Petition of R.M.G.

• Decision Date: 29 December 1982
• Docket Number: No. 79-747.,79-747.
• Parties: In the Matter of the Petition of R.M.G. and E.M.G. Appeal of J.H., Jr., et al.
• Court: D.C. Court of Appeals

454 A.2d 776

In the Matter of the Petition of R.M.G. and E.M.G. Appeal of J.H., Jr., et al.

No. 79-747.

District of Columbia Court of Appeals.

Argued January 29, 1981.

Decided December 29, 1982.

COPYRIGHT MATERIAL OMITTED

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Julian Karpoff, Arlington, Va., with whom Bobby B. Stafford, Alexandria, Va., was on brief, for appellants.

Benjamin F. Saulter, Washington, D.C., for appellees.

Before NEWMAN, Chief Judge, and MACK and FERREN, Associate Judges.

FERREN, Associate Judge:

In this case of competing petitions for adoption of a black child, we review a trial court decision granting the petition of the child's black grandparents and denying the petition of her white foster parents. Applying all relevant factors, the trial court found both families suitable to adopt the child, but concluded that the race factor tipped the scales in favor of the black grandparents.

Although race, among other factors, can be relevant in deciding between competing petitions for adoption, the statute expressly incorporating that factor, as well as the trial court's application of it, must survive "strict scrutiny," in order to comport with the equal protection requirement of the Constitution. I conclude that the statute on its face withstands constitutional challenge but that the trial court's application is not sufficiently precise to satisfy the Constitution. The judgment accordingly must be reversed and the case remanded for further proceedings.

I. STATEMENT OF FACTS AND PROCEEDINGS

D. was born September 22, 1977, to unwed, teenage, black parents. By that time, her father lived in Cleveland, Ohio; her mother, in Washington, D.C. In early January 1978, D.'s mother decided to give her up for adoption and signed papers relinquishing parental rights. She did not tell the natural father. Nor did she tell his mother and stepfather, appellees R.M.G. and E.M.G.

On January 6, 1978, the Department of Human Resources placed D. with foster parents, appellants J.H. and J.H., who are white. The foster mother realized almost immediately that D. was not healthy. D. was suffering from nausea and diarrhea and, although more than three months old, weighed only 10 pounds. D., moreover, was extremely lethargic and, according to Dr. Robert Ganter, a child psychiatrist, showed signs of mental retardation. During the next year, however, D.'s foster parents nurtured her to good physical and mental health.¹

On April 26, 1978, a few months after D. came to live with them, J.H. and J.H. filed a petition for adoption. Initially, the Department of Human Resources recommended approval. At the foster mother's insistence, however, the Department notified the child's natural father of the proposed adoption. He objected. His own mother and stepfather, R.M.G. and E.M.G., then filed a petition to adopt D. The natural father consented. The Department of Human Resources studied the grandparents' home and, withdrawing its earlier support of the foster parents' petition, recommended approval of the grandparents' petition.

At the hearing on both petitions beginning on April 27, 1979, the court received the following evidence: The foster parents have four other children — three natural and a fourth, a black male, by adoption. They are a military family, living on a racially integrated military base with racially integrated schools. When asked about the problems of raising a child of another race, the foster mother testified that she and her husband had begun "an affirmative program" with their adopted male child. For example, she had obtained pre-school black history and coloring books for their son. She testified, "I make sure he knows that he's not white. I don't care how long he lives with us, he's black, and he's beautiful, and he's ours."²

The child's natural grandmother and her husband also testified at the hearing. The grandmother has eight children (all by a previous marriage) of whom the youngest was 14 at the time of the hearing. She also has nine grandchildren, two of whom reside at her home (one is a few months younger than D.). Although the grandmother is employed outside the home, she testified that she would take a leave of absence to be with the child. Both the grandmother and her husband added that they wanted to raise D., that they were able to care for her and that they desired to show her their love.

Doris Kirksey, a social worker, testified on behalf of the Department of Human Resources. She recommended D.'s placement with her grandparents "based on the premise that the best place for a child is . . . with blood relatives." Ms. Kirksey discounted any harm that might come to D. from removal from her foster family. She based her assessment, in part, on the advice of her agency psychiatrist, Dr. Frances Welsing.

The trial court asked Dr. Welsing to testify in person. Her position, in a nutshell, was that cross-racial adoption always will be harmful to a child and — at the very least — should be discouraged. She emphasized that a non-white child would encounter particular difficulties in a white home upon reaching adolescence. Dr. Welsing made her recommendation to the Department of Human Resources without having met the J.H. family. Most of Dr. Welsing's testimony concerned the problems of cross-racial adoption in a broad societal context.

In response to Dr. Welsing, the foster parents called their own expert, Dr. F. Jay Pepper. He identified several factors germane to adoption. He agreed that race should be considered, but only with respect to the attitudes of the particular family petitioning for adoption. Like Dr. Welsing, Dr. Pepper had not met J.H. and J.H.

After reciting the procedural history of the case, the trial court made the following findings and conclusions:

Colonel H_____ and his wife, Caucasians, presently have four children, one of whom is a Black adopted child. They are a stable, middle-income, affectionate family unit who will likely travel to some degree because of the father's military career. They clearly love the child in question.

The G_____ family is a stable Black family of modest means. Mr G_____ is the second husband of Mrs. G_____, her first husband having died. She has raised eight children and also has nine grandchildren. At least two of the grandchildren reside in the G_____ home. Mr. and Mrs. G_____ are both employed. If the baby is placed in her care, she plans to take a leave of absence to be with the child. The Court is impressed with the affectionate nature and willingness of the G_____ family to sacrifice.

In any adoption, the paramount concern is the best interests of the child. In that regard, the Court should consider an array of factors. Among them are:

1. The age of the child.

2. The stability of the adopting family and reasons for seeking an adoption.

3. Financial and other resources available to the adopting family.

4. Existence of love and affection between the persons involved.

5. Blood relationships, if any.

6. Race.

7. Any other significant factors. It is equally important that the Court weigh these factors in terms of past, present and future.

It is seen that the child is very young — less than two years old. In her young life she has already undergone significant and probably traumatic changes. According to expert testimony, these changes or shifts are permanently recorded by the mind. Similarly, it is agreed that sudden changes of the family setting or other vital parts of one's environment can cause uncertainty, emotional distress and a sense of insecurity. Having regard for the history of this case, it is predictable that another change in the life of this child will cause some degree of injury or harm to her.

The pivotal question becomes, given the available alternatives, evaluated now and for the future, what decision is prudent as being in the child's best interests? Some aspects of this case are clear. Both families have shown love and concern for the child. Both families are reasonably stable; the H_____ family has greater financial resources.

With regard to blood relationships, the evidence indicates that it is a factor but certainly not conclusive. Thus, in the absence of love, affection, stability, and other supportive traits, blood relationship alone confers no special right of parenting. Yet the question should also be weighed in the interest of family tradition, culture and other intangibles.

The question of race is important. It is interesting that all the experts who appeared in this matter agreed that not enough work has been done on the subject as it pertains to adoption. However unpleasant, it would seem that race is a problem which must be considered and should not be ignored or minimized. Conversely, there are not conclusive absolutes to be drawn on the basis of race. It would seem, however, entirely reasonable that as a child grows older the ramifications of this problem would increase. At a later stage, notwithstanding love and affection, severe questions of identity arising from the adoption and race most probably would evolve. In the world at large, as the circle of contacts and routines widens, there are countless adjustments which must be made. Given the circumstances in this case, the child's present status is relatively secure and carefree. The future, in each of its stages-childhood, adolescence, young adulthood, etc. — would likely accentuate these vulnerable points. The Court does not conclude such a family could not sustain itself. Rather the question is, is there not a better alternative? The Court is concerned that little medical or scientific attention has been devoted to this problem. The Court is concerned that, without fault, the H_____s stand to lose a beloved member of their family. However, our test remains the best interest of the child. It is believed that applying all of the factors to be considered, and evaluating the question in terms of past, present and future, that the appropriate alternative...