In re J.B.S.

• Decision Date: 10 September 2020
• Docket Number: Nos. 16-FS-1244 & 16-FS-1245,s. 16-FS-1244 & 16-FS-1245
• Citation: 237 A.3d 131
• Court: D.C. Court of Appeals
• Parties: IN RE Petition of J.B.S. & V.S.S.; In re Petition of R.H.; District of Columbia, J.B.S. and V.S.S., Appellants; R.H., S.C., and T.C., Appellees.

237 A.3d 131

IN RE Petition of J.B.S. & V.S.S.;

In re Petition of R.H.;

District of Columbia, J.B.S. and V.S.S., Appellants;

R.H., S.C., and T.C., Appellees.

Nos. 16-FS-1244 & 16-FS-1245

District of Columbia Court of Appeals.

Argued June 12, 2018

Decided September 10, 2020

Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, and Loren L. AliKhan, Deputy Solicitor General at the time the brief was filed, were on the brief, for appellant the District of Columbia.

Sharon A. Singh for appellants J.B.S. and V.S.S.

Mark R. Thomson, with whom Thomas A. Lorenzen, Washington, DC, and Robert B. Kornweiss, New York, NY, were on the brief, for appellee R.H.

Kwame Willingham for appellee S.C.

Jerelyn F. Gladden, Hyattsville, MD, filed a Statement in Lieu of Brief for appellee T.C.

Carmen McLean, Alisha Crovetto, Washington, DC, and Ilana B. Gelfman, Boston, MA, were on the brief for amicus curiae Children's Law Center.

Stephanie Troyer, Meridel Bulle-Vu, Jonathan H. Levy, and David Carpman were on the brief for amicus curiae The Legal Aid Society of the District of Columbia.

Before Blackburne-Rigsby, Chief Judge, and Glickman, Thompson, Beckwith, Easterly, McLeese, and Deahl, Associate Judges.^*

Concurring opinion by Associate Judge Easterly at page 148.

Glickman, Associate Judge:

We have gone en banc to reconsider our socalled "weighty consideration" doctrine in contested child adoption proceedings. Appellants, joined by the Children's Law Center as amicus, urge us to abandon the doctrine or limit its application. Appellees, joined by amicus The Legal Aid Society, support its retention.

The "weighty consideration" doctrine requires a court deciding between competing adoption petitions to grant the petition that the child's biological parent favors unless the court finds "by clear and convincing evidence that the parent's choice of custodian is clearly contrary to the child's best interest."¹ "Weighty consideration" in effect establishes a strong presumption that the parent's preference is in the child's best interest—a presumption that determines who will adopt the child unless the non-favored petitioner proves that placement of the child with the parentally preferred petitioner "would be detrimental to the child[ ]’s best interest."² This presumption applies even when, as in the present case, the child was neglected and removed from his parent's care, and the court finds by clear and convincing evidence that the parent is unfit to care for the child. Compliance with the "weighty consideration" rule in this case led the Superior Court to deny a child the adoption it found to be in his best interests and instead to grant a competing petition that posed identifiable risks for the child's long-term welfare.

"Weighty consideration" is a judge-made rule. We have applied it in contested adoption proceedings to vindicate the "constitutionally protected interest in influencing their child's future" that we said even unfit parents have as long as their parental rights "remain intact."³ This application of "weighty consideration" is controversial, however, and in our recent en banc decision in In re Ta.L. , a majority of the judges of this court expressed serious doubts as to its validity.⁴

We now decide that this court erred in requiring "weighty consideration" when the parents of a child up for adoption have been found, by clear and convincing evidence, to be unfit to raise the child. We agree with the objections identified in In re Ta.L . : "[I]f a parent has been deemed unfit, the parent does not have a constitutionally protected right to choose her child's adoptive parent or to have her preference be given any weight."⁵ And, stripped of its constitutional patina, "weighty consideration" deference to an unfit parent in an adoption proceeding is incompatible with the "best interest of the child" standard and the statutory provisions governing adoption in the District of Columbia.⁶ "Weighty consideration" impermissibly reverses the normal requirement, set forth in D.C. Code § 16-309(b), that a court must find a proposed adoption to be "for the best interests of the prospective adoptee" in order to approve it.⁷

Henceforth, we hold, parents properly found by clear and convincing evidence to be unfit are not entitled to "weighty consideration" of their preferences in contested adoption proceedings. If their parental rights have not yet been terminated formally and finally, the parents may be heard in those proceedings, and they may have helpful information and a valuable perspective to contribute—but the court should give their views only such weight as it thinks they deserve in an unbiased determination of the child's best interest. Accordingly, in the present case, we vacate the adoption order and remand for further proceedings.

I.

The present appeal arises from competing petitions to adopt T.C., a neglected child removed from his mother's care when he was an infant. T.C.’s foster parents, appellants J.B.S. and V.S.S. ("the S's"), eventually petitioned to adopt him. His paternal grandmother, appellee R.H., filed a competing adoption petition. The child's birth parents consented to the grandmother's petition and withheld consent to the petition of the foster parents. After a lengthy trial, Magistrate Judge Nolan found by clear and convincing evidence that T.C.’s parents were unfit to care for the child. The magistrate judge found it in T.C.’s best interest to be adopted by the S's. However, after further proceedings that we describe below, Magistrate Judge Nolan concluded that "weighty consideration" for the parents’ preference required him to grant R.H.’s petition to adopt T.C. On review, Associate Judge Epstein upheld that determination. The District and the S's took the present appeals to this court.⁸

T.C. was removed from the care of his mother, appellee S.C., when he was less than two months old. His biological father, D.H., was an unwed, non-custodial parent who was not involved with T.C.’s care at that time.⁹ After a trial in which the court found T.C. to be a neglected child, the Child and Family Services Agency (CFSA) placed T.C. with his mother's aunt. The Superior Court granted the aunt's petition to become T.C.’s permanent guardian.

When T.C. was two years old, however, he suffered severe burns to over 45 percent of his body after his great-aunt left him in his mother's care. T.C.’s father learned of this. He and the District moved to terminate the guardianship. T.C. was admitted to Shriners Hospital in Boston, Massachusetts, for treatment of his burns. His hospitalization lasted two months. In January 2012, T.C. was discharged from the hospital and placed in foster care with the S's. He has remained in their care to the present day.

The S's petitioned to adopt T.C. in September 2013, after his permanency goal had been changed to adoption. At that time, he was four years old and had been in their care for eighteen months. A week later, T.C.’s paternal grandmother, R.H., filed a competing petition. T.C.’s parents did not seek custody of him. They consented to R.H.’s petition and opposed adoption by the S's.

In the ensuing trial, Magistrate Judge Nolan heard testimony from over twenty witnesses, including T.C.’s parents S.C. and D.H., the adoption petitioners, multiple social workers, and mental health professionals. At the conclusion, the magistrate judge found by clear and convincing evidence that T.C.’s mother abandoned him; that his father failed to grasp the opportunity to parent T.C. and thus "effectively" abandoned him; and that the parents were neither willing nor able to care for him themselves and so were not "fit" to care for T.C.¹⁰

Regarding the question of adoption, Magistrate Judge Nolan acknowledged the parents’ preference for R.H. He did not consider it an informed preference, as he found that S.C. and D.H. were uninterested in or ignorant of T.C.’s hospitalization, rehabilitation, and care needs, and that they lacked knowledge of the adoption petitioners and their qualifications.¹¹ Having found the parents essentially abandoned T.C., the magistrate judge ruled that their consents to T.C.’s adoption were not required by law,¹² and that their preference for R.H. was not entitled to "weighty consideration."

The magistrate judge proceeded to assess which petition was in T.C.’s best interest by carefully considering the relevant termination-of-parental-rights (TPR) factors set forth in D.C. Code § 16-2353(b) (2012 Repl.).¹³ As relevant to this case, these factors require the "best interests" decision to be guided by the child's need for "continuity of care" and "timely integration into a stable and permanent home"; the child's physical, mental, and emotional health and needs, and the health of others insofar as that may affect the child's welfare; the "quality" of the child's interaction and relationships with the adoption petitioners and others; and, to the extent feasible, the child's opinion of his own best interests.

Magistrate Judge Nolan found neither the S's nor R.H. to be unfit or to be disqualified from consideration for any other reason; they were "[e]qually" in good health and had substantial parenting experience. But he found that every one of the relevant statutory factors weighed, almost always "heavily," in favor of granting the petition of the S's, rather than the petition of R.H., in T.C.’s best interests. For purposes of this opinion, we need not recapitulate the findings on each factor in detail. In connection with the legal question before us, a few findings are especially noteworthy.

The magistrate judge found that over the course of two and a half years, the S's had provided T.C. with "a level of stability and consistency he ha[d] not previously known" in "a loving, well-run household," and that they had "demonstrated their commitment to [T.C.] and their staying...