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04/06/93 T.W. APPEAL A.W.

April 6, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Robert S. Trignor, Trial Judge)

Before Farrell and Sullivan, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge : This is an appeal from a decision of the trial court terminating a parent and child relationship pursuant to D.C. Code § 16-2359 (f) (1989). "The legal touchstone in any proceeding to terminate parental rights is the best interest of the child, and that interest is controlling." In re A.B.E., 564 A.2d 751, 754 (D.C. 1989); D.C. Code § 16-2353 (a). This court "may reverse a trial court's determination of where the best interests of the child lie only when the Judge has abused his discretion." In re D.R.M., 570 A.2d 796, 803 (D.C. 1990). Before ordering termination of the parent-child relationship between appellant (the mother) and the child T.W., the trial Judge made written findings of fact and Conclusions of law, which we append hereto. *fn1 Appellant mounts no significant challenge to the trial court's findings of fact, including the fact that the mother has no realistic expectation of being able to provide in the foreseeable future the care and security [the child] needs now," and that the child currently resides in a potential adoptive home where she "may now be provided experienced intelligent parental guidance, the love and the support of a readily available extended family[,] and the sense of security and stability that adoption would likely provide" (emphasis by the trial Judge). As Judge Tignor's findings of fact pertinent to the best interests of the child are supported by a "firm factual foundation" in the record, id. at 803-04, we sustain them.

Appellant raises three points on appeal, only one of which calls for extended Discussion. *fn2 She contends that the trial Judge " essentially" refused to hear testimony from the then twelve-year-old child regarding "the child's opinion of . . . her own best interests in the matter," D.C. Code § 16-2353 (b)(4), even though the statute provides that the Judge "shall consider" this opinion as a factor in determining whether termination of the parental relationship is in the child's best interest. Section 16-2353 (b). Appellant is careful to qualify her contention ("essentially") because she concedes that the Judge did not bar testimony by the child altogether; quite the contrary, as we shall point out later. What is apparent from the record, though, is the Judge's unwillingness to let the child be questioned by counsel or the court (in chambers) about "whether she wants to be adopted or not." The Judge explained that in his view "that type of questioning could have a very detrimental effect on this child if she's put in a position where she feels that she has to choose between adoption *fn3 and a mother that I think there's no question that she loves and cares for a lot." Questions such as "how do you feel about adoption[,] do you want to be adopted," or "how would you feel about being permanently separated from your mother" would, the Judge was convinced, leave the child with the impression "that what she has said has determined what the decision is," which was "just too much [of a burden] to place on a child." In short, the Judge considered it "inappropriate" for the child to be asked questions whose effect would be to have her "make a decision between her mother and some adoptive family." Appellant argues that, in the face of her counsel's contrary request, the Judge lacked any discretion to impose this limitation on questioning about the child's preference in the absence of expert psychological testimony about the harmful effect such questioning likely would have on this particular child.

We do not read the statute in the categorical fashion appellant advocates. See In re Baby Girl D.S., 600 A.2d 71, 83 (D.C. 1991) ("trial court has considerable discretion in applying the statutory factors"). D.C. Code § 16-2353 (b)(4) requires the Judge, in deciding whether the best interests of the child demand termination, to consider "to the extent feasible, the child's opinion of his or her own best interests in the matter." The statute does not say the Judge must derive this opinion even partly from questioning of the child herself when "feasible," i.e., when the child is old enough (and otherwise competent) to voice such an opinion. Indeed, common sense suggests that in many cases the most probative evidence of the child's opinion may lie in statements the child has made to others such as psychologists or in the child's past behavior, rather than in testimony given in the formal surroundings of a court proceeding. Our prior decisions contain no suggestion that the statute makes indispensable the child's direct testimony about her opinion on whether the parental bond should be severed. E.g., In re L.W., 613 A.2d 350, 359 (D.C. 1992) (implicitly sustaining trial court's finding as to child's opinion of her own best interest based on child's conduct following visits with natural father and child's interview with psychologist).

On the other hand, appellant rightly calls our attention to suggestions in the Judge's reasoning that, while legitimately concerned with the impression the child might retain of having been forced to choose between parents, he deprecated the value of testimony by the child concerning her preference. *fn4 In an area where behavioral generalizations are risky even for experts, a court should not dismiss outright the value of a twelve-year-old's opinion of where her best interests lie *fn5 nor too quickly assume that the only outcome from directly involving the child in that inquiry will be harmful. *fn6 At least part of the concern a Judge may have about a child's being asked to "take sides" can be alleviated by a non-adversarial inquiry in camera, without necessarily shrinking from questions about the child's preference. Particularly in a case where the child's prior conduct and statements point in more than one direction, her answers to the court about what Disposition she thinks best for her may provide key information relevant to this statutory factor.

Nevertheless, we are far from concluding that the trial Judge abused his discretion in handling the matter of the child's testimony, or in terminating the parental relationship. First, the Judge did not bar all testimony by T.W.; rather, while unwilling to let her be asked questions such as "would you rather stay with the family you're with or would you rather be with your mother," he explained:

You can ask her, how did you like your visit with your mother; how do you feel about your mother, how do you feel about Ms. Corbett [the foster care provider]; how do you feel about the people you are with. And just have her as objectively as possible describe how she feels about these things . . . .

Appellant's counsel did not call the child to the stand even for this purpose. *fn7 Second, despite some broad language in his reasoning, note 4, (supra) , the Judge did not hold the view that testimony by a child about his or her ultimate preference should never be elicited; as he repeatedly stated, his concern was with T.W., "a child in every sense of the term," about whom he had heard evidence of "conflicts" and anxiety and who he "particularly" believed could be harmed by the sense of having had to make the final choice herself. Third, the Judge had ample testimony before him of the child's desire for adoption and ambivalence about reunification with her mother. *fn8 And finally, "the child's opinion" is only one of the four factors the Judge must consider in deciding whether termination is in the child's best interest. Judge Tignor made findings relevant to the other factors as well, and -- to the extent appellant even challenges them -- the record firmly supports those findings. In re D.R.M., 570 A.2d at 803-04.

Accordingly, the order terminating the parent and child relationship is




IN THE ...

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