petitioners to continue to provide L.W. with continuity of care.

We agree with the Judge. Given L.W.'s needs and her father's limitations, we think the kind of experiment contemplated by Dr. Feigenbaum would not only "bounce [L.W.] around," and thus disrupt the continuity of her care, but also generate altogether unacceptable risks to her psychological (and perhaps physical) health and welfare. *fn16

D. The Physical, Mental and Emotional Health of All Involved.

The testimony established, and the trial Judge found, that L.W. is a "special needs" child. She has been hospitalized for asthma as an inpatient twelve to fourteen times and treated as an outpatient approximately twenty-five times. I.Q. testing places her "at the lower end of the borderline range of intelligence, and [L.W.] will require special education throughout her school career." She is also receiving speech therapy and occupational therapy. Caring for her is obviously a challenging task.

The evidence at the hearing established that the adoptive parents are well qualified to provide L.W. with the care and supervision which she needs. According to Dr. Van Ost, neither parent suffers from any personality disorder. They have successfully raised a hyperactive biological son of their own; he is now married and gainfully employed. The trial Judge found that

petitioners are very experienced in caring for children and, after five years with L.W., are comfortable and skilled in caring for her physical, mental, and emotional needs.

We discern no reason to question that finding.

The biological father's mental health is far more problematical. According to his own expert witness, Dr. Feigenbaum, the father suffers from a brain dysfunction, albeit a "minimal" one. His conduct and perception of reality have been erratic. A psychological test which was administered to the father resulted in his classification "as having a combination of a depressive personality disorder and obsessive personality disorder and a schizoid personality disorder, and that's not quite schizophrenia." *fn17 The father's own expert also acknowledged that he found the father "rigid" and inflexible, "Pollyannish," "grandiose," *fn18 and deficient in impulse control.

Dr. Feigenbaum was of the opinion that, in spite of these problems, the biological father could be educated to address L.W.'s needs. He acknowledged, however, that it would not be a "breeze" to teach him these tasks, and that "to be educated about what would be required to treat a need that [L.W.] would have, he would first have to be accepting of the idea that she actually had the need." The trial Judge found that the father was not accepting in this regard:

F.W. may have the ability to be an "adequate" parent to some other child, but he is not a fit parent for this particular child because he denies the existence of her physical and educational limitations. Given his attitude, the Court cannot expect him promptly to recognize an asthma attack by the way she is breathing and take her to the hospital emergency room for care. His denial of her special medical and educational needs, his tendency to procrastinate and think that everything will be all right, and his own need for a consistent daily routine make him inadequate to meet L.W.'s mental, emotional and physical needs. *fn19

E. The Quality of L.W.'s Interaction with her Biological Father and with the Adoptive Parents.

L.W.'s relationship with the adoptive parents has been a splendid one. The trial Judge found that L.W.

calls them "Mommy" and "Daddy," and they treat her as if she were their own child. L.W. has become a de facto member of the R. family, and she does not want to lose them. Additionally, L.W. has a sisterly relationship with petitioners' adopted daughter and grandchild-grandparent relationship with petitioners' parents, whom she visits several times a year at their home in New Hampshire.

Her interaction with her biological father has been more of a "mixed bag." She sometimes called him "daddy" *fn20 and sometimes "Mr. W." Denise Keeling, a DHS social worker assigned to L.W.'s case, described the child's interaction with her biological father as more of an "adult-child relationship" than one of father and daughter.

Judge Zeldon found that L.W.'s relationship with her biological father has generally been good, but she also discerned cause for concern:

Outside . . . F.W.'s presence, L.W. has shown by her conduct that the visits frequently caused her enormous stress. Sometimes she became quite agitated, demanding and pouty after visits with F.W. -- conduct which was not normal for her. L.W. has destroyed the cards, coloring books, and a snow suit and sweat suit given her by F.W. Moreover, L.W. told Dr. Van Ost in July 1991 that she would cry if she saw F.W. Dr. Van Ost said that L.W. is afraid of losing Mr. and Mrs. R. and also is afraid F.W. may hit her. *fn21

F. L.W.'s Opinion of Her Own Best Interest

The trial Judge also made an explicit finding that in L.W.'s opinion, it is in her own best interest to continue to live with Mr. and Mrs. P.R. The Judge based this finding in part on L.W.'s negative conduct, described above, following visits with her biological father, and in part on the testimony of Dr. Van Ost, who concluded that "something about F.W. disturbs L.W." *fn22

G. Other Issues.

Especially in light of the biological father's responsibility for the creation of the ties between L.W. and the adoptive parents, the trial Judge's findings with respect to the TPR criteria are dispositive. The Judge having found by clear and convincing evidence that adoption by Mr. and Mrs. P.R. is in L.W.'s best interest and, at least implicitly, that removing L.W. from their home would be harmful to her, the scope of our review is limited.

The "clearly erroneous" rule applies to Judge Zeldon's factual findings. Baby Boy C., supra, 581 A.2d at 1144 n.1 (Ferren, J. Concurring); see also D.C. Code § 17-305 (a) (1989). "It is the function of the court, not of this court, to determine the best interests of the infant." In re Adoption of a Minor, supra note 6, 79 U.S. App. D.C. at 199, 144 F.2d at 652. The trial Judge has broad discretion, reviewable only for abuse, with respect to the determination whether the best interests of the child warrant authorizing an adoption without a natural parent's consent. D.R.M., supra, 570 A.2d at 803; Barnes v. Paanakker, 72 App. D.C. 39, 41-42, 111 F.2d 193, 195-96 (1940). In the present case, we are satisfied that there is a "firm factual foundation," D.R.M., supra, 570 A.2d at 803-04, for Judge Zeldon's findings as to where L.W.'s best interests lie. See A.C., supra, 597 A.2d at 926. There was no abuse of discretion.

In light of the foregoing, we need not conclusively resolve two issues to which the parties devoted much of their argument both in the trial court and on appeal. The trial Judge having found by clear and convincing evidence that L.W.'s best interests require approval of the adoption, and this court now having sustained that finding, the decision below must be affirmed whether or not the biological father grasped his opportunity interest, *fn23 and whether or not he would be an "unfit" parent. Baby Boy C., supra, 581 A.2d at 1143. *fn24

Nor is a remand required or appropriate in this case. The critical finding of fact -- that it is in the best interest of the child to be placed with the adoptive parents -- has been made by clear and convincing evidence. Assuming that such an unambiguous factual finding can ever depend on the "prism" through which the finder of fact looks at the record, see id. at 1183 (Ferren, J., Concurring), *fn25 we are satisfied in the present case that the trial Judge's "prism" was not distorted. The Judge conscientiously considered the Baby Boy C. decision. Even if a father who failed to visit his child during the first twenty months of her life could be viewed as having demonstrated by his later conduct "a full commitment to the responsibilities of parenthood," Lehr, supra, 463 U.S. at 261, his inattention during those twenty months, which resulted in L.W.'s bonding with Mr. and Mrs. P.R., at least significantly attenuated any parental preference. *fn26 A remand to require the trial Judge to look at the same facts through a "significantly attenuated parental preference" prism instead of through a "no parental preference" prism would, on this record, serve no purpose; the Judge has left no doubt as to where L.W.'s interests lie. Similarly, even if the trial Judge's findings as to the biological father's limitations in rearing a child with L.W.'s special needs could be viewed as insufficient to show that the father is "unfit," the deletion of this pejorative adjective would not remove the father's very real limitations, nor would it ameliorate their actual and potential negative consequences for L.W.'s emotional and physical health.



The record leaves us with no doubt that, as Judge Zeldon and judge Huhn both recognized, we are dealing here with a father who, notwithstanding his past failure to be a parent to L.W., sincerely loves his daughter. The rights of such a father are not to be overridden lightly. As Judge (later Chief Justice) Vinson wrote for the court in a similar case more than half a century ago, "to say that a decision ordering or denying an adoption is fraught with deep and serious social significance is but to state the obvious." Barnes, supra, 72 App. D.C. at 42, Ill F.2d at 196. This father helped to bring L.W. into this world and now wishes to raise her. His is, at least, a claim to which attention must be paid.

We are satisfied, however, that in this case the trial Judge gave thoughtful and conscientious consideration to the interests of all parties, including L.W.'s biological father. Correctly, she accorded controlling weight to the best interest of the child. In her view, that interest weighs heavily in favor of the adoptive parents. Given her findings and the evidence on which they were based, we think she called it right. A contrary Disposition would have placed a child's future happiness unacceptably at risk. *fn27

For the foregoing reasons, the order appealed from is hereby


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