In re TM

• Decision Date: 28 September 1995
• Docket Number: No. 92-FS-1576.,92-FS-1576.
• Citation: 665 A.2d 207
• Parties: In re T.M., Appellant.
• Court: D.C. Court of Appeals

665 A.2d 207

In re T.M., Appellant.

No. 92-FS-1576.

District of Columbia Court of Appeals.

Argued June 6, 1994.

Decided September 28, 1995.

Teresa R. Donohoe, Baltimore, MD, for appellant.

Mary Wilson, Assistant Corporation Counsel, Washington DC, with whom John Payton, Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellee.

Before WAGNER, Chief Judge,^* and FERREN and STEADMAN, Associate Judges.

WAGNER, Chief Judge:

This appeal arises out of a proceeding initiated on behalf of T.M., a minor child, by her guardian ad litem seeking termination of the parental rights of the child's mother, K.M., and two named putative fathers, J.C. and D.J. The trial court terminated the parental rights of the mother, but denied the petition with respect to the putative fathers "for lack of proof." Although the trial court's order does not elaborate further upon the basis for its ruling with respect to the named putative fathers, the transcript of the proceedings reveals that the trial court declined to consider termination with respect to J.C.'s and D.J.'s rights, if any, because it concluded that paternity, which had not been established, must be determined before parental rights can be terminated. Therefore, the court concluded that any putative father's rights should be addressed in any subsequent adoption proceeding. T.M. and the Corporation Counsel for the District of Columbia (the District) argue on appeal that the trial court erred in declining to terminate the "parental" rights of the putative fathers, both of whom had been duly served with process in the action. We agree, and reverse and remand for further proceedings consistent with this opinion.

I.

T.M. was born on December 6, 1989. When she was less than two months old, she was found abandoned on the sidewalk. On April 9, 1990, the child was adjudicated to be a neglected child pursuant to D.C.Code § 16-2301(9)(B) (1989).¹ The adjudication was based on a stipulation signed by her mother, K.M., in which she admitted that she had left the child with D.J. who in turn left the child on the sidewalk where the police found her. The paternity of the child had never been established. Initially, K.M. told authorities that J.C. was the father. However, a social worker in the case filed a report stating that on October 9, 1990, D.J. contacted her and said that he could be T.M.'s father, and if that were true, he would like to raise her. He admitted during the conversation that he left T.M. abandoned on the sidewalk due to his abuse of drugs and alcohol, but he said that he had since "been clean for several months, attends church and `has strong people' behind him." He stated that he wanted to attend a court review in the neglect case on November 15, 1990 and that he would submit to a blood test in order to determine whether he was the child's father. On November 1, 1990, the court ordered D.J., K.M., and T.M. to submit to a human leukocyte antigen (HLA) test to determine the child's parentage. See D.C.Code § 16-2343 (1989). However, D.J. did not appear for the HLA testing.

On June 19, 1991, T.M.'s guardian ad litem (GAL) filed a motion to terminate the parental rights of K.M. and the two putative fathers, J.C. and D.J. (TPR motion). In support of the motion, the GAL contended, inter alia, that T.M.'s "parents' demonstrated lack of interest in the child for a prolonged period of time indicates the parents' inability or unwillingness to care for or provide a stable home for the child." The GAL also stated that the man the mother identified as the father, J.C., denied paternity and that the other putative father, D.J., had not visited the child since July, 1990, and had failed to submit to HLA testing to determine paternity.

The court held a hearing on the TPR motion. T.M.'s counsel represented that J.C. was personally served with notice of the TPR proceeding, and that D.J. was given constructive notice by posting pursuant to court order.² Neither man appeared at the TPR hearing. At the commencement of the hearing, the court stated that it would not terminate the rights of a putative father without first establishing the actual paternity of the child and that the burden was on the child to establish the relationship of parent and child before it is terminated. The GAL urged the court as an alternative to terminate the rights of the putative fathers "conditionally." Reasoning that such rights could not be terminated "tentatively," the court adhered to the position that it could not terminate parental rights unless paternity was established first. The court also explained that termination as to any father or putative father could be accomplished in any subsequent adoption proceeding. Therefore, the court proceeded with the TPR hearing only as to the child's mother, K.M. The court terminated K.M.'s parental rights, finding that it was in the child's best interest.³ K.M. has not appealed from the court's ruling. T.M. appeals from the court's decision refusing to terminate the rights of her putative fathers, J.C. and D.J., and the District joins in that claim.

II.

T.M. and the District make essentially the same argument on appeal. They argue that the trial court erred in refusing to allow the motion for TPR to proceed against two putative fathers who had been properly served in the case. They contend that the trial court's decision rested upon two erroneous premises: (1) that a determination of paternity is required before the court can entertain a petition to terminate the parental rights of a party claiming to be the child's father; and, (2) that the rights of a putative father cannot be addressed in a TPR proceeding. We conclude that, consistent with the applicable statute, and to effectuate its purpose, the trial court has the authority to address the rights of a putative father in a TPR proceeding.

T.M.'s GAL filed on her behalf a motion to terminate parental rights under the provisions of D.C.Code §§ 16-2351 through -2365 (1989) (TPR statute). The TPR statute authorizes the District of Columbia government or the child, through a legal representative, to petition the court to terminate parental rights in a proceeding where the child has been adjudicated neglected, as T.M. was. See D.C.Code § 16-2354. The purposes of the statute are: "(1) to encourage stability in the life of the neglected child; (2) to ensure the recognition and enforcement of the constitutional rights of all parties; and (3) to increase the opportunities for prompt adoptive placement." In re A.B.E., 564 A.2d 751, 756 (D.C.1989); see also In re Baby Girl D.S., 600 A.2d 71, 87 (D.C.1991). The TPR statute authorizes the court to enter an order permanently terminating the parent-child relationship if it finds by clear and convincing evidence that it is in the "best interests of the child." D.C.Code § 16-2353(a).

While the statute does not define the word "parent," it defines the parent and child relationship as follows:

"parent and child relationship" includes all rights, powers, privileges, immunities, duties and obligations existing under law between a parent and child, including rights of inheritance. The words apply equally to every child and every parent regardless of the marital status of the parents of the child.

D.C.Code § 16-2352(a)(1). A question which arises as a result of the parties' arguments is whether the rights of a putative parent are among those covered by the statute. The nature of a putative father's rights and the statutory purpose suggest that they are included. It is now recognized that a putative father has a right to "grasp" his "opportunity interest" in claiming the obligations of being a parent. See Lehr v. Robertson, 463 U.S. 248, 262, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614 (1983); see also M.N.M., 605 A.2d 921, 926 (D.C.), cert. denied, ___ U.S. ___, 113 S.Ct. 636, 121 L.Ed.2d 567 (1992). As the Supreme Court explained in Lehr

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.

463 U.S. at 262, 103 S.Ct. at 2993-94.

To assure that a putative father has an opportunity to assert such right, under certain circumstances, he is entitled to due notice of the proceedings. See, e.g., In re M.N.M., supra, 605 A.2d at 923. The right of a putative father to notice of a pending adoption proceeding does not depend upon proof that the putative father is in fact the biological father. Id. at 926 (putative father entitled to notice of adoption, although paternity not yet established); see also Appeal of H.R., 581 A.2d 1141, 1165 (D.C.1990) (opinion of Ferren, J.), cert. denied, ___ U.S. ___, 115 S.Ct. 58, 130 L.Ed.2d 16 (1994). Unless a putative father is apprised that proceedings are pending affecting the best interest of a child of whom he claims to be the natural parent, he may never have a meaningful opportunity to be heard on his claim or to assert his right to be heard on the question of the child's best interest. See id. at 1161 (citing Lehr, supra, 463 U.S. at 248, 103 S.Ct. at 2986).⁴

In an adoption proceeding, the putative father may be required to establish paternity before he can contest the adoption or require the court to consider his opinion as to the child's best interest. See Lehr, supra, 463 U.S. at 262, 103 S.Ct. at 2993; see also M.N.M., supra, 605 A.2d at 922 n. 1. Similarly, as the trial court correctly observed in this case, it is essential to establish the relationship of father and son...