In re Of, 17-FS-376

• Court: D.C. Court of Appeals
• Writing for the Court: Fisher, Senior Judge
• Citation: In re Of, 247 A.3d 289 (D.C. 2021)
• Decision Date: 18 March 2021
• Docket Number: No. 17-FS-376,17-FS-376
• Parties: IN RE Petition of A.T.J. and L.D.J., L.M.J., Appellant.

247 A.3d 289

IN RE Petition of A.T.J. and L.D.J., L.M.J., Appellant.

No. 17-FS-376

District of Columbia Court of Appeals.

Argued September 20, 2017

Decided March 18, 2021

Leslie J. Susskind for appellant L.M.J., father of K.J.

Pamela Soncini, Section Chief, Family Services Division, 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 appellee the District of Columbia.

Stephen L. Watsky for appellees A.T.J. and L.D.J.

Joseph W. Jose, guardian ad litem, filed a statement in lieu of brief for K.J. supporting the brief of appellees A.T.J. and L.D.J.

Before Beckwith, Associate Judge, and Steadman and Fisher,^* Senior Judges.

Dissenting opinion by Associate Judge Beckwith at page 300.

Fisher, Senior Judge:

The principal issue in this contested adoption case is whether the natural father, who has never met his daughter and does not seek custody of her, is entitled to the benefit of the presumption in favor of a natural parent. We hold that he is not.

I. Background

K.J. was born on December 14, 2006. Appellant L.M.J. is her biological father and C.J. is her biological mother. C.J. cared for K.J. by herself until 2009. Because C.J. received "little to no family support and had both suicidal and homicidal thoughts," she voluntarily placed K.J. and her younger half-brother in foster care in October 2009. L.M.J. learned of K.J.’s existence sometime between 2010 and 2011 but has never met K.J. or played a role in her life.

Mr. and Mrs. J., the appellees, first met K.J. in 2009 when they began providing daycare services for her. In order to give K.J. and her brother a home, the J.s became licensed foster parents. K.J. began living with the J.s on January 12, 2013, and they petitioned to adopt her on April 17, 2013. C.J. and L.M.J. did not consent to the adoption and on October 1, 2014, Magistrate Judge Sean Staples began a multi-day trial on the J.s’ adoption petition.

Magistrate Judge Staples heard testimony from the J.s, C.J., and K.J.’s social workers and therapists. Although present for much of the hearing and represented by counsel throughout, L.M.J., the biological father, did not testify or call any witnesses. L.M.J. did not seek custody of K.J. but instead "oppose[d] the adoption because it may jeopardize his ability to form a relationship with K.J."

C.J. testified that L.M.J. was not made aware of the possibility of paternity until sometime in 2010 or 2011 when she met L.M.J. "by chance in the community and told him he was K.J.’s father." Prior to this chance encounter, C.J. made alternate assertions about paternity when, on October 15, 2009, during neglect proceedings, she filed an affidavit ("Biological Mother's Affidavit Concerning Paternity") naming another man ("A.P.") as K.J.’s father. However, a court ordered DNA test, administered on July 2, 2013, revealed that A.P. was not K.J.’s biological father. C.J. then filed a new "Biological Mother's Affidavit Concerning Paternity" on July 26, 2013—in the same neglect proceedings—naming L.M.J. as K.J.’s father. L.M.J.’s paternity was confirmed by a DNA test administered on July 15, 2014.

In the years between his chance meeting with C.J. and his eventual DNA test, L.M.J. did not make any effort to contact K.J. During the 2010 or 2011 encounter, C.J. had given L.M.J. a picture of K.J. which he kept and eventually showed to Rochelle White, K.J.’s social worker, in 2014. In late July or early August of 2014—about three years after being told he was K.J.’s father but shortly after the paternity test—L.M.J. called the foster care agency and asked to visit K.J. However, K.J. did not want to meet L.M.J. and her therapist recommended that L.M.J. write her letters in an attempt to build a relationship. During trial L.M.J.’s lawyer claimed that L.M.J. "attempted to contact the agency over the years to get information about K.J.," but presented no evidence regarding the timing or nature of those contacts. L.M.J. had admitted to K.J.’s social worker "that he was incarcerated two separate times for at least two years between the period of time he was told that K.J. was his daughter and 2014."

Testimony from the J.s and Dr. Giselle Aguilar Hass, a licensed psychologist, established that K.J. was "fully integrated" into the petitioners’ home. K.J. viewed the J.s as her parents and the J.s’ biological children as her brothers. The J.s were "steadfast advocates for [K.J.’s] care and well-being" and worked with her "medical and mental health providers to provide consistent and appropriate services" for her special needs. Magistrate Judge Staples also "credit[ed] Dr. Hass’ opinion that K.J.... and Mr. and Mrs. J. all love each other very much and that removal of [K.J.] from their care would have a significant negative emotional impact on [her]." At the time of trial, K.J. still did not wish to visit her biological father, L.M.J. The trial court admitted testimony from Lisa Larabee, K.J.’s therapist, in which she stated that K.J. told her multiple times that she wished to be adopted by the J.s. K.J.’s guardian ad litem "also filed his support of the proposed adoption."

On February 26, 2015, Magistrate Judge Staples issued a written Order that waived consent to the adoption because there was clear and convincing evidence that L.M.J. and C.J. were withholding their consent contrary to K.J.’s best interest. See D.C. Code § 16-304(e) (2012 Repl.). In his Findings of Fact and Conclusions of Law, Judge Staples weighed the factors listed in D.C. Code § 16-2353(b)(1-4) (2012 Repl.), which provide grounds for determining whether it is in the child's best interest to terminate the parent-child relationship. However, he made no express finding that L.M.J. and C.J. were unfit parents. A final decree of adoption was issued on November 17, 2015.

L.M.J. and C.J. both filed motions for review of the magistrate judge's order. L.M.J. argued that his fundamental rights as a parent were violated when the magistrate judge waived his consent to the adoption. He claimed he had "grasped his opportunity interests" and was "therefore entitled to a legal presumption in favor of maintaining his parental relationship with K.J."

Associate Judge Heidi M. Pasichow concluded on review that the magistrate judge did not violate L.M.J.’s constitutionally protected parental rights by waiving his consent to the adoption. She observed that "the record ... demonstrate[d] that [L.M.J.] desire[d] to form a relationship with K.J., but that he [did] not wish to carry the responsibilities that adhere in being K.J.’s parent." Although "the termination of [L.M.J's] parental rights [was] a drastic remedy, the ‘wait and see’ alternative—indefinitely deferring adoption of K.J. while she cycles through the foster care system—[was] not a viable one as it is contrary to the child's best interests." After acknowledging the preference in adoption proceedings for a fit unwed father who has grasped his opportunity interest, Judge Pasichow determined that L.M.J.’s parental rights could still be terminated if there was clear and convincing evidence that the proposed adoption was in K.J.’s best interest.¹ On December 20, 2016, she issued an Order affirming the decision of the magistrate judge. L.M.J. now appeals. The biological mother, C.J., did not file an appeal.

II. Standard of Review

"We review a trial court's determination in a proceeding to terminate parental rights (TPR) and waive a natural parent's consent to adoption for abuse of discretion." In re S.L.G ., 110 A.3d 1275, 1284 (D.C. 2015). "[O]ur task is to ensure that the trial court has exercised its discretion within the range of permissible alternatives, based on all relevant factors and no improper factor." Id. (internal quotation marks and citation omitted). Moreover, the trial court's decision must be "supported by substantial reasoning drawn from a firm factual foundation in the record." In re J.C.F. , 73 A.3d 1007, 1012 (D.C. 2013) (quoting In re C.L.O. , 41 A.3d 502, 510 (D.C. 2012) ). We treat "the magistrate judge's factual findings as the findings of the trial judge and review for abuse of discretion or a clear lack of evidentiary support. As to alleged errors of law, however, we review the record de novo , without deference to the judges below." In re C.L.O. , 41 A.3d at 510 (internal quotation marks and citation omitted).

III. The Presumption in Favor of a Natural Parent

In contested adoption cases where a parent seeks custody, we recognize a presumption that a child's best interest is served by placing her with her natural parent, provided the parent is not proven unfit. In re S.L.G ., 110 A.3d 1275, 1285 (D.C. 2015). "This presumption in favor of the natural parent is a strong one that reflects and reinforces the fundamental and constitutionally protected liberty interest that natural parents have in the care, custody, and management of their children." Id. at 1286 (citing Troxel v. Granville , 530 U.S. 57, 65-66, 68-69, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ).

Appellant primarily complains that the trial court did not properly apply this presumption — that it terminated his parental rights without first making a finding of unfitness.² To support his argument that the trial court skipped a crucial step, appellant cites our decision in In re Ta.L. , 149 A.3d 1060, 1081 (D.C. 2016) (en banc), where we stated "that the presumption in favor of a fit parent's right to raise his or her children must be rebutted by a finding of parental unfitness before the trial court can make the ultimate determination to terminate a biological parent's rights to raise his or her children." As we will demonstrate, however, this general requirement does not mean that every natural parent automatically qualifies for the presumption (sometimes called a preference).

The "mere existence of a biological link," Lehr v. Robertson...