APPEAL OF H.R.

Decision Date29 August 1990
Docket NumberNo. 86-1426,86-1426
Citation581 A.2d 1141
PartiesAppeal of H.R. (In the Matter of BABY BOY C.)
CourtD.C. Court of Appeals

Appeal from the Superior Court, Virginia L. Riley, J.

Thomas C. Jones, Jr., Washington, D.C., for appellant. Thomas R. Spradlin, Washington, D.C., entered an appearance.

David S. Klontz, with whom Michael P. Bentzen, Washington, D.C. was on the brief, for appellees.

Before ROGERS, Chief Judge, and FERREN and BELSON, Associate Judges. *.

Judge ROGERS was an Associate Judge of this court at the time of argument. Her status changed to Chief Judge on November 1, 1988.

PER CURIAM.

In this appeal from an order of adoption, this court addresses the question whether H.R., a natural father who seeks custody of his child, 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 Baby Boy C.'s best interest called for his adoption by the O. family over H.R.'s objection.

Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), recognizes that a noncustodial father has a constitutionally protected "opportunity interest" in developing a relationship with his child. The Division agrees that the statutory best interest of the child standard must be applied in determining whether to grant a petition for adoption filed 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. Because the best interest standard, as applied by the trial court, did not incorporate such a parental preference, a majority concludes that a remand is required to apply the best interest standard as properly formulated. The dissenting judge would affirm the trial judge's ruling that H.R. did not grasp his "opportunity interest" and would hold that reversal and remand are inappropriate in any event because of the trial judge's determination concerning the effect that transfer from the adoptive parents would have upon the child.

FERREN, Associate Judge:

This case concerns the constitutional and statutory rights of an unwed father, appellant H.R., a citizen of Zaire who has been seeking custody of his infant (now seven-year-old) son, Baby Boy C. The child's mother, L.C., is a United States citizen who conceived the child while serving as a Peace Corps volunteer in Zaire. She returned to the United States and, ten days after the child was born in August 1983, relinquished her own parental rights to the Barker Foundation, a licensed child placement agency in the District of Columbia, to facilitate adoption of the child. In September 1983, Barker placed the child with adoptive parents, Mr. and Mrs. O., who, the same day, filed a petition for adoption in Superior Court. Although, upon leaving Zaire, L.C. had told H.R. she was pregnant, a mutual friend told H.R. in July that L.C. had had an abortion. H.R. was not aware that he had a son until sometime in October 1983, when L.C. informed H.R. that they had a child which she had placed for adoption. At this time, however, L.C. did not inform H.R. that he had rights concerning the child, even when he expressed his intent to assume custody of the child himself. Similarly, although the Barker Foundation sent H.R. two letters seeking his consent to adoption, the agency never informed him of his right to seek legal custody, or of Barker's role in the adoption process, or of the pending legal proceeding. In fact, for eighteen months, from October 1983 to April 1985, H.R. received no notice, official or otherwise, that a judicial proceeding had been initiated that could cut off all his legal rights to his child, despite the fact that throughout this period he was in contact intermittently with L.C. and with Barker, asking for information about his legal rights and manifesting a desire to take custody of his son. It was not until April 1985, after the trial court had issued an interlocutory decree of adoption and Baby Boy C. was 20 months old, that H.R. finally received notice of the court proceeding in the form of an order to show cause why afinal adoption decree should not be granted to Mr. and Mrs. O., coupled with an order for H.R. to appear before the court in June 1985 to provide testimony on the issue. After several hearings on the petition held in June 1985 and over the next eleven months, the trial court granted the petition of Mr. and Mrs. O. to adopt Baby Boy C. as being "in the best interests of the child."

H.R. contends the adoption proceedings which granted custody of Baby Boy C. to the O. family (1) violated his statutory and constitutional rights to immediate, adequate notice of the adoption proceedings, including due diligence to assure he received notice, and (2) applied the wrong test by ordering the adoption in "the best interests of the child" without granting him a custodial preference as a natural parent, absent a showing of unfitness. He therefore urges us to remand this case for application of a "fitness" test whereby H.R. would assume custody of Baby Boy C. unless the court found him unfit to be a parent.

I conclude that H.R.'s constitutional and statutory rights have been violated and that the court applied the wrong legal test in granting the adoption. I further conclude that when an unwed, noncustodial father has not abandoned his "opportunity interest" in developing a relationship with his child, the Constitution mandates that we construe our "best interests" standard under the adoption statute to include a custodial preference for a "fit" parent. In this case, I conclude as a matter of law that, because of unlawful state action, H.R. cannot be said to have abandoned his "opportunity interest." Under the circumstances, therefore, the court should have awarded custody to H.R. if found "fit" to be a parent, unless clear and convincing evidence demonstrated that such custody would have been detrimental to the "best interest" of Baby Boy C. Because the trial court incorrectly applied a more traditional "best interest" test that did not begin with a presumption of custody for a "fit" natural parent, and because we, as an appellate court, cannot properly apply the correct test on this record, we vacate the judgment and remand the case for further proceedings.

I. FACTS AND PROCEEDINGS
A. Case History

Baby Boy C.'s mother, L.C., met H.R. in the village in Zaire where she was teaching.1 At the time, appellant was on leave from his law studies at the university in Kinshasa, Zaire. In April 1983, when L.C. learned she was pregnant, the Peace Corps immediately evacuated her to Washington, D.C. Upon her departure, L.C. wrote a letter to H.R. informing him that she was pregnant and that he was the father. She hinted that she planned to have an abortion, saying that what she would have to go through in the United States would exhaust her physically and emotionally and that she would return to Zaire in two weeks. She also said that she did not want anyone to know about the matter. L.C. never went back to Zaire. In July, a mutual friend of L.C. and H.R. told H.R. that L.C. had had an abortion in Washington, D.C. In fact, however, L.C. gave birth to Baby Boy C. in the District on August 5, 1983. Ten days later, L.C. relinquished her parental rights to the Barker Foundation.

In early August 1983, when he was visiting the dean's office at the University ofKinshasa from which he had graduated in June, H.R. happened upon a letter from the Barker Foundation postmarked over two months earlier in May. The letter notified him that L.C. was expecting to give birth to a child in July.2 Along with its letter, Barker sent three forms: an "Admission of Paternity and Consent to Adoption" form, a "Statement of Non-Paternity and Consent to Adoption" form, and a biographical data form. Neither the letter nor the accompanying forms indicated that H.R. had the right not to consent to the adoption and the right to seek custody of his child himself. Upon receiving this information, H.R. immediately wrote a letter to L.C. in care of her parents, in order to ascertain what in fact had occurred over the past several months. L.C. received this letter in mid-September, after she had left Washington to attend graduate school in Chicago. Because she was unsure of H.R.'s whereabouts and afraid that her letter might be intercepted and read by his relatives, L.C. answered the letter without mentioning the birth of Baby Boy C. or the plans for adoption. L.C., however, gave H.R. a telephone number where she could be reached.3

On September 22, 1983, the Barker Foundation placed Baby Boy C. with the O. family. On the same day, the O. family filed a petition for adoption in Superior Court. No notice was sent to inform H.R. of a formal adoption proceeding seeking to terminate his parental rights to Baby Boy C. in favor of a new adoptive family.4 On September 29, 1983, the court issued an order of reference, directing Barker to investigate the truth of the allegations contained in the petition for the purpose of determining whether Baby Boy C. was "a proper subject for adoption and if the home of the petitioners is a suitable one" and to file a report in ninety days.

In October 1983, after receiving L.C.'s response to his letter in which she had acknowledged receiving his letter but had not mentioned a baby, H.R. called her and learned for the first time that he had a son. According to L.C.'s testimony at the eventual hearings in this case, H.R. did not have a good understanding of United States adoption procedures and thoughtthat L.C. had abandoned the child. Both in this conversation and in one that followed in the same week, she said, L.C. informed H.R. that she had given...

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