In re A.T.J. & L.D.J.

I
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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 17-FS-376

                        IN RE PETITION OF A.T.J. AND L.D.J.,

                                L.M.J., APPELLANT.

                          Appeal from the Superior Court
                           of the District of Columbia
                                   (ADA-86-13)

                       (Hon. Sean C. Staples, Trial Judge)
                   (Hon. Heidi M. Pasichow, Reviewing Judge)

(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.
                                         2

     Before BECKWITH, Associate Judge, and STEADMAN and FISHER, * Senior
Judges.

      Opinion for the court by Senior Judge FISHER.

      Dissenting opinion by Associate Judge BECKWITH at page 23.

      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.




      *
         Judge Fisher was an Associate Judge of the court at the time of argument.
His status changed to Senior Judge on August 23, 2020.
                                          3

      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
                                           4

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.”
                                         5

      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
                                         6

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
                                          7

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


      1
         Judge Pasichow quoted from In re Baby Boy C, 

630 A.2d 670

, 682 (D.C.
1993) (Although the District of Columbia’s adoption statute incorporates “a
preference for a fit unwed father who has grasped his constitutionally protected
opportunity interest . . . [t]his preference may be overridden if it is shown by clear
and convincing evidence that the proposed adoption is in the best interests of the
child . . . for that interest is the paramount consideration.”) (alterations and
omissions in original).
                                          8

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

(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
                                          9

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, 

463 U.S. 248

,

261 (1983), does not entitle a parent to the presumption. Instead, such a link

presents an opportunity which the parent must grasp.

Id. at 261-62;

Appeal of




      2
         Two important decisions of this court stressing the importance of explicit
or implicit findings of unfitness were issued after the magistrate judge’s findings of
fact and conclusions of law were filed. See In re S.L.G., 

110 A.3d 1275

(D.C.
2015) (decided March 5, 2015); In re Ta.L., 

149 A.3d 1060

(D.C. 2016) (en banc)
(decided December 8, 2016).
                                          10

H.R., 

581 A.2d 1141

, 1160 (D.C. 1990). 3 After focusing more closely on the

nature of the presumption, we hold that appellant should not benefit from it for two

separate reasons:      he does not seek “an actual relationship of parental

responsibility,” 

Lehr, 463 U.S. at 260

, and he failed to grasp his opportunity to be a

father.



             A. Appellant Does Not Benefit From the Parental Presumption
          Because He Does Not Seek To Assume the Responsibilities of a Parent.




      Undergirding this preference is the recognition that a biological parent has

the “right to raise” or “parent his or her child.” In re 

Ta.L., 149 A.3d at 1081

(emphasis added) (citing Stanley v. Illinois, 

405 U.S. 645

, 651 (1972)). Thus, we

consistently characterize the preference as a “presumptive right to custody” or a

“custodial preference,” indicating that a parent must seek actual or legal custody of

      3
          In 

Lehr, 463 U.S. at 262

, the Supreme Court distinguished between the
rights of a parent with a mere biological connection to the child and those of a
parent linked to the child by both biology and action: 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.
                                          11

his child in order to benefit from it. See, e.g., Appeal of 

H.R., 581 A.2d at 1173

(Ferren, J., concurring) (“[A]n unwed, noncustodial father who has not lost his

opportunity interest has maintained a sufficient connection with his child to receive

the custodial preference—the presumptive right to custody . . . .”); In re S.M., 

985

A.2d 413

, 417 (D.C. 2009) (describing this preference as “a custodial preference

for a fit parent”). In other words, “the rights of the parents are a counterpart of the

responsibilities they have assumed.” 

Lehr, 463 U.S. at 257

.



      The Supreme Court vividly illustrated this principle in Quilloin v. Walcott,

434 U.S. 246

(1978), where the natural father argued that “he was entitled as a

matter of due process and equal protection to an absolute veto over adoption of his

child [by the husband of the child’s mother], absent a finding of his unfitness as a

parent.”

Id. at 253.

Unlike appellant, Mr. Quilloin was not a stranger to his child;

he had provided some financial support and had visited him on many occasions.

Id. at 251.

He “attempted to block the adoption and to secure visitation rights, but

he did not seek custody or object to the child’s continuing to live with appellees.”

Id. at 247.


      The Court recognized that “the relationship between parent and child is

constitutionally protected” and “[i]t is cardinal . . . that the custody, care and
                                          12

nurture of the child reside first in the parents . . . .”

Id. at 255

(emphasis added).

However, this was “not a case in which the unwed father at any time had, or

sought, actual or legal custody of his child” and the result of adoption by the

child’s stepfather would “give full recognition to a family unit already in existence

. . . . ”

Id. at 255

. The Court held that the natural father’s constitutional rights

were not violated by granting the adoption over his objection, based on a “best

interests of the child” standard, without first finding him unfit.

Id. at 254-56.


      Similar to the natural father in Quilloin, “[appellant] has not asked for K.J.

to be placed in his care and instead opposes the adoption because it may jeopardize

his ability to form a relationship with K.J.” But Quilloin teaches that this is not

enough. To successfully oppose an adoption petition, a biological parent must do

more than express a desire “to form a relationship” with his offspring; he must

seek to shoulder “significant responsibility with respect to the daily supervision,

education, protection, or care of the child.”

Id. at 256.

   We agree with our

dissenting colleague that cohabitation is not the only way to participate in raising

or parenting a child, post at 34 n.14, but appellant has not even presented a plan for

accepting “some measure of responsibility for the child’s future.” Lehr, 

463 U.S.
13

at 262. 4 For this reason alone, he is not entitled to the presumption in favor of a fit

natural parent. Thus, there was no “need for a threshold determination,” In re

S.L.G., 110 A.3d at 1288

, that the parental presumption had been rebutted.



                  B. Appellant Does Not Benefit from the Presumption
                  Because He Did Not Grasp His Opportunity Interest.



       The trial court “will invoke the presumption or preference in favor of a fit,

unwed, noncustodial father only when the court finds that he timely grasped his

constitutional ‘liberty’ interest—now commonly called his ‘opportunity interest’—

protected by due process.”        In re 

C.L.O., 41 A.3d at 511

(emphasis added;

footnotes omitted); see also In re 

S.M., 985 A.2d at 417

n.7 (“[N]oncustodial

fathers are entitled to the presumption in favor of a fit parent only after they have

‘grasped’ their ‘opportunity interest’ . . . .”) (citation omitted).



       A biological father who does not grasp this opportunity does not benefit

from the parental presumption and therefore is not entitled to the finding of

unfitness required to rebut it. See In re S.G., 

581 A.2d 771

, 787-88 (D.C. 1990)

       4
          Although appellant “asked that his grandmother and aunt, who live
together, be considered as a placement option for K.J.,” “the grandmother stated
she did not want to be considered as a placement” and appellant offered no
alternatives.
                                         14

(Rogers, C.J., concurring) (“[W]hat might have presented a problem had the

natural father grasped his opportunity interest, namely, that the judge never made

any findings regarding the father’s fitness . . . , is not present here.”). Although

neither the magistrate judge nor the associate judge expressly decided whether

appellant had grasped his opportunity interest, a remand is not required.

“[B]ecause the question of whether [appellant] grasped his opportunity interest is a

question of ultimate fact, meaning a question of law, we are empowered to answer

that question by marshaling subsidiary facts found by the magistrate judge (to

which we defer in the absence of clear error).” In re 

C.L.O., 41 A.3d at 519

(Ferren, J., concurring).   Based on our case law and the facts found by the

magistrate judge, we conclude as a matter of law that appellant did not grasp his

opportunity interest.



      Appellant argues to the contrary—that he “did all he could reasonably be

expected to do in order to grasp his opportunity interest.” For example, appellant

claims, without offering any proof (recall that appellant did not testify), that after

first being told that he was K.J.’s father (sometime in 2010 or 2011), he attempted

to contact the agency to get information about her. Appellant also argues that,

once a paternity test confirmed that he was K.J.’s father (in 2014), he “did all he

could do under the circumstances” to assert his parental rights and meet K.J. He
                                          15

met with K.J.’s social worker, Rochelle White, and requested visits with his

daughter. After visitation was denied because K.J. did not want to meet him,

appellant wrote letters to K.J., hoping to develop a relationship with her.



        Our cases demand much more. “[A] natural father who fails promptly to

assert his opportunity interest in developing a relationship with his child may

forever lose that interest.”     Appeal of 

H.R., 581 A.2d at 1161

(Ferren, J.,

concurring) (discussing 

Lehr, 463 U.S. at 261-63

(emphasis added)).



        Previous statements by this court indicate that a father’s opportunity to grasp

his interest could start as soon as “he learn[s] of the pregnancy and birth.” In re

C.L.O., 41 A.3d at 522

& n.17 (Ferren, J., concurring) (stating father should have

asserted his custodial rights “as soon as he learn[ed] of the pregnancy and birth”

and knew it “might have been a possibility” the child was his). However, the

record does not establish that appellant knew about C.J.’s pregnancy, and C.J.

testified that she lost contact with him during the first few years of K.J.’s life. On

this record we therefore do not fault appellant for failing to act as soon as K.J. was

born.
                                          16

      Nevertheless, in 2010 or 2011 C.J. met appellant “by chance in the

community and told him he was K.J.’s father.” During this meeting she gave

appellant a picture of K.J. which he kept. Despite learning that he had a daughter,

the trial court found, appellant “did not ask [C.J.] to meet or otherwise contact

K.J.” Appellant also received notice of the pending adoption proceeding, which

named him as K.J.’s father, on September 5, 2013. However, it was not until July

2014, after he received the results of the paternity test, that appellant first reached

out to the agency and asked for information about K.J. His counsel claims that

appellant called the agency multiple times between 2011 and 2014, but appellant

presented no evidence of these contacts. Although appellant expressed a desire to

form a relationship with K.J. after the paternity test, this three-year gap indicates

that appellant did not promptly assert his opportunity interest. 5




      Even if appellant reached out to the agency earlier than 2014, and even if his

delay could be excused because of the initial uncertainty about the identity of

K.J.’s father, we still conclude that appellant has not “done all that he could

reasonably have been expected to do under the circumstances to pursue [his

      5
         In her opening statement during trial, appellant’s counsel indicated that
appellant’s “visitation was limited by the fact that he was not biologically
determined to be K.J.’s father.” However, the trial court determined “there was no
evidence presented at trial of such a limitation.”
                                          17

opportunity] interest.” Appeal of 

H.R., 581 A.2d at 1162-63

; see also In re J.F.,

615 A.2d 594

, 597 (D.C. 1992) (natural father grasped his opportunity interest

because he “provided a home for [his son] . . . during the first part of his life” and

“continued to provide financial support” even after mother left and took the child

from father’s home); In re M.N.M., 

605 A.2d 921

, 926-27 (D.C. 1992) (where

unwed teenage mother took newborn child to the District of Columbia, placed her

for adoption, and would not reveal child’s location, father timely “asserted his

paternity and the right to assume the obligations of fathering” his child by

“pursu[ing] the only means available to him to learn the child’s whereabouts and

prevent an adoption—filing [a paternity and custody] suit” in St. Louis one week

after the child’s birth). Compare In re W.D., 

988 A.2d 456

, 459-62, 465 (D.C.

2010) (holding that mother did not grasp her opportunity interest because she was

not a “consistent [] presence in [her daughter’s] life,” did not “assist with . . . [her

daughter’s] care,” and did not appear at the adoption hearing), with In re A.C., 

597

A.2d 920

, 927 (D.C. 1991) (although the natural father had met the child and

appeared at multiple hearings, he had failed to grasp his opportunity interest

because he “never seized the full panoply of interactions, characteristics and

attendant responsibilities which define the parent and child relationship”) (internal

quotation marks omitted).
                                          18

      The trial court found that appellant “has not played any role in [K.J.’s] life.”

It also noted that appellant did “not want to care for K.J. at this time” and “argues

that the adoption should not be granted because it may jeopardize his ability to

form a relationship with [her].” No evidence showed that appellant had physically,

emotionally, or financially cared for K.J. in any way. Indeed, at the time of the

adoption trial, appellant had never even met eight-year-old K.J. and was “in the

process of writing letters to introduce himself to her.”



      While the Supreme Court has established that a court may not terminate the

rights of a biological father contesting an adoption without first giving him an

opportunity to be heard, Stanley v. Illinois, 

405 U.S. 645

, 655 (1972), in this case,

appellant has no grounds on which to complain that he suffered a due process

violation. He was given notice of the trial, and attended most of it, and the court

appointed counsel to represent him. Nevertheless, appellant did not testify, present

witnesses, or express any desire, much less a plan, to assume his responsibilities as

a parent.



      It is this latter failure that conclusively shows appellant’s failure to grasp his

opportunity interest. We agree with appellees: “If there was ever a time to assert

your interests, the adoption trial was it, but L.M.J. failed to do so.” To be sure,
                                          19

appellant’s counsel forcefully argued that he “wants the adoption to be denied so

that . . . he could work on developing a relationship with his child.” But opposing

adoption (and the consequent termination of parental rights) is not the same thing

as grasping the opportunity to be a parent to your child. And counsel candidly

acknowledged “we don’t know where it will go[.]” See In re J.L., 

884 A.2d 1072

,

1078 (D.C. 2005) (“wait and see” approach strongly disfavored by public policy

and federal legislation).



      Nor is it enough that appellant may have “had a genuine interest” in getting

to know his daughter. Post at 36. Based on the facts found by the magistrate judge

and the cases discussed above, we conclude as a matter of law that appellant failed

to grasp his opportunity interest. 6 For this reason as well, he was not entitled to the



      6
         In In re D.S., 

88 A.3d 678

, 692 (D.C. 2014), we remanded because neither
the magistrate judge nor the associate judge had fully considered the parental
presumption when deciding to commit the children to the care of the Child and
Family Services Agency.

Id. at 697.

Furthermore, the record, “with its many
unanswered questions and yet-to-be-investigated facts, d[id] not demonstrate that
the court could have readily made . . . findings” that the natural father had failed to
grasp his opportunity interest or that he was an unfit parent. The record indicated
instead that the “father had been involved in the children’s lives, that the children
spent weekends with him, that they viewed themselves as having two homes,” and
that the father “repeatedly requested immediate release of [the] children into his
custody.”

Id. at 682, 692.

In contrast to appellant’s case, the record in In re D.S.
demonstrated that the natural father had played a significant role in the children’s
lives and clearly desired to take custody of them.
                                           20

parental presumption or to the finding of unfitness ordinarily required to rebut it. 7



                      IV. Adoption Was in K.J.’s Best Interest.



      Finally, appellant argues that, regardless of whether he was entitled to the

presumption in favor of a fit parent, the trial court still lacked “a sufficient basis on

which to base the waiver of [his] consent” and abused its discretion by granting the

J.s’ petition to adopt. We disagree. Although appellant had nothing more than an

inchoate relationship with K.J., he received notice, a hearing, representation by

counsel, and the full benefit of our statutes governing adoption and the termination

of parental rights.



      A petition for adoption generally cannot be granted without the agreement of

both parents, but consent may be waived if a parent withholds it contrary to the

best interest of the child. D.C. Code § 16-304(e). “Because granting an adoption

without the natural parent’s consent necessarily terminates the parent’s rights,” the


      7
         “Broadly speaking, . . . fitness refers to the parent’s intention and ability
over time to provide for a child’s wellbeing and meet the child's needs. The
question of fitness turns, in other words, on ‘whether the parent is, or within a
reasonable time will be, able to care for the child in a way that does not endanger
the child's welfare.’” In re 

S.L.G., 110 A.3d at 1286-87

(quoting In re Rashawn
H., 

937 A.2d 177

, 191 (Md. 2007)).
                                          21

court must weigh the termination of parental rights (“TPR”) factors listed in D.C.

Code § 16-2353(b). In re 

Ta.L., 149 A.3d at 1072

.



      “After careful consideration of these factors,” Magistrate Judge Staples

found clear and convincing evidence that appellant was “withholding [his]

consent[] to the proposed adoption contrary to the best interests” of K.J. 8

Appellant had neither met K.J. nor “played any role in her life” and did “not want

to care for [her] at this time.” Conversely, the J.s provided the “only real stability”

K.J. had ever known and removing K.J. from their home would “cause [her] severe

emotional trauma.” Moreover, K.J. did not desire to meet appellant and wanted to

be adopted by the J.s. Judge Pasichow also noted on review that, “while 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 [K.J.’s] best

interests.” See, e.g., In re J.L., 

884 A.2d 1072

, 1078 (D.C. 2005); In re L.L., 

653

A.2d 873

, 887-88 (D.C. 1995).




      8
        “Where a biological parent declines to consent to a proposed adoption, the
prospective adoptive parent must ordinarily show by clear and convincing
evidence that consent is being withheld contrary to the child’s best interest.” In re

C.L.O., 41 A.3d at 511

(citing In re J.G., 

831 A.2d 992

, 999 (D.C. 2003)).
                                         22

       A court may enter a final decree of adoption when it is satisfied that the

factors set out in D.C. Code § 16-309(b) (2012 Repl. & 2020 Supp.) are met.

Judge Staples found that the J.s were “fit and proper people to adopt” K.J. and that

K.J. was “suitable for adoption by” the J.s. The J.s “have remained a constant part

of [K.J.’s life] for more than 5 years” and have “provided the only real stability for

[her] in a life otherwise marked with indifferent and inconsistent care.” Judge

Staples also analyzed the TPR factors and determined that adoption by the J.s was

in the best interests of K.J.



       The J.s are “fierce advocates” for K.J.’s well-being and love her

“immensely.” They also work with K.J.’s “medical and mental health providers to

provide consistent and appropriate services” for her special needs. The trial court

found that K.J. had “significant emotional needs” and that the J.s had the “ability to

meet those needs” and were “physically and emotionally healthy and able” to care

for K.J. K.J. is “fully integrated into the home of Mr. and Mrs. J.” and considers

their “biological children to be [her] brothers and the J.’s parents to be [her]

grandparents.” On this record we readily conclude that the Superior Court did not

abuse its discretion by terminating appellant’s parental rights and granting the J.s’

adoption petition.
                                         23



                                  V. Conclusion



      Appellant was not entitled to the presumption in favor of a fit parent or to

the finding of unfitness ordinarily required to rebut that presumption. There is

clear and convincing evidence that the waiver of appellant’s consent and adoption

by the J.s were in the best interests of K.J. Therefore, the judgment of the Superior

Court is hereby.


                                              Affirmed.




      BECKWITH, Associate Judge, dissenting: The trial court in this case

terminated L.M.J.’s parental rights with respect to his biological daughter, K.J.,

based solely on the statutory best-interest factors—that is, on the ground that

L.M.J. was withholding his consent to the foster parents’ adoption of K.J. contrary

to K.J.’s best interest. 1 It reached this conclusion without making the fitness

finding to which a biological parent facing termination of rights is constitutionally




      1
          D.C. Code § 16-2353(b) (2012 Repl.).
                                          24

entitled, absent exceptional circumstances. 2 The majority, while acknowledging

the trial court’s failure to evaluate and rule on L.M.J.’s fitness, nonetheless affirms

the termination of L.M.J.’s parental rights because, in my colleagues’ view, fit or

not, L.M.J. failed to grasp the “opportunity that no other male possesses to develop

a   relationship    with    his   offspring”     and    therefore    had    no    such

constitutionally protected interest in the first place. Ante at 10 & n.3 (quoting

Lehr v. Robertson, 

463 U.S. 248

, 262 (1983)).            The majority reaches this

conclusion even though, as with fitness, the trial court did not rule on the

opportunity-interest issue either and did not question that L.M.J. was fit to

parent K.J. or that he had grasped that interest. Because the majority sidesteps

the constitutional protection for fit parents by imposing a stringent opportunity-

interest condition that was not the basis of the trial court’s ruling and that is a

mismatch for the circumstances of this case, I respectfully dissent from the

majority’s decision to affirm the termination of L.M.J.’s parental rights.



       This case raises questions about the consistent application of our doctrines

that allow a court to grant an adoption over a biological parent’s objection, without

      2
         In re Ta.L., 

149 A.3d 1060

, 1081–83 (D.C. 2016) (en banc); see also In re
J.B.S., 

237 A.3d 131

, 143 (D.C. 2020) (en banc) (stating that “parental ‘fitness,’”
though not statutorily defined, “refers to the parent’s intention and ability over time
to provide for a child’s wellbeing and meet the child’s needs”) (quoting In re
S.L.G., 

110 A.3d 1275

, 1286–87 (D.C. 2015)).
                                         25

a finding that the parent was unfit, after determining as a threshold matter that the

parent had surrendered whatever liberty interest he had in raising his child. The

well-known “Baby Richard” and “Baby Jessica” cases exemplify the sort of

traumatic result that can occur when a presumptively fit and largely blameless

biological parent who has never met his child appears late in the game seeking to

scuttle or even delay an adoption, and when a court honors that parent’s right to

withhold consent to that adoption. 3 The circumstances here—particularly the signs

in the record that L.M.J. and the foster parents would likely allow each other to

maintain or develop a relationship with K.J. regardless of the result at trial—make

this case less potentially dramatic than the Baby Richard and Baby Jessica cases.

But like those cases, this case underscores the tension between the imperative of


      3
         In these two cases, courts ultimately removed children from the adoptive
parents’ care—despite persuasive arguments that adoption was in each child’s best
interest—and placed them with their fit biological fathers who had previously been
out of the picture. In the Interest of B.G.C., 

496 N.W.2d 239

, 241, 245 (Iowa
1992) (ordering a transfer of custody to the newly discovered biological father,
even though the adoptive couple had custody “virtually from the time of [the
child’s] birth” and had “provided exemplary care for the child”); In re Petition of
Doe, 

638 N.E.2d 181

, 182 (Ill. 1994) (concluding that where the father had not
learned of his newborn child’s existence until after adoption proceedings began,
“the father had no opportunity to discharge any familial duty” and his “preemptive
rights to [his] own children” could not yet be terminated on best-interest-of-the-
child grounds);

id. at 185

(McMorrow J., concurring) (quoting In re Petition of
Doe, 

627 N.E.2d 648

, 653 (Ill. App. Ct. 1993)) (“[T]he only parents that [the child]
has ever known are John and Jane Doe. . . . [H]e is totally unaware of the
existence of his biological parents.”) (cleaned up).
                                         26

finality for children who may have spent years in the foster-care system 4 and a

biological parent’s fundamental constitutional right to have his parental rights

terminated only upon a finding that he is unfit to parent his child. In re 

Ta.L., 149

A.3d at 1081

–83; see also Santosky v. Kramer, 

455 U.S. 745

, 753 (1982); Stanley

v. Illinois, 

405 U.S. 645

, 651–52 (1972).



      Although adoption challenges by a fit parent who has never met his child are

not common, their potential for harsh-seeming consequences has nonetheless

prompted a number of proposals that seek to mitigate such outcomes while still

respecting biological parents’ constitutional rights to develop and maintain

relationships with their children.     Some states have created putative father

registries by which a father’s legal rights—such as the right to notice of an

impending adoption of his biological child—are conditioned on his filing a claim

of possible paternity with the state’s registry. See, e.g., Lehr, 

463 U.S. 248

. One

scholar has proposed a type of adoption that is accomplished without terminating

the rights of biological parents in certain limited circumstances. See David D.

Meyer, Family Ties: Solving the Constitutional Dilemma of the Faultless Father,

      4
         See In re M.N.M, 

605 A.2d 921

, 925 (D.C. 1992) (“This case presents a
conflict between the powerful demand for finality in adoption proceedings
reflected in D.C. Code § 16-310 and a serious apparent defect in the adoption
order, namely, the failure to give notice of the pendency of the adoption
proceedings to the putative natural father.”).
                                           27

41 Ariz. L

. Rev. 753, 813–22 (1999). 5 And a New York Court of Appeals judge

articulated a judicious balancing approach in a case in which a blameless

biological father sought to unravel a 10-month-old adoption.          In an oft-cited

concurrence in Robert O. v. Russell K., 

604 N.E.2d 99

(N.Y. 1992), Judge Vito

Titone determined that although the late-arriving biological father “had no realistic

opportunity to manifest his parental commitment and, accordingly, cannot be

treated as though he knowingly relinquished that opportunity,” that interest

“simply cannot be accommodated without sacrificing the paramount State interest

in finality.”

Id. at 106–07

(Titone, J., concurring). 6



      In the absence of such legislative initiatives or pointed case law, we are left

to apply our law as it exists. That normally means that unless L.M.J. was found to

      5
          In this alternative model of adoption, “the adoptive parents would gain
custody, full decision-making authority over the child, and full status as parents
while the biological parent would retain a right to visit and communicate with the
child but not to seek custody except under exceptional circumstances.”

Id. at 822.
6

          Judge Titone proposed in his concurrence that the court should have
recognized that the father had a “constitutionally cognizable interest in a parental
relationship with his biological child,” but weighed that interest against the state’s
countervailing interest in ensuring the finality of adoptions.

Id. As one scholar

pointed out, “both Justice Titone and Justice Stevens [in his dissent in Caban v.
Mohammed, 

441 U.S. 380

(1979)] seem to suggest that the better view in some of
these cases is that the rights of the biological father can be overridden, not that the
biological father simply does not have protected rights.” Mark Strasser, The Often
Illusory Protections of “Biology Plus:” on the Supreme Court’s Parental Rights
Jurisprudence, 13 Tex. J. on C.L. & C.R. 31, 63 (2007).
                                             28

be unfit, he had a “constitutionally cognizable interest” 7 in his relationship with

K.J., and that “parent and child relationship” should not have been “completely

sever[ed] and extinguishe[d]” through the termination of his parental rights. See

D.C. Code § 16-2352. If there is a question as to his fitness, or if, as here, the trial

court granted an adoption and terminated parental rights without first determining

that the biological parent was unfit, this court should remand to allow the trial

court to hold a fitness hearing. See, e.g., In re 

S.L.G., 110 A.3d at 1290

–91. While

this court has allowed for the possibility of “truly exceptional circumstances” in

which a parent’s rights might be terminated without a fitness determination, see In

re 

Ta.L., 149 A.3d at 1088

, no one is suggesting this case rises to whatever level

that may be, see In re 

S.L.G., 110 A.3d at 1291

(Newman, J., concurring) (stating

that his “fertile imagination” was “not able to postulate a realistic factual situation

where a ‘fit’ parent can be properly deprived of parental rights based on ‘the best

interest of the child’”); see also In re J.B.S., 

237 A.3d 131

, 143 (D.C. 2020) (en

banc).



         The majority here avoids giving effect to a biological parent’s right to a

fitness finding by deciding that L.M.J. had no liberty interest in developing a

relationship with his child to begin with. Even setting aside the fact that the trial

         7
             See Robert 

O., 604 N.E.2d at 106

(Titone, J., concurring).
                                          29

court did not rule on opportunity-interest grounds, the doctrine has no coherent

application in the circumstances of this case and amounts to an end run around the

presumption in favor of a fit biological parent. 8



      There is a good reason—in fact many good reasons—the trial court in this

case appeared to assume that L.M.J.’s opportunity interest remained intact. 9 For

four years, from the beginning of the neglect case in 2009 until after the adoption

proceedings commenced in 2013, K.J.’s biological mother, C.J., had maintained

      8
           Professor Meyer observed that although many states have sought to
facilitate adoptions by expanding concepts like abandonment and “step[ping] up
their demand on unwed fathers who wish to assert parental rights,” he doubted that
courts would “permit this strategy to effect an end-run around the constitutional
‘unfitness’ requirement.” 

Meyer, supra, at 788

(discussing those courts that “have
held that the Constitution will not permit states to construct statutory schemes that
effectively railroad blameless fathers out of their children’s lives”).
      9
          The magistrate judge, for example, contrasted L.M.J.’s situation with that
of K.J.’s brother’s biological father, whose consent was not required because he
had abandoned K.J.’s brother. In determining that L.M.J. and K.J.’s biological
mother, C.J., had waived their consent, the court implicitly rejected any claim that
L.M.J. had not grasped his opportunity interest. Put differently, the magistrate
judge need not have reached the consent-waiver issue if it had concluded that
L.M.J. had not grasped his opportunity interest as the majority today suggests.
And on appeal from that order, the associate judge recognized the preference for “a
fit unwed father who has grasped his constitutionally protected opportunity
interest,” In re Baby Boy C., 

630 A.2d 670

, 682 (D.C. 1993), and went on to find
that preference rebutted with a showing by clear and convincing evidence that the
adoption was in the child’s best interest. The associate judge thus concluded—
contrary to our case law—that as long as the best interest factors favored adoption,
L.M.J.’s rights could properly be terminated regardless of his fitness and
“regardless of any attempts he has made to ‘grasp’ his opportunity interest.”
                                         30

through sworn affidavits and various court filings that a different man, A.P., was

the girl’s biological father.   Once DNA tests precluded A.P.’s paternity and

confirmed that L.M.J. was K.J.’s father, L.M.J. promptly sought to be in K.J.’s life,

taking every step he could to form a relationship with his daughter. He contacted

the Department of Child and Family Services, requested visits with K.J., met with

her social worker and therapist, wrote her letters, brought his mother and sister to

team meetings with the other participants in K.J.’s case, and came forward to

contest the adoption that would sever the father-daughter relationship before it ever

began. He also met with Mrs. J., K.J.’s foster mother (and now adoptive mother),

who compared L.M.J. favorably to K.J.’s brother’s essentially uninvolved father.

In that regard, Mrs. J. testified that she made a point of talking to K.J. about her

biological father because L.M.J. was “active” and Mrs. J. knew “he want[ed] to see

her”: “That’s the reason I told her,” and “she wouldn’t know either” if L.M.J.

“wasn’t that active or trying to see her.” Mrs. J. had also met L.M.J.’s mother and

sister and approved of K.J.’s visiting with them as well as with L.M.J., stating that

she was “not trying to keep [K.J.] away from her father . . . or her grandparents.”



      The majority nonetheless concludes that L.M.J. relinquished his parental

rights by not stepping forward sooner, in 2010 or 2011—before DNA testing

established his paternity—when he had a chance meeting with K.J.’s mother, C.J.,
                                           31

in which C.J. gave him a photograph of K.J. 10 Ante at 16–17. C.J.’s statement to

L.M.J. that the girl in the photo might be his daughter was starkly contradicted by

C.J.’s multiple sworn affidavits declaring that A.P. was the father and that no one

else could be the father. 11 That declaration was still in force after the adoption

petition was filed in April 2013, and C.J. testified at trial that at the time she signed

the sworn affidavit, she “did believe that” A.P. was the father. In addition, this

court has recognized “the limitations state action can impose on a noncustodial

father once the child is placed with another family,” Appeal of H.R., 

581 A.2d

1141

, 1162 (D.C. 1990), and by the time L.M.J. and C.J. had run into each other,

K.J. had already been in the custody of the Child and Family Services Agency

(CFSA) for at least a year and was living with another foster parent.



      All the other participants in the previous neglect case and initial adoption



      10
           It is undisputed that C.J. did not inform L.M.J. prior to this point that she
had given birth in 2006, and the majority notes that it does “not fault” L.M.J. “for
failing to act as soon as K.J. was born.” Ante at 15.
      11
          The affidavit read: “My initials on the preceding line indicate I believe
no one else could be the child’s father other than the person whose name appears
immediately below and that I am unable to identify anyone else who could be the
child’s father.” C.J.’s initials appeared on the line preceding the statement and
A.P.’s name appeared on the line below the statement. In the next section, which
instructed: “Complete if the biological mother is unsure about the identity of the
biological father,” C.J. filled out nothing.
                                          32

proceedings were working under the assumption that A.P. was K.J.’s father, 12 and

it is reasonable to expect that any overtures on L.M.J.’s part would have

encountered the same hurdles L.M.J. encountered after C.J. named him as the

father but before his paternity was confirmed by DNA testing. 13 Concerns over

K.J.’s own well-being also counseled against acting on speculative information

that conflicted with sworn affidavits identifying someone else as her father. As

K.J.’s foster mother testified, the uncertainty about K.J.’s father’s identity “was

confusing to her,” and K.J.’s therapist testified that “this was a surprise to her” and

“a change in . . . what she had known.” In these circumstances, the publicly

controverted statement C.J. made to L.M.J. in 2010 or 2011 cannot meaningfully

detract from L.M.J.’s ardent effort to maintain his parental rights once he learned

C.J. formally named him as the father.




      12
          As the foster mother described the situation after A.P. was precluded as
the father and L.M.J.’s paternity was confirmed, “dad just came in the picture” and
“didn’t know he had a child.” The social worker, Rochelle White, mentioned in
her testimony that she and others assumed someone else was K.J.’s father and that
she did not know L.M.J. was her father until July of 2014.
      13
          Before his paternity was established, L.M.J. was not permitted to visit his
daughter. Rochelle White, the social worker, testified that once DNA testing had
confirmed the relationship, the “team” would not grant L.M.J.’s requests to visit
K.J. until they received input from Ms. Dodge, the therapist. After L.M.J. met
with Ms. Dodge, she approved visitation, but K.J.’s refusal to meet him led to a
letter-writing plan to allow K.J. to get to know L.M.J.
                                           33

      With respect to the majority’s alternative contention that L.M.J. was

disqualified from preserving his parental rights because he did not seek custody of

K.J., see ante at 10–13, it is unclear, as an initial matter, whether this purported

failing is a subset of the opportunity-interest doctrine or a distinct requirement. In

any event, this argument rests on a mistaken factual premise and also has no legal

footing, at least as the majority envisions its application to this case.



      As a factual matter, Rochelle White, the social worker assigned to the case,

testified that L.M.J. was, in fact, “interested in having K.J. in his home or in his

care” when she was asked whether he “ever express[ed] an intention of obtaining

custody of his daughter.” L.M.J.’s acknowledgement that immediate removal of

his daughter from her foster home would be ill-advised did not demonstrate a lack

of interest in taking “some measure of responsibility for the child’s future.” 

Lehr,

463 U.S. at 262

.    It reveals instead that L.M.J. contemplated caring for K.J. and

that he was realistic about the need to proceed gradually—a responsible approach

given that he and K.J. did not know each other and that for the past several years

her mother had formally named another man as her father. As counsel stated in

closing arguments, L.M.J. had “every right to have [K.J.] placed with him,” but if

the adoption were not granted her “placement [was] not going to immediately

change.” In every respect, L.M.J. was acting in K.J.’s best interest.
                                         34



      As a legal matter, my colleagues’ view that L.M.J. was not entitled to the

presumption favoring a biological parent because he did not seek “an actual

relationship of parental responsibility” belies this court’s and the Supreme Court’s

decisions, even if its factual premise were correct, which it is not. Parents who

lose custody of their children as a result of neglect or abuse still retain a

“fundamental liberty interest” in the care of those children. 

Santosky, 455 U.S. at

753

. And many people enjoy parental rights, and are good parents, despite not

having custody of or living with their children. 14 The phrases the majority extracts

from the cases about a father’s “right to custody” and his right to “raise” or to

“parent” his child do not amount to a requirement that an unwed father

unequivocally request custody or involuntarily relinquish his rights as a biological

parent.    See Ante at 10–13.     In circumstances in which the unwed father’s

“opportunity . . . to shoulder the responsibility of parenthood may disappear before

he has a chance to grasp it, no matter how willing he is to do so,” the better

approach is to “acknowledge[] that in some instances the Constitution protects an


      14
          Cohabitation is of course not the only way to “raise” or “parent” a child,
and the majority’s reliance upon cohabitation as a significant measure of “parental
responsibility” casts into doubt the rights of unwed fathers in a range of common
family arrangements—a military parent stationed abroad, a parent
whose profession requires near-constant travel, separated biological parents
living in different states, and so on.
                                        35

unwed father’s opportunity to develop a relationship” with his child, whether or

not that opportunity will lead to a custodial arrangement. See Robert 

O., 604

N.E.2d at 102

.



      And finally, as to Quilloin v. Walcott, 

434 U.S. 246

(1978), the case the

majority most relies on in this regard, the Supreme Court held that due process was

not implicated where the father had had eleven years to demonstrate his

commitment to “significant responsibility with respect to the daily supervision,

education, protection, or care of the child,”

id. at 249, 256,

and where he was

challenging the child’s adoption into “a family unit already in existence” that

included the child’s biological mother

, id. at 255.

Here, the people who sought to

adopt K.J. were unrelated by birth and had been K.J.’s foster parents for just three

months when they filed the adoption petition. L.M.J.’s paternity was confirmed

after that petition was filed, and this presumptively fit biological father did

everything he could reasonably do to protect his parental rights, including

presenting a timely challenge to the J.s’ adoption of his daughter. Quilloin is in a

wholly different category of cases and does not authorize the court’s termination of

L.M.J.’s parental rights.



      As Judge Titone proposed in Robert O., we should decline to decide this
                                          36

appeal based upon an exaggerated and unfair portrayal of L.M.J.’s purported

failings as a father. We should not demonize someone who so plainly had a

genuine interest in knowing his daughter and preserving their relationship. And

while there might be cases, like Robert O. itself, where the challenge to the

adoption comes so late that the rights of a blameless father must yield to the

interest in finality, this is not such a case.     Unlike in Robert O., where the

biological father was challenging an adoption that had been final for almost a year,

here the finality calculus favors L.M.J. He responded promptly to the notice of the

adoption proceedings, which he received after a DNA test showed that A.P. was

not K.J.’s father. That order indicated that he had “the right to seek custody of the

child or to challenge the adoption,” and he accordingly took steps to oppose the

adoption. Further, though K.J. had known her foster parents for years, she had

lived with them for only a short time when they petitioned for adoption. That Mrs.

J., K.J.’s foster mother, told K.J. that her father wanted to be in her life and

encouraged K.J. to get to know him tends to support L.M.J.’s contention that it was

not too late for him to become a parent to K.J. Because this is not a case where the

urgency to finalize the adoption justifies terminating L.M.J.’s rights without

determining that he was unfit and without giving him time to develop a

relationship with his daughter, I would reverse the trial court’s order.

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