In re T.M.
In re T.M.
Opinion of the Court
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).
On June 19,1991, T.M.’s guardian ad litem (GAL) filed a motion to terminate the parental rights of KM. 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.
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 pur
While the statute does not define the word “parent,” it defines the parent and child relationship as follows:
“[pjarent 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)(l). 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 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).
There is another reason why we conclude that the statute must be construed to authorize the court to adjudicate the claims of putative parents. Although the statute does not explicitly include putative fathers as parties to the proceeding, it does not exclude them.
This court has acknowledged the intent of the Council of the District of Columbia to provide for the early termination of parental rights to free a child for adoption, “even though no adoption petition [is] pending.” Baby Girl D.S., supra, 600 A.2d at 87 (“the sooner a child is freed for purposes of an adoptive placement, the sooner he or she will finally obtain an environment of permanence and continuity of relationships”) (quoting Council of the DistRict of Columbia, Committee on the JudiciaRY, RepoRT on Title IV of Bill No. 2-48, “The PREVENTION of Child Abuse and Neglect Act of 1977” (March 29, 1977) (Council Report)). Since the statutory purpose of enhancing a child’s opportunity for adoption would be served by allowing the termination of a putative father’s parental rights, the trial court is authorized to consider putative fathers as “parents” and to terminate their rights and interests in the child without recourse to separate adoption proceedings. See Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 754 (D.C. 1988) (court may refuse adherence to strict language of statute to effectuate legislative purpose as gleaned from statute as a whole and legislative history).
The trial court expressed the view that termination of the putative fathers’ rights would be ineffective as to one and a nullity as to the other, and therefore, would not enhance the child’s opportunity for adoption. The trial court apparently equated “father” with biological father and concluded that a final disposition could only be made as to the biological father. Since neither putative father had established paternity in accordance with D.C.Code § 16-909 (1989 Repl.), the trial court assumed that at least one putative father had no rights to terminate. Although only one person can be a child’s biological parent, others may assert paternity and thereby gain status as a “putative parent” by “acknowledg[ing] paternity in writing.” D.C.Code § 16-909(a)(4) (1995 Supp.). By failing to terminate the putative fathers’ parental rights, the trial court allowed both men to retain the right to be notified of a pending adoption and any other rights attendant to putative father status, including, presumably, the right to grasp their opportunity interest.
The trial court made its ruling on the erroneous premise that a putative father’s rights cannot be resolved without establishing paternity. This court’s task in determining whether the trial court abused its discretion
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 ...” and then “[to] evaluate whether the decision is supported by ‘substantial’ reasoning ... ‘drawn from a firm factual foundation’ in the record.”
In re D.R.M., 570 A.2d 796, 803 (D.C. 1990). Here, the trial court did not recognize its discretion to terminate any rights of the putative fathers. The court’s failure to recognize that it had this alternative requires this court to find an abuse of discretion. See Johnson v. United States, 398 A.2d 354, 363 (D.C. 1979).
In this case, it was reported to the court that both putative fathers were given notice of the hearing sufficient under the Constitution. Neither one appeared. We leave to the trial court on remand to determine the adequacy of the notice, since that issue was not the focus of its decision to decline to consider disposition of any rights of the putative fathers. The GAL and the District contend that neither man had ever attempted to assume a role in the child’s life, although she was two and one-half years old at the time of the hearing.
. D.C.Code § 16-2301(9)(B) defines a neglected child as [one] who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his or her physical, mental, or emotional health, and the deprivation is not due to the lack of financial means of his or her parent, guardian, or other custodian[.]
. The court granted T.M.’s motion to effectuate alternative service by posting after an investigator for the GAL submitted an affidavit setting forth his unsuccessful attempts to locate D.J. These attempts included going to D.J.'s last known address and searching the records of area hospitals, D.C. shelters, the D.C. Jail and Lorton, the D.C. Morgue, the Income Maintenance Administration, the Voter Registration office and area telephone directories. See In re E.S.N., 446 A.2d 16, 18 (D.C. 1982).
. The trial court considered the statutory factors for determining whether termination of the parent-child relationship was in T.M.’s best interest and made written findings of fact and conclusions of law that it was. See D.C.Code § 16-2353(b) (1989).
. In H.R., this court observed in its per curiam opinion
Because a noncustodial father may not grasp the opportunity to develop a relationship with his child in a timely, meaningful manner, his eventual assertion of his opportunity interest may be too late and thus not entitled to the constitutional protection available to a custodial father.
581 A.2d at 1161. In Lehr, the Supreme Court rejected a putative father’s due process and equal protection challenges to an adoption decree although he had not been given notice of the proceeding. By the time the adoption proceeding was filed, Lehr had not established a “custodial, personal, or financial relationship with [the child],” although this was due to a great extent to the mother’s action in thwarting it. 463 U.S. at 252-53, 267-68, 269, 103 S.Ct. at 2988-89, 2996-97, 2997. The Court recognized that an unwed father who had demonstrated full commitment to the responsibilities of parenthood is entitled to substantial protection under the Due Process Clause. Id. at 261, 103 S.Ct. at 2993. Lehr filed a paternity action seeking a determination of paternity, an order of support and for reasonable visitation with the child. This action came too late, as the child was by then two years old, and the adoption proceeding had been commenced one month earlier in another state. The Supreme Court determined that the New York statutes, which provided notice to seven categories of putative fathers, including those who registered as such (which Lehr did not do) ade
. Some states include the term “alleged” or "putative” father in the definition of “parent” in statutes providing for termination of parental rights or adoption statutes. See Ala.Code § 26-18-3(6) (parents are defined as "[t]he legal or biological parents of a child, inclusive of a putative father”); Wash.Rev.Code § 26.33.100(1) (provides for termination of rights of alleged father). The State of New York maintains a registry for putative fathers. A man who registers claiming to be the father of a child bom out of wedlock is entitled to notice of any proceeding to adopt the child. N.Y.Soc.Serv.Law, § 372-c (McKinney Supp.1982-83); see Lehr, supra, 463 U.S. at 250-51, 103 S.Ct. at 2987-88. The New York law also requires notice of adoption proceedings to be given to certain other described possible fathers. Id. at 251, 103 S.Ct. at 2988.
. The social worker reported that D.J. initially made overtures in an effort to assert his opportunity interest by expressing his desire to raise T.M. if he was indeed her father. However, D.J. failed to submit to a blood test and to appear at the hearing. It is for the trial court to determine whether whatever opportunity interest he might have had, remains subject to constitutional protection under the circumstances.
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