Appeals from the Superior Court of the District of Columbia (ADA179-09, NEG65-08 & TPR65-08) (Hon. John McCabe, Magistrate Judge) (Hon. Carol A. Dalton, Reviewing Judge)
The opinion of the court was delivered by: Ferren, Senior Judge:
Before GLICKMAN and OBERLY, Associate Judges, and FERREN, Senior Judge.
Opinion for the court by Senior Judge FERREN.
Concurring opinion by Associate Judge GLICKMAN, joined by Associate Judge OBERLY, at p. 27.
Opinion concurring in the result by Senior Judge FERREN, at p. 30.
This case presents the challenge by an unwed, non-custodial father -- who was unaware of his child at birth -- to the adoption of his child by her foster parent with the consent of the natural mother. After finding that clear and convincing evidence supported a court-ordered waiver of the father's required consent in the child's best interest, the trial court ordered the waiver and granted the adoption. Perceiving no abuse of the court's discretion, we affirm.*fn1
I. Statement of Facts and Proceedings
Beginning in the winter of 2006 -- 2007, E.P. had a sexual relationship with K.H. The relationship ended after seven or eight months because E.P. disapproved of K.H.'s drinking habits. Not long thereafter, on October 6, 2007, K.H. gave birth to A.H.
For the first three months of her life, A.H. lived with her mother in
homeless shelters. On January 28, 2008, the District's Child and
Family Services Agency (CFSA) removed A.H. from her mother's care. On
January 31, CFSA filed a petition for neglect, and A.H. was committed
forthwith to the agency for placement in foster care.*fn2
On March 28, a magistrate judge granted the government's
motion for constructive service of process on the unknown father, and
a notice was posted on March 31 in the Juvenile and Neglect Clerk's
Office for a period of two weeks stating "that a neglect proceeding
has been scheduled" for A.H. "born to [K.H.] on October 6, 2007." The
notice ordered the unknown father to appear at the next scheduled
hearing, with date and time provided, adding that he had a right to
seek custody of the minor child, that he had a court-appointed
attorney, and that failure to respond to the notice could result in
the court proceeding without the father being present.
Five weeks later, on May 7, K.H. stipulated before the magistrate judge that her daughter, then seven months old, was a neglected child, and the judge entered an order to that effect. K.H. also submitted an affidavit of paternity that identified the father as either a man named E. or a man named N. She was unable to provide last names or any other identifying information, but she said that she could point out addresses where these men could be found.
District of Columbia law requires a hearing, within one year after a child's entry into foster care, to determine a plan for the child's permanent custody.*fn3 Accordingly, on May 21, 2008, the magistrate judge confirmed that the permanency goal was reunification of A.H. with her mother, K.H., and ordered the provision of appropriate social services to facilitate that goal. Three months later, on September 3, the magistrate judge reiterated that the permanency goal was reunification but recognized that the case was likely to move toward guardianship or adoption. Were that to happen, the natural father would have to either claim or waive his right to custody;*fn4 thus, the judge asked the parties to launch an effort to locate A.H.'s father. Thereafter, social workers were often unable to reach K.H., who also missed two appointments with the investigator assigned to locate the father. A court-appointed counsel for the unknown father also hired an investigator, who was unsuccessful in finding the father.
At a hearing on December 8, 2008, the magistrate judge ordered the permanency goal changed from reunification to adoption, and on January 16, 2009, a motion was filed*fn5 to terminate the parental rights of both K.H. and the child's father. Sometime in January, if not earlier, the petitioner, C.L.O., expressed an interest in adopting A.H., who was moved, as a result, from her first foster home to C.L.O.'s care on January 25. The child was a little over one year old. C.L.O. brought A.H. to medical and dental appointments, as well as to developmental, language, and speech assessments. Over the course of a year, social workers expressed satisfaction at several status hearings that, under C.L.O.'s care, A.H. was thriving and on target developmentally.
C.L.O. filed a petition for adoption on October 19, 2009,*fn6
when A.H. had just turned two years old. K.H. received a
notice of the petition within a few days, and efforts were made to
serve notice on a man named E.T. (not E.P.) and another named N.
Meanwhile, as he acknowledged later at trial, E.P. had learned from
his cousin some two months earlier, in August 2009, that "K. had the
baby and that K. wanted [E.P.] to come and get the baby." E.P. further
testified that he then knew "it might have been a possibility" that
the baby was his child, and that he decided to seek out K.H. to "see
what the problem was since she said [to his cousin] she couldn't
handle . . . having the baby." Not knowing where to find K.H., E.P.
initially relied on his cousin to contact her. He waited two weeks for
his cousin to report back; he heard nothing from her. E.P. then went
with his cousin to K.H.'s grandmother's house.*fn7 He
learned from K.H.'s family that she had left the house with her baby,
implying that she would return. E.P. returned to the grandmother's house three
or four more times over the next "month or less," without finding K.H.
or the baby there. He made no further effort to find mother or
At the next hearing on January 26, 2010, K.H. consented to A.H.'s adoption. Arrangements were made once more for K.H. to accompany a CFSA investigator, who was also a process server, to try to locate A.H.'s father. This time they succeeded. E.P. was served with a notice for termination of parental rights (TPR) on January 28 -- five months after he had learned about the child -- and with a notice of the proposed adoption a month later on February 23. E.P. maintains that he had been unaware that A.H. was in a foster home until he was served with the TPR notice in January, and that he had not been certain the child was his until a DNA test confirmed his paternity in March 2010. Immediately after the DNA result, E.P. said, he contacted CFSA. Without waiting for a court order, the agency arranged for E.P. to have two, one-hour supervised visits with A.H.
E.P. attended the next scheduled status hearing on March 25, 2010 and notified the magistrate judge that he wished to work toward gaining custody of his child. Because E.P. had just been identified as the father, the judge chose to maintain the goal of adoption. However, he deferred a hearing on the adoption petition, giving the parties additional time to discuss their respective positions. Taking into account the child's young age and the absence of information about E.P.'s ability to care for her, the magistrate judge formalized E.P.'s visitation rights with an order allowing supervised visits of at least one hour each week, and he granted CFSA, the guardian ad litem, and the foster mother (C.L.O.) discretion to determine together whether to permit unsupervised visits.
Four months later on July 26, 2010, having failed to obtain permission for unsupervised visits, E.P. filed a motion for unsupervised visitation and for appointment of an independent social worker. The magistrate judge denied the motion as well as a motion to reconsider. The judge held a permanency hearing on September 14, at which E.P. withheld his consent to A.H.'s adoption.
On October 14, 2010, the magistrate judge convened a show cause hearing*fn8 to evaluate whether the court, in the child's best interest, should waive the statutory requirement for E.P.'s consent to the adoption. By that time, A.H. had just turned three years old. She had been in foster care for all but three months of her life, and the petitions for TPR and adoption had been pending for nine months and eight months, respectively. The parties presented extensive evidence over the course of four days, including testimony from C.L.O. and E.P., as well as from three of E.P.'s daughters (by other mothers); the mother of one of his daughters; E.P.'s own mother; four social workers who had been supervising the case; A.H.'s daycare teacher; a child psychiatrist; and a clinical psychologist.
C.L.O. testified that she has a bachelor's degree, as well as a master's degree in social work, from Howard University. She has been employed by CFSA as a supervisory social worker for twenty years. C.L.O. has one biological teenage daughter for whom she has always been the primary caretaker. She lives with L.A.L., her daughter's biological father, and she owns her home. She was forty-nine years old at the time of the hearing, she said, and was in good health except for high blood pressure controlled by medication.
C.L.O. then testified about the close relationship A.H. has developed with C.L.O. and her family. A.H. refers to C.L.O. as "mom." She refers to C.L.O.'s biological daughter as her sister or her best friend. L.A.L. and A.H. have a positive relationship, and A.H. refers to L.A.L. as her "daddy." C.L.O. further testified that she believed removal of A.H. from her home would be "traumatic" for the child. C.L.O. also testified that, if the adoption were approved, she would agree to allow E.P. to develop a relationship with his daughter, beginning by inviting him to holidays and special events and then giving A.H. more freedom to decide when to meet with her father as she gets older.
A.H.'s daycare teacher testified that A.H. was a healthy and active child, with no behavioral problems, good hygiene, excellent attendance, and good communication and social skills. She described C.L.O. as "very attentive" to A.H.'s needs. Emily Colebrook, one of the CFSA social workers, testified that "C.L.O. took every step that was recommended" for A.H.'s care and "really went above and beyond to make sure [A.H.] continued to progress." Ms. Colebrook added that C.L.O. and L.A.L. had a very positive relationship with A.H.; the relationship was trusting, nurturing, loving, and marked by appropriate disciplinary boundaries.
Kathryn King, a supervisory social worker, testified about the attentive care that C.L.O. was providing and stressed the bond that had developed between A.H. and her pre-adoptive family. Ms. King further testified that she believed it would be devastating for A.H. to be removed from C.L.O.'s home because "she's totally bonded to [C.L.O.]'s family, her biological daughter, her boyfriend [L.A.L.]. She's -- that's her family." Carolyn Nicholson, a third CFSA social worker, testified similarly about the positive relationship between A.H. and C.L.O., stating that A.H. appeared to be "fully integrated into that foster family." On the other hand, a fourth CFSA social worker, Marie Cohen, testified about the positive nature of E.P.'s visits with his daughter and stated that she was not comfortable with the permanency goal of adoption.
The magistrate judge then heard testimony from E.P. that he was unemployed at the time of the hearing but was actively seeking employment, and that his income consisted of unemployment compensation, food stamps, and payments for odd jobs. At the time of the hearing, E.P. lived with his mother, for whom he provided some financial support. E.P. was fifty-five years old at the time of the hearing and in good health, with the exception of high blood pressure controlled by medication.
E.P. testified that he has had seven children (including A.H.) with five different women, and that he was "always very active with [his] kids," having a "good relationship" with each. E.P. acknowledged, however, that he did not know what his eldest son (aged thirty-six and living in Wisconsin) "was up to." E.P.'s second and third sons were killed at a young age following involvement in criminal activity. None of E.P.'s sons finished high school.
E.P.'s eldest daughter, D.P.W., was thirty at the time of the hearing. She testified that E.P. had lived with her mother until D.P.W. was five years old and that he had been engaged in her upbringing. She also lived with E.P. for five months when she was fourteen, after becoming pregnant. E.P.'s second daughter, E.J., testified that she had spent many weekends with her father growing up and that he had provided her with necessities such as school supplies. Neither D.P.W. nor E.J. finished high school, but they have since obtained General Equivalency Degrees (GEDs) and job training.
According to E.P.'s third daughter, S.C., E.P. maintains a close relationship with her and participates in her high school education. S.C.'s mother stressed that, with the assistance of family members and hired nurses, E.P. had cared for S.C., as well as S.C.'s five siblings, for a number of years immediately following S.C.'s birth when S.C.'s mother was seriously ill. S.C.'s mother testified that during this time E.P. "would cook, he would wash the clothes, help with the kids, take them out to play." E.P. testified that he had paid child support for one of his seven children and provided for them informally when needed.
The magistrate judge learned from a social worker that E.P. had not missed a single visit with A.H., who had responded positively except on one occasion, when she exhibited an unusual reluctance to engage with him. E.P. brought his daughter a snack for each visit, as well as a basket for Easter; cake, ice cream, and a doll for her birthday; and clothing on another occasion. After a number of visits, A.H. began referring to E.P. as "daddy." E.P. testified that he hoped A.H. could gradually experience a transition to his custody, but he was not able to articulate a plan for her care if he were to obtain custody. He added that A.H. would reside with him at his mother's home along with his seventy-year-old mother and a "Cousin James."
At the hearing, E.P. acknowledged that he had a criminal record. In 1991, he pled guilty to attempted carnal knowledge, and a year later he pled guilty to simple assault. E.P. had earlier failed to come forward with information about the attempted carnal knowledge conviction when social workers asked him to disclose prior convictions, if any. Two of the social workers testified, accordingly, that they had refused to grant E.P. unsupervised visits with A.H. because they had been concerned about his judgment and character.
Finally, a child psychiatrist, Dr. Susan Thuet, and a clinical psychologist, Dr. Charles Missar, offered expert clinical opinions about A.H.'s respective attachments to C.L.O. and E.P. Dr. Thuet testified that the strongest aspects of attachment are witnessed from birth to about three and a half years old, a period when the risks associated with breaking attachments -- sadness, crying, irritability, and sleep problems -- are the greatest. Based on her observation of A.H. with C.L.O., and then with E.P., during two consecutive, forty-five minute "attachment" studies, Dr. Thuet testified that in her clinical opinion A.H. had developed positive attachments of equal strength to C.L.O. and E.P. She added that she believed A.H. would be sad and distressed to leave her pre-adoptive home with C.L.O.'s family, and that there was a risk of long-term psychological harm in doing so that would turn on a number of factors, including the nature of the relationship A.H. developed in a different home, the results of therapy, and A.H.'s own constitution. She testified, however, that the psychological harm to A.H. would be the same if she were no longer permitted to interact with E.P. because "the strength of the attachment . . . between her and her father was very significant."
Dr. Missar's testimony differed from Dr. Thuet's, including his distinction between a "bond" and an "attachment." Dr. Missar defined a psychological attachment as "much deeper than a bond relationship." He stated that the short-term consequences of breaking an attachment for a child under four to five years old include "emotional regression" and a likelihood that the child will "cry, break down, have temper tantrums, act out." The long-term consequences include having "trouble reattaching to people." He agreed that the first four years of a child's life were the most critical with regard to the development and maintenance of attachments. Dr. Missar further testified that, based on his review of background materials as well as Dr. Thuet's report, A.H. had developed a positive bond with E.P. and that breaking that bond would have an emotional impact on A.H. But he stressed that in his ...