In re FW

• Decision Date: 17 March 2005
• Docket Number: No. 03-FS-612, No. 03-FS-653.
• Citation: 870 A.2d 82
• Court: D.C. Court of Appeals
• Parties: In re Petition of F.W. & D.T.; G.G., Appellant.

870 A.2d 82

In re Petition of F.W. & D.T.;

G.G., Appellant.

Nos. 03-FS-612, 03-FS-653.

District of Columbia Court of Appeals.

Argued June 15, 2004.

Decided March 17, 2005.

Lucy Vera Osakwe, Silver Spring, MD, appointed by this court, for appellant.

David D. Smyth III, with whom Charles G. Cole, Washington, DC, was on the brief, for petitioners.

Claude L. Matthews, Washington, DC, filed a brief in support of petitioners as Guardian Ad Litem for Je.G. and Ja.G.

Before RUIZ, GLICKMAN and WASHINGTON, Associate Judges.

PER CURIAM:

Appellant, G.G., appeals the trial court's waiver of her consent to adoption and termination of her parental rights with regard to her children Je.G. and Ja.G. G.G. contends that the trial court lacked clear and convincing evidence necessary to waive her consent; that the trial court failed to adequately weigh issues of race, culture, and gender in reaching its decision; and that actions or omissions of the responsible social services agency should have caused the trial court to deny the adoption petitions. We affirm the trial court's decision.

I.

Je.G. and Ja.G. were committed to foster care in October 2000, after the trial court found them neglected in accordance with a stipulation signed by G.G.¹ In April 2001, foster parents F.W. and D.T. filed petitions to adopt the children. G.G. and her husband J.G., who is the father of the children, objected to the proposed adoptions. After holding a consolidated hearing to show cause why the parents' consents to the adoptions should not be waived, the court found that the parents had withheld their consents contrary to the children's best interests and waived consents of the parents to the adoptions. On December 20, 2002, the court issued its findings of fact, conclusions of law, and judgment, and in April 2003, the court issued final decrees of adoption for the children.

II.

The trial court can waive otherwise necessary parental consents to a proposed adoption if the court determines that the parents are withholding their consents contrary to the child's best interests. See In re P.S., 797 A.2d 1219, 1223 (D.C.2001); D.C.Code § 16-304(a)-(b)(2)(B), (e) (2001). We review such a determination for abuse of discretion. In re P.S., 797 A.2d at 1224; In re D.R.M., 570 A.2d 796, 803-804 (D.C.1990). "Such a finding must be supported by clear and convincing evidence," In re W.E.T., 793 A.2d 471, 478 (D.C.2002), "`such that the possibility of an erroneous judgment does not lie in equipoise between the two sides.'" In re J.G. Jr., 831 A.2d 992, 999 (D.C.2003) (quoting In re K.A., 484 A.2d 992, 996 (D.C.1984)). "Clear and convincing evidence is evidence which will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. It does not mean clear and unequivocal." In re W.E.T., 793 A.2d at 478 n. 15 (internal quotation marks and citation omitted).

In making its determination, the trial court must weigh the same factors as those weighed in a termination of parental rights proceeding. See In re J.G. Jr., 831 A.2d at 999; In re P.S., 797 A.2d at 1223; In re A.W.K., 778 A.2d 314, 325 (D.C.2001). The factors to be considered here are:²

(1) the child's need for continuity of care and caretakers and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages;

(2) the physical, mental and emotional health of all individuals involved to the degree that such affects the welfare of the child, the decisive consideration being the physical, mental and emotional needs of the child;

(3) the quality of the interaction and interrelationship of the child with his or her parent, siblings, relative, and/or caretakers, including the foster parent; ... [and]

(4) to the extent feasible, the child's opinion of his or her own best interests in the matter....

§ 16-2353(b); see also In re P.S., 797 A.2d at 1223-24.

We disagree with appellant's contention that the evidence was insufficient for the trial court to find that clear and convincing evidence supported waiver of parental consents. As it was entitled to do, the trial court specifically credited testimony from social workers Donita King-Holmes, Donna Liu, and Nicole Gilbert, and witness F.W. The court discounted conflicting testimony from one less-experienced social worker, Anthony Ogbonnaya, and from the biological parents, who had disputed and failed to explain injuries that another of their children had sustained. This court will not "`redetermine the credibility of witnesses where, as here, the trial court had the opportunity to observe their demeanor and form a conclusion.'" In re P.S., 797 A.2d at 1224 (quoting In re E.H., 718 A.2d 162, 169 (D.C.1998)).

The credited testimony and other evidence was ample to establish the first and third § 16-2353 factors — that both children needed and had enjoyed continuity of care in the petitioners' home, were well-integrated into the petitioners' family, and enjoyed positive interactions within that family — by the clear and convincing standard. See § 16-2353(b)(1), (3). "[A] stable and desired environment of long standing should not be lightly set aside." In re W.E.T., 793 A.2d at 478 (internal quotation marks and citations omitted). Je.G. had lived with the petitioners for all but nine months of his life, and Ja.G. had lived with the petitioners virtually her entire life. Testimony was presented that the petitioners' other children were loving and affectionate with the G. children, and several witnesses provided consistent testimony about the high degree of bonding of the children to the petitioners. In contrast, the court heard conflicting testimony regarding the existence and degree of bonding of the children to the birth parents, and the court discredited the testimony from Ogbonnaya that the children were bonded to the birth parents.

Clear and convincing evidence also supported the court's findings with regard to the second § 16-2353 factor, "the physical, mental and emotional health of involved individuals" as it affected the welfare of the children with "the decisive consideration being the physical, mental and emotional needs of the children." See § 16-2353(b)(2). Je.G.'s special needs³ brought an extra dimension to this factor with respect to consent for his adoption, as "[a]n individual who is able to parent a child with advanced or average skills may nevertheless be unable to carry out the additional responsibilities required to raise a child with special needs." In re P.S., 797 A.2d at 1224 (quoting In re E.H., 718 A.2d at 170).

Regarding the petitioners, the court heard testimony about their long-term commitment to each other, steady employment, and manner of caring for all the children in their household. The court also heard testimony regarding the biological parents' failures to complete all counseling and parenting sessions; their failure to attend therapeutic sessions with Je.G. consistently; their employment situations; their failure to provide gifts or support to the children; their failure to apply parenting skills during supervised visits; and G.G.'s mistrust of employers and the social care system. This testimony was equally pertinent to the question of each child's best interests. Regarding Je.G. specifically, the court heard testimony about the petitioners' abilities to meet his special needs and his progress under their care. The court contrasted this with the testimony of the biological parents, who denied that Je.G. had exhibited developmental and health problems when he was placed with the petitioners and who were not well-informed about his special needs.

We also disagree with appellant's second contention, that the trial court failed to weigh adequately the issues of race, culture, and gender in reaching its determination. "[R]ace is simply a factor that may be considered by the trial court in the process of determining the best interests of the child," which "pale[s] into insignificance when we compare the health needs of th[e] child...." In re P.S., 797 A.2d at 1225 (citing In re D.I.S., 494 A.2d 1316, 1326-27 (D.C.1985)). Here, the court heard testimony from multiple parties regarding race and associated cultural-family identity concerns and squarely addressed them in its ruling. The petitioners, who are described as Caucasian, had two older African-American children in their family. The court heard testimony about these children and their relationships with the G. children, as well as testimony about the petitioners' sensitivity to issues of cultural and racial heritage and their efforts to promote the children's racial identities and awareness of their heritage.

Regarding gender and the availability of male role models for the boy Je.G., the court heard testimony that the petitioners, who are both female, have an older male child in their family and testimony about the children's positive interactions. The fact that petitioners are a same-sex female couple cannot, in itself, be presumed contrary to Je.G.'s best interests. See In re M.M.D., 662 A.2d 837, 859 (D.C.1995) (holding that "unmarried couples, whether same-sex or opposite-sex, who are living together in a committed personal relationship, are eligible to file petitions for adoption"); see also In re T.J., 666 A.2d 1 (D.C.1995) (reversing trial court's grant of adoption petition by same-sex foster parents solely on the ground that the mother's choice of a different, fit custodian was not properly considered).⁴

With the best interests of the children as the focus, ample testimony existed to support a finding of waiver of consent pursuant to the relevant factors enumerated in § 16-2353(b) by clear and convincing evidence.⁵ We are satisfied that the trial court did not abuse its discretion in making its determination.

Lastly, we disagree with appellant's third contention, that the court should not have granted...