Appeal from the Superior Court of the District of Columbia; (Hon. Joan Zeldon, Trial Judge)
Before: Ferren, Terry, and Wagner, Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: This case comes before the court for the second time. It involves the adoption of a child known in court records as "Baby Boy C.," the son of L.C. (the mother) and H.R. (the father and appellant). Mr. and Mrs. O., with whom custody of the child was placed soon after birth, filed a petition for adoption in the Superior Court. After extended litigation, that court granted the petition, finding by clear and convincing evidence that adoption by the O. family was in the child's best interest. In the father's appeal from that ruling, this court remanded the case to the trial court with directions to apply the statutory "best interest of the child" standard, *fn1 while at the same time recognizing "a preference for a fit unwed father who has grasped his opportunity interest." Appeal of H.R. 581 A.2d 1141, 1143 (D.C. 1990) (hereafter " H.R. I "). Because the original trial Judge had died while the appeal was pending, a second trial was held before a new Judge in October 1991. About three months later, that Judge issued a memorandum opinion and order granting again the petition for adoption. In re Baby Boy C., 120 Daily Wash. L. Rptr. 1309 (D.C. Super. Ct. January 3, 1992).
Once again the father noted an appeal. He now presents, for the second time, a challenge to the constitutionality of the "best interest of the child" standard as applied by the trial court in ruling on the adoption petition, asserting that this standard violates his "substantive due process" rights. Additionally, appellant argues that the trial court's findings of fact are clearly erroneous. We hold that the law of the case doctrine bars us from reconsidering the best interest standard as previously applied in H.R. I. We further hold that the trial court's factual findings are amply supported by the evidence and that its legal Conclusions do not reflect any abuse of discretion. We therefore affirm the final order of adoption.
C. was born on August 5, 1983, in the District of Columbia. *fn2 The child's mother, L.C., met the child's father, H.R., while she was teaching in Zaire as a Peace Corps volunteer. Upon learning that L.C. was pregnant, the Peace Corps immediately arranged for her to be transferred back to Washington. Although L.C. informed H.R. in a letter that she was pregnant and intended to have an abortion, she in fact continued her pregnancy and later gave birth to C. Ten days after C. was born, L.C. relinquished her parental rights to the Barker Foundation ("Barker"), a private adoption agency licensed by the District of Columbia.
At the time L.C. became pregnant and left Zaire, H.R. was seeking a law degree from the University of Kinshasa. *fn3 He received his degree and graduated in June 1983. In August of that year, when he returned to visit the university, he found a letter from Barker waiting for him. The letter, which was postmarked in May, notified appellant that L.C. was pregnant and requested that he complete certain forms and mail them back. *fn4 Appellant immediately wrote a letter to L.C. to ascertain whether in fact she did give birth to a child. L.C. responded with a letter which gave only her telephone number, not her address, and did not mention either the child or the plans for adoption. This exchange of letters was followed by several more, which convinced L.C. that appellant did not understand the concept of adoption (in appellant's words, he believed she was "abandoning the child") and that he wanted her to send the baby to him in Zaire. *fn5
On January 25, 1984, a Superior Court Judge denied Mr. and Mrs. O.'s request for an interlocutory decree of adoption, *fn6 concluding that all reasonable steps had not been taken to give the father (appellant) notice of the court proceedings. After further communications among L.C., Barker, appellant, and the court, another Judge entered an interlocutory decree of adoption on October 15, 1984, in favor of the O. family, to become final on April 15, 1985, unless set aside on a showing of good cause. Between October and April appellant sent Barker two letters. The first said that if Barker was not going to allow him to make decisions about the child's future, he would assume custody, and the second stated that he had retained an attorney and was asking Barker to inform the court that he was not abandoning his child. On the basis of these letters, filed with the court by Barker on March 11, 1985, the court issued an order to show cause why the interlocutory decree should be set aside. *fn7 Appellant moved to set aside the interlocutory decree, and on seven separate dates thereafter, extending from June 1985 to May 1986, the court heard testimony on the adoption petition. The court ultimately granted the adoption petition on September 11, 1986, concluding that appellant had failed to grasp his "opportunity interest," and finding by clear and convincing evidence that the adoption was in the best interest of the child.
On appeal in H.R. I this court issued four separate opinions. In a two-paragraph per curiam opinion, the court "addressed the question whether [appellant H.R.] . . . grasped his 'opportunity interest' in developing a relationship with his child, and, if so, whether the trial Judge applied the correct standard in concluding that [the child's] best interest called for his adoption by the O. family over H.R.'s objection." H.R. I, (supra) , 581 A.2d at 1143. *fn8 The court was unanimous in holding: " that the statutory best interest of the child standard must be applied in determining whether to grant a petition for adoption by unrelated persons,  that the statute incorporates into the best interest standard a preference for a fit unwed father who has grasped his opportunity interest, and  that this preference can be overridden only by a showing by clear and convincing evidence that it is in the best interest of the child to be placed with unrelated persons." Id. *fn9 Because the best interest standard, as applied by the trial court, did not incorporate such a parental preference, a majority of the court concluded that "a remand required to apply the best interest standard as properly formulated." Id. *fn10
Judge Ferren, in a separate opinion, undertook an extensive analysis of four pertinent Supreme Court cases: Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983); Caban v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979); Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978); and Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972). See H.R. I, 581 A.2d at 1159-1165. Having done so, he concluded that, although an unwed father has no substantive statutory right, he has a "substantive, constitutionally protected liberty interest under the fifth amendment -- now commonly called an 'opportunity interest' -- in gaining custody of his child." H.R. I, supra, 581 A.2d at 1152. *fn11 Because the Due Process Clause of the Fifth Amendment protects against improper state action, and because it was state action that interfered with appellant's due process rights and his opportunity to seek custody of C., *fn12 Judge Ferren took the position that the period during which appellant could claim his constitutionally protected opportunity interest had been "tolled" by that interference. Id. Accordingly, Judge Ferren concluded that the Constitution requires that the "best interest" language in the adoption statutes 13 be construed
to mean that, when a natural father who has not abandoned his "opportunity interest" [in this case because of "tolling"] seeks custody of an infant child whom the mother has surrendered for adoption at birth, he shall be entitled . . . to custody if he would be a "fit" parent, unless the adoptive parents persuade the court with clear and convincing evidence that failure to terminate the father's parental rights would he detrimental to the best interests of the child.
Id. at 1173-1174 (footnote omitted); see id. at 1177 (reading statute "to incorporate a parental preference in determining the best interests of the child when an unwed, non-custodial father is fit and has not abandoned his opportunity interest"). *fn14
Chief Judge Rogers, in a Concurring opinion, agreed that appellant had grasped his opportunity interest and that a remand was necessary because the trial Judge had failed to apply the best interest standard of the adoption statute, as it had long been interpreted, "to include a presumption in favor of a fit natural parent over a stranger to the child . . . ." Id. at 1183. Although Chief Judge Rogers did not join in Judge Ferren's view that Lehr v. Robertson created, as a matter of substantive due process, a parental preference, she did conclude that such a preference was "well-established" in District of Columbia case law. Id. at 1185. This interpretation of the statutory standard for adoption, incorporating the parental presumption, was in her view "fully consistent with recognition of the constitutional right of a natural father not to be denied his opportunity interest in seeking custody of his child." Id. (footnote omitted). Additionally, Chief Judge Rogers observed that "nothing in Lehr suggests that the [court's long-standing] statutory interpretation [of the best interest test] is constitutionally defective." Id. at 1187. Moreover, she said, even if there were some implicit substantive due process right protecting a natural father's interest in taking care and custody of his child, nothing in Lehr. . . suggests that the best interest standard is inconsistent with due process or that the natural father's right is preeminent." Id. at 1188 (citations and footnote omitted). Thus Chief Judge Rogers joined Judge Ferren in the Conclusion that in an adoption proceeding, a fit parent is presumed to he entitled to custody of his or her child, although, according to the Chief Judge, "that presumption is rebuttable . . . upon a showing, by clear and convincing evidence, that the best interests of the child require that the child be placed in the custody of . . . stranger(s)." Id. at 1191 (Rogers, C.J., Concurring). Judge Belson, the third member of the panel, Dissented from the remand on two grounds. First, he "disagree fundamentally" with the holding of his colleagues that, as a matter of law, appellant could not be "deemed to have 'abandoned' his so-called 'opportunity interest' in developing a parent-child relationship with . . . C." Id. at 1192. Second, even assuming that appellant had seized his opportunity interest, he would still not be entitled to prevail because of the trial Judge's finding that a transfer of custody to appellant would be "detrimental" to the child's best interest. That finding, in Judge Belson's view, was supported by the evidence and was therefore "unassailable . . . ." Id.
At the trial on remand, the court heard testimony from Mr. and Mrs. O., Dr. Allen E. Marans, Dr. Joseph D. Noshpitz, Dr. Albert J. Solnit, and appellant H.R.
Mr. and Mrs. O. testified (separately) that C. is an intelligent, handsome, likable boy with many friends. He also likes sports and games and appears "quite talented" on the piano. Mr. O., whom C. calls "Daddy," said that C. is an integral part of the family and that he and C. do many things together, such as hiking, drawing, reading, and telling stories. Additionally, Mr. O. described the close relationships that C. has with other members of the O. family, including Mr. and Mrs. O.'s late parents, whom C. came to know before they died. He has memories of these "grandparents" and still talks about them. Mr. O.'s mother, in particular, was a book illustrator and gave C. several books which he treasures. C. is also close to Mr. O.'s brother and Mrs. O.'s brother. Recently, Mrs. O.'s brother had a child, and C. felt quite excited that he was "no longer the youngest member of the family." In addition, according to Mr. O., C. has a very healthy relationship with his brother D., so close that "sometimes it almost seems as though one will express what the other is thinking." In fact, Mr. O. testified, D. once said in C.'s presence, "We won't let them take you away," and expressed a desire to testify against C.'s removal from the O. family. Mr. O. said that when the family moved into a bigger home, D. and C. still wanted to share a bedroom even though they could now have separate rooms. It was also D. who approached Mr. and Mrs. O. on C.'s behalf to express C.'s desire to make contact with H.R. *fn15
Mrs. O. testified that since C. first became a member of the O. household, she has worked at home. Her testimony showed that she, like her husband, has a close and healthy relationship with C. The two of them often play games together and read to each other. Mrs. O. also said that C. is involved in and looks forward to the family ritual of painting the windows for Halloween. All the family members go together on Sunday, say prayers together before going to bed, and travel to their summer home, where C. has made additional friends. The entire family is very sensitive to the racial aspect of their relationship. Both boys are interracial, *fn16 while Mr. and Mrs. O. are both white. They have succeeded in living in neighborhoods that have "varied populations." Many of their family friends have "transracially adopted children," a fact which has not escaped the notice of the two boys, one of whom once said, "Daddy, we don't always have to make friends with people who look like us."
Mr. O. described some of the problems that have resulted from C.'s uncertain status in the family. Since the time he learned that the court (in H.R. I) did not affirm his adoption, C. has been anxious and does not understand why his brother D.'s adoption is final, but his is not. He appears to try "to be on his best behavior" and has "showed a little kind of tic [in his] eye . . . ." The practical problems associated with his adoption status include the inability of the O.'s to secure a birth certificate, social security number, or ...