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In re A.G.

June 1, 2006


Appeals from the Superior Court of the District of Columbia (No. GDN39-01) (Hon. Hiram E. Puig-Lugo, Trial Judge).

The opinion of the court was delivered by: Steadman, Senior Judge

Submitted December 13, 2005

Before GLICKMAN and KRAMER, Associate Judges, and STEADMAN, Senior Judge.

The natural father of A.G., a minor child within the neglect system, appeals the trial court's decision to award "permanent guardianship" to the child's maternal aunt and uncle under the relatively new Foster Children's Guardianship Act, D.C. Code § 16-2381 et seq., which became effective in 2001.*fn1 The Act provides that guardianship decisions shall be based upon "a preponderance of the evidence." D.C. Code § 16-2388(f). The principal issue on appeal addresses whether the due process clause of the Constitution requires the more demanding standard of "clear and convincing evidence." We hold that it does not. We also reject appellant's further arguments, including whether the trial court abused its discretion in failing to obtain first-hand A.G.'s opinion of her own best interests in the matter and in failing to specify the frequency of visitation between appellant and A.G. Accordingly, we affirm the trial court's order.

I. Facts

In 2001, L.G., who is A.G.'s mother, entered a stipulation of neglect. Consequently, the trial court placed A.G., with her maternal aunt and uncle, J.R. and S.R., and initially set the permanency goal as reunification with L.G. At the time, A.G. was eight years old. Following the passage of two years, the court changed A.G.'s permanency goal to permanent guardianship with J.R. and S.R.

In 2004, L.G. consented when the R.s petitioned for guardianship, but A.G.'s father, B.G., opposed the petition. The trial court held a hearing to determine whether it was in A.G.'s best interest to grant the guardianship petition. At the hearing, J.R. and S.R. both testified, as did A.G.'s two social workers. A.G.'s first social worker testified that the R.s are fit and proper caretakers of A.G., and that they "provide a safe and nurturing environment for her." The social worker observed "positive interaction" between the R.s and A.G., and a closeness between A.G. and the R.s' own children. The social worker and appellant had no contact with one another. A.G. had never expressed a desire to live with her father, and indeed, had never even mentioned him. A.G.'s second social worker likewise testified that she had had no contact with appellant, and that the R.s properly cared for A.G. Neither social worker recommended that A.G. be placed with appellant.

The R.s testified that A.G. was a "normal," "helpful," and "very outgoing" girl, and that she got along well with the R.s' own children. While A.G. was in the custody of her aunt and uncle, appellant did not call, provide financial child support, or send birthday cards or gifts to A.G. The R.s testified that if he wanted to, appellant would be welcome to come visit his daughter, so long as he was respectful of their situation.

Appellant did not testify or present any other evidence, and his counsel opposed the petition on the basis of appellant's status as the natural father. The trial judge analyzed the facts under the statutory factors set forth under § 16-2383(d), and concluded, "looking at all of the evidence presented, there is preponderant evidence that it is in A.G.'s best interest that she be placed with Mr. and Mrs. R., that they become her permanent, legal guardians" (emphasis added).

II. "Preponderance of the Evidence" Standard

We face here, as a matter of first impression in this jurisdiction, the argument that § 16-2388(f)*fn2 of the guardianship statute is unconstitutional on its face because it permits the trial judge to grant a petition for permanent guardianship upon a "preponderance of the evidence" standard, rather than the more demanding standard requiring "clear and convincing" evidence.

We must first decide whether we may or should review this issue at all on this appeal. Appellant never objected to the trial court's use of the preponderance standard when it ruled on the guardianship issue. However, before us, appellees have not asserted that appellant waived the argument and that as a result we are to apply, at most, a "plain error" standard of review. The District's brief actually appears to invite plenary decision whether the preponderance standard survives constitutional attack, as applied to these guardianship proceedings. Therefore, the District might well be said to have "waived its waiver argument." In re T.L., 859 A.2d 1087, 1090 n.6 (D.C. 2004) (quoting United States v. Delgado-Garcia, 362 U.S. App. D.C. 512, 515, 374 F.3d 1337, 1340 (2004)). Moreover, this constitutional issue of first impression has been briefed and involves important legal rights. In this posture, we elect to address the issue notwithstanding appellant's failure to raise any objection before the trial court. See id.; In re K.A., 484 A.2d 992, 997 (D.C. 1984) (addressing constitutional attack on termination of parental rights statute, despite that appellants raised it for the first time on appeal).

We turn to the merits of appellant's claim. It is a basic principle that "[p]arents have a due process right 'to make decisions concerning the care, custody, and control of their children.'" In re A.H., 842 A.2d 674, 684 n.14 (D.C. 2004) (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)). "The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753 (1982). In light of these constitutional considerations, to completely terminate parental rights, the government must "support its allegations by at least clear and convincing evidence."*fn3 Id. at 748.

Though we have held that the preponderance standard in the context of neglect proceedings is constitutional, In re N.H., 569 A.2d 1179 (D.C. 1990), neither the Supreme Court nor this court has had occasion to decide whether the clear and convincing standard -- constitutionally mandated for termination of parental rights -- also applies to the recently enacted permanent guardianship status in neglect proceedings.*fn4 However, in examining statutes similar to our guardianship act, both the Colorado Supreme Court and the Washington Court of Appeals have held -- and we agree -- that for statutes terminating only some of a parent's rights to his or child, the preponderance of the evidence standard does not violate the Constitution's due process requirements.*fn5 In re R.W., 10 P.3d 1271, 1276 (Colo. 2000)(en banc); Dependency of F.S., 913 P.2d 844, 846-47 (Wash. Ct. App. 1996), petition for review denied, 925 P.2d 988. Both courts apply the three-prong standard of Mathews v. Eldridge, 424 U.S. 319 (1976) as articulated in the parental rights context in Santosky, supra. These cases require that a court balance (1) the private interests affected by the proceeding; (2) the risk of error created by the jurisdiction's chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. Mathews, supra, ...

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