In re C.L.O.

FERREN, Senior Judge:

This case presents the challenge by an unwed, noncustodial father — who was unaware of his child at birth — to the adoption of his child by her foster parent with the consent of the natural mother. After finding that clear and convincing evidence supported a court-ordered waiver of the father’s required consent in the child’s best interest, the trial court ordered the waiver and granted the adoption. Perceiving no abuse of the court’s discretion, we affirm.¹

I. Statement of Facts and Proceedings

Beginning in the winter of 2006-2007, E.P. had a sexual relationship with K.H. The relationship ended after seven or eight months because E.P. disapproved of KH.’s drinking habits. Not long thereafter, on October 6, 2007, K.H. gave birth to A.H.

For the first three months of her life, A.H. lived with her mother in homeless shelters. On January 28, 2008, the District’s Child and Family Services Agency (CFSA) removed A.H. from her mother’s care. On January 31, CFSA filed a petition for neglect, and A.H. was committed forthwith to the agency for placement in foster care.² On March 28, a magistrate judge granted the government’s motion for constructive service of process on the unknown father, and a notice was posted on March 81 in the Juvenile and Neglect Clerk’s Office for a period of two weeks stating “that a neglect proceeding has been scheduled” for A.H. “born to [K.H.] on October 6, 2007.” The notice ordered the unknown father to appear at the next scheduled hearing, with date and time provided, adding that he had a right to seek custody of the minor child, that he had a court-appointed attorney, and that failure to respond to the notice could result in the court proceeding without the father being present.

Five weeks later, on May 7, K.H. stipulated before the magistrate judge that her daughter, then seven months old, was a neglected child, and the judge entered an order to that effect. K.H. also submitted an affidavit of paternity that identified the father as either a man named E. or a man named N. She was unable to provide last names or any other identifying information, but she said that she could point out addresses where these men could be found.

District of Columbia law requires a hearing, within one year after a child’s entry into foster care, to determine a plan for the child’s permanent custody.³ Accordingly, on May 21, 2008, the magistrate judge confirmed that the permanency goal was reunification of A.H. with her mother, K.H., and ordered the provision of appropriate social services to facilitate that goal. Three months later, on September 3, the magistrate judge reiterated that the permanency goal was reunification but recognized that the case was likely to move toward guardianship or adoption. Were that to happen, the natural father would have to either claim or waive his right to custody;⁴ thus, the judge asked the parties to launch an effort to locate A.H.’s father. Thereafter, social workers were often unable to reach K.H., who also missed two appointments with the investigator assigned to locate the father. A court-appointed counsel for the unknown father also hired an investigator, who was unsuccessful in finding the father.

At a hearing on December 8, 2008, the magistrate judge ordered the permanency goal changed from reunification to adoption, and on January 16, 2009, a motion was filed⁵ to terminate the parental rights of both K.H. and the child’s father. Sometime in January, if not earlier, the petitioner, C.L.O., expressed an interest in adopting A.H., who was moved, as a result, from her first foster home to C.L.O.’s care on January 25. The child was a little over one year old. C.L.O. brought A.H. to medical and dental appointments, as well as to developmental, language, and speech assessments. Over the course of a year, social workers expressed satisfaction at several status hearings that, under C.L.O.’s care, A.H. was thriving and on target developmentally.

C.L.O. filed a petition for adoption on October 19, 2009,⁶ when A.H. had just turned two years old. K.H. received a notice of the petition within a few days, and efforts were made to serve notice on a man named E.T. (not E.P.) and another named N. Meanwhile, as he acknowledged later at trial, E.P. had learned from his cousin some two months earlier, in August 2009, that “K. had the baby and that K. wanted [E.P.] to come and get the baby.” E.P. further testified that he then knew “it might have been a possibility” that the baby was his child, and that he decided to seek out K.H. to “see what the problem was since she said [to his cousin] she couldn’t handle ... having the baby.” Not knowing where to find K.H., E.P. initially relied on his cousin to contact her. He waited two weeks for his cousin to report back; he heard nothing from her. E.P. then went with his cousin to K.H.’s grandmother’s house.⁷ He learned from K.H.’s family that she had left the house with her baby, implying that she would return. E.P. returned to the grandmother’s house three or four more times over the next “month or less,” without finding K.H. or the baby there. He made no further effort to find mother or child.

At the next hearing on January 26, 2010, K.H. consented to A.H.’s adoption. Arrangements were made once more for K.H. to accompany a CFSA investigator, who was also a process server, to try to locate A.H.’s father. This time they succeeded. E.P. was served with a notice for termination of parental rights (TPR) on January 28 — five months after he had learned about the child — and with a notice of the proposed adoption a month later on February 23. E.P. maintains that he had been unaware that A.H. was in a foster home until he was served with the TPR notice in January, and that he had not been certain the child was his until a DNA test confirmed his paternity in March 2010. Immediately after the DNA result, E.P. said, he contacted CFSA. Without waiting for a court order, the agency arranged for E.P. to have two, one-hour supervised visits with A.H.

E.P. attended the next scheduled status hearing on March 25, 2010 and notified the magistrate judge that he wished to work toward gaining custody of his child. Because E.P. had just been identified as the father, the judge chose to maintain the goal of adoption. However, he deferred a hearing on the adoption petition, giving the parties additional time to discuss their respective positions. Taking into account the child’s young age and the absence of information about E.P.’s ability to care for her, the magistrate judge formalized E.P.’s visitation rights with an order allowing supervised visits of at least one hour each week, and he granted CFSA, the guardian ad litem, and the foster mother (C.L.O.) discretion to determine together whether to permit unsupervised visits.

Four months later on July 26, 2010, having failed to obtain permission for unsupervised visits, E.P. filed a motion for unsupervised visitation and for appointment of an independent social worker. The magistrate judge denied the motion as well as a motion to reconsider. The judge held a permanency hearing on September 14, at which E.P. withheld his consent to A.H.’s adoption.

On October 14, 2010, the magistrate judge convened a show cause hearing⁸ to evaluate whether the court, in the child’s best interest, should waive the statutory requirement for E.P.’s consent to the adoption. By that time, A.H. had just turned three years old. She had been in foster care for all but three months of her life, and the petitions for TPR and adoption had been pending for nine months and eight months, respectively. The parties presented extensive evidence over the course of four days, including testimony from C.L.O. and E.P., as well as from three of E.P.’s daughters (by other mothers); the mother of one of his daughters; E.P.’s own mother; four social workers who had been supervising the case; A.H.’s daycare teacher; a child psychiatrist; and a clinical psychologist.

C.L.O. testified that she has a bachelor’s degree, as well as a master’s degree in social work, from Howard University. She has been employed by CFSA as a supervisory social worker for twenty years. C.L.O. has one biological teenage daughter for whom she has always been the primary caretaker. She lives with L.A.L., her daughter’s biological father, and she owns her home. She was forty-nine years old at the time of the hearing, she said, and was in good health except for high blood pressure controlled by medication.

C.L.O. then testified about the close relationship A.H. has developed with C.L.O. and her family. A.H. refers to C.L.O. as “mom.” She refers to C.L.O.’s biological daughter as her sister or her best friend. L.A.L. and A.H. have a positive relationship, and A.H. refers to L.A.L. as her “daddy.” C.L.O. further testified that she believed removal of A.H. from her home would be “traumatic” for the child. C.L.O. also testified that, if the adoption were approved, she would agree to allow E.P. to develop a relationship with his daughter, beginning by inviting him to holidays and special events and then giving A.H. more freedom to decide when to meet with her father as she gets older.

A.H.’s daycare teacher testified that A.H. was a healthy and active child, with no behavioral problems, good hygiene, excellent attendance, and good communication and social skills. She described C.L.O. as “very attentive” to A.H.’s needs. Emily Colebrook, one of the CFSA social workers, testified that “C.L.O. took every step that was recommended” for A.H.’s care and “really went above and beyond to make sure [A.H.] continued to progress.” Ms. Colebrook added that C.L.O. and L.A.L. had a very positive relationship with A.H.; the relationship was trusting, nurturing, loving, and marked by appropriate disciplinary boundaries.

Kathryn King, a supervisory social worker, testified about the attentive care that C.L.O. was providing and stressed the bond that had developed between A.H. and her pre-adoptive family. Ms. King further testified that she believed it would be devastating for A.H. to be removed from C.L.O.’s home because “she’s totally bonded to [C.L.O.j’s family, her biological daughter, her boyfriend [L.A.L.]. She’s— that’s her family.” Carolyn Nicholson, a third CFSA social worker, testified similarly about the positive relationship between A.H. and C.L.O., stating that A.H. appeared to be “fully integrated into that foster family.” On the other hand, a fourth CFSA social worker, Marie Cohen, testified about the positive nature of EJP.’s visits with his daughter and stated that she was not comfortable with the permanency goal of adoption.

The magistrate judge then heard testimony from E.P. that he was unemployed at the time of the hearing but was actively seeking employment, and that his income consisted of unemployment compensation, food stamps, and payments for odd jobs. At the time of the hearing, E.P. lived with his mother, for whom he provided some financial support. E.P. was fifty-five years old at the time of the hearing and in good health, with the exception of high blood pressure controlled by medication.

E.P. testified that he has had seven children (including A.H.) with five different women, and that he was “always very active with [his] kids,” having a “good relationship” with each. E.P. acknowledged, however, that he did not know what his eldest son (aged thirty-six and living in Wisconsin) “was up to.” E.P.’s second and third sons were killed at a young age following involvement in criminal activity. None of E.P.’s sons finished high school.

E.P.’s eldest daughter, D.P.W., was thirty at the time of the hearing. She testified that E.P. had lived with her mother until D.P.W. was five years old and that he had been engaged in her upbringing. She also lived with E.P. for five months when she was fourteen, after becoming pregnant. E.P.’s second daughter, E.J., testified that she had spent many weekends with her father growing up and that he had provided her with necessities such as school supplies. Neither D.P.W. nor E.J. finished high school, but they have since obtained General Equivalency Degrees (GEDs) and job training.

According to E.P.’s third daughter, S.C., E.P. maintains a close relationship with her and participates in her high school education. S.C.’s mother stressed that, with the assistance of family members and hired nurses, E.P. had cared for S.C., as well as S.C.’s five siblings, for a number of years immediately following S.C.’s birth when S.C.’s mother was seriously ill. S.C.’s mother testified that during this time E.P. “would cook, he would wash the clothes, help with the kids, take them out to play.” E.P. testified that he had paid child support for one of his seven children and provided for them informally when needed.

The magistrate judge learned from a social worker that E.P. had not missed a single visit with A.H., who had responded positively except on one occasion, when she exhibited an unusual reluctance to engage with him. E.P. brought his daughter a snack for each visit, as well as a basket for Easter; cake, ice cream, and a doll for her birthday; and clothing on another occasion. After a number of visits, A.H. began referring to E.P. as “daddy.” E.P. testified that he hoped A.H. could gradually experience a transition to his custody, but he was not able to articulate a plan for her care if he were to obtain custody. He added that A.H. would reside with him at his mother’s home along with his seventy-year-old mother and a “Cousin James.”

At the hearing, E.P. acknowledged that he had a criminal record. In 1991, he pled guilty to attempted carnal knowledge, and a year later he pled guilty to simple assault. E.P. had earlier failed to come forward "with information about the attempted carnal knowledge conviction when social workers asked him to disclose prior convictions, if any. Two of the social workers testified, accordingly, that they had refused to grant E.P. unsupervised visits with A.H. because they had been concerned about his judgment and character.

Finally, a child psychiatrist, Dr. Susan Thuet, and a clinical psychologist, Dr. Charles Missar, offered expert clinical opinions about A.H.’s respective attachments to C.L.O. and E.P. Dr. Thuet testified that the strongest aspects of attachment are witnessed from birth to about three and a half years old, a period when the risks associated with breaking attachments — sadness, crying, irritability, and sleep problems — are the greatest. Based on her observation of A.H. with C.L.O., and then with E.P., during two consecutive, forty-five minute “attachment” studies, Dr. Thuet testified that in her clinical opinion A.H. had developed positive attachments of equal strength to C.L.O. and E.P. She added that she believed A.H. would be sad and distressed to leave her pre-adoptive home with C.L.O.’s family, and that there was a risk of long-term psychological harm in doing so that would turn on a number of factors, including the nature of the relationship A.H. developed in a different home, the results of therapy, and A.H.’s own constitution. She testified, however, that the psychological harm to A.H. would be the same if she were no longer permitted to interact with E.P. because “the strength of the attachment ... between her and her father was very significant.”

Dr. Missar’s testimony differed from Dr. Thuet’s, including his distinction between a “bond” and an “attachment.” Dr. Missar defined a psychological attachment as “much deeper than a bond relationship.” He stated that the short-term consequences of breaking an attachment for a child under four to five years old include “emotional regression” and a likelihood that the child will “cry, break down, have temper tantrums, act out.” The long-term consequences include having “trouble reattaching to people.” He agreed that the first four years of a child’s life were the most critical with regard to the development and maintenance of attachments. Dr. Missar further testified that, based on his review of background materials as well as Dr. Thuet’s report, A.H. had developed a positive bond with E.P. and that breaking that bond would have an emotional impact on A.H. But he stressed that in his clinical opinion A.H. had developed a more profound relationship with C.L.O. — an attachment — and that breaking that attachment would lead to immediate emotional regression and a likelihood of long-term emotional complications.

In both opening statement and closing argument, counsel for C.L.O. maintained that E.P. had not “embraee[d] his parental responsibilities with sufficient urgency and enthusiasm” to support “any presumptive evidentiary weight to which he may otherwise be entitled.” Counsel argued, in addition, that C.L.O. had satisfied the clear and convincing evidence standard entitling her to adopt A.H. Counsel for the government agreed. A.H.’s guardian ad litem argued that E.P. had seized his constitutional “opportunity interest” but that the adoption would nonetheless be in the child’s best interest. The guardian explained that “[fit’s unfortunate how the events transpired, but the child already has a family, and I don’t see any reason for that family relationship to be disrupted at this point.”

On November 18, 2010, the magistrate judge found by clear and convincing evidence that, in the best interest of A.H., the court would waive E.P.’s consent to adoption. On March 9, 2011, the judge issued written Findings of Fact, Conclusions of Law, and Order Waiving Consent of Biological Father. The final decree of adoption was issued the same day by another magistrate judge in chambers, and E.P. filed a timely motion for review. On May 23, 2011, the trial judge,⁹ after reviewing the record,¹⁰ affirmed the final decree and all preliminary orders. E.P. filed a timely notice of appeal.

II. Standard of Review

The trial judge reviewed the magistrate judge’s findings, conclusions, and final order, applying the same standard of review as this court would apply on appeal of a judgment or order of the Superior Court.¹¹ Accordingly, the trial judge reviewed the magistrate judge’s order for errors of law, abuse of discretion, or clear lack of eviden-tiary support,¹² and affirmed. We, in turn, review the trial judge’s order.¹³

Although “[w]e are mindful that from a procedural standpoint, our role is to review the order of the [trial] judge, not the magistrate judge, ... we do not believe our powers of appellate review are so limited that, in reviewing the trial court’s final order we may not look to the findings and conclusions of the fact finder on which that ruling is based.”¹⁴ Therefore, we review 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.”¹⁵ As to alleged errors of law, however, we review the record de novo, without deference to the judges below.¹⁶

“The determination of whether a birth parent’s consent to the adoption of a child has been withheld contrary to the child’s best interest is confided to the trial court’s sound discretion.”¹⁷ We therefore review the court’s order for abuse of discretion, “ ‘determining whether the trial court exercised its discretion within the range of possible alternatives, based on all the relevant factors and no improper factors.’ ”¹⁸ “In so doing, ‘we ... evaluate whether its decision is supported by substantial reasoning drawn from a firm factual foundation in the record.’ ”¹⁹

III. Applicable Law

As a general rule, the trial court may not grant a petition for adoption of an infant child without a written statement of consent from the child’s living parents, both the natural mother and the natural father.²⁰ The court, however, after a hearing, may waive this required parental consent upon a finding that consent is “withheld contrary to the best interest of the child.”²¹ “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.”²² The “best interest” determination requires the court to apply the same factors used in a proceeding to terminate parental rights.²³ Three of those factors are relevant here:²⁴

(1) the child’s need for continuity of care and caretakers and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages;

(2) the physical, mental and emotional health of all individuals involved to the degree that such affects the welfare of the child, the decisive consideration being the physical, mental and emotional needs of the child;

(3)the quality of the interaction and interrelationship of the child with his or her parents, siblings, relatives, and/or caretakers, including the foster parent;

The court must apply these factors with full recognition of the “gravity of a decision whether to terminate parental rights.”²⁵ The court therefore begins by recognizing “the presumption that the child’s best interest will be served by placing the child with his natural parent, provided the parent has not been proven unfit.” ²⁶ Even for fit fathers, however, there is a limitation. The court will invoke the presumption or preference²⁷ 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.²⁸ That is to say, the father must have “early on, and continually, done all that he could reasonably have been expected to do under the circumstances to pursue that interest” in developing a custodial relationship with his child.²⁹

When a fit, unwed, noncustodial father has seized his opportunity interest, his resulting right to presumptive custody “can be overridden only by a showing by clear and convincing evidence that it is in the best interest of the child to be placed with unrelated persons.”³⁰ But suppose the same father has failed to seize his opportunity interest, yet opposes the adoption of his child. Does the trial court employ the same standard for terminating the father’s parental rights, namely, whether clear and convincing evidence demonstrates that he is withholding his consent contrary to the child’s best interest? This court has not expressly addressed this question, and, as we shall see, we need not answer it here. From the trial judge’s review, we discern that she reached conclusions in the alternative: that (1) based on subsidiary facts found by the magistrate judge, E.P. had surrendered his opportunity interest, but that (2) even though the magistrate judge did not mention E.P.’s opportunity interest in the written findings of fact and conclusions of law, the record supplied clear and convincing evidence supporting the waiver. A majority of the division agrees that we need not address the first alternative, because the majority agrees that even if E.P. did grasp his opportunity interest, the court-imposed waiver of his consent to the adoption was supported by clear and convincing evidence.³¹ We turn, therefore, to our explanation.

IV. The Child’s Best Interest

Both the magistrate judge and the trial judge found clear and convincing evidence that C.L.O.’s adoption of A.H., facilitated by a court-imposed waiver of E.P.’s right to consent, was in the child’s best interest. We turn to the applicable statutory criteria, beginning with the first of the three applicable factors.³²

(1) The child’s need for continuity of care and caretakers and for timely inte gration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages.

E.P. argues that the evidence shows “he would provide a stable, loving home for A.H.” This may be true, but his contention neglects to consider the child’s need for “continuity of care” and “timely integration” into a home that is not only “stable” but also “permanent.”³³

Record evidence supports the magistrate judge’s findings that A.H. has been removed twice from her primary caretaker — once from her biological mother and then from her first foster home; that A.H. has lived with C.L.O. since January 25, 2009 and has been a member of C.L.O.’s family “for more than half of her short life”; that C.L.O. has been the primary care provider for her biological daughter since the child’s birth in 1997; and that E.P., to the contrary, has not been the primary care provider for any of his seven children, except during brief periods. The magistrate judge credited the testimony of both expert witnesses that A.H. would “suffer significant emotional harm if she were removed from the care of C.L.O.” The judge also noted that “the social workers and the child’s guardian ad litem” supported the adoption.³⁴ Indeed, the guardian ad litem stated during closing argument with respect to this first factor that “[fit’s unfortunate how the events transpired, but the child already has a family, and I don’t see any reason for that family relationship to be disrupted at this point.” The record supports the magistrate judge’s conclusions of law that A.H. has a “secure and loving” relationship with C.L.O.; that C.L.O. has demonstrated her ability to provide stability and permanence; that E.P. has not demonstrated this same ability; and that removing A.H. from her pre-adoptive, foster home would cause her to “suffer substantial harm.” Accordingly, the trial judge did not err in finding by clear and convincing evidence that this factor should be weighed in favor of adoption.

(2) The physical, mental and emotional health of all individuals involved to the degree that such affects the welfare of the child, the decisive consideration being the physical, mental and emotional needs of the child.

In applying this factor, a trial judge may consider whether breaking a child’s secure attachment to the pre-adoptive foster parent would have a negative impact on the child’s physical and mental health.³⁵ The judge may also consider a parent’s emotional maturity, parenting skills, and ability to meet the emotional needs of the child.³⁶

The magistrate judge found that, overall, both E.P. and C.L.O. were in good physical health. He credited the testimony of both expert witnesses that A.H. would suffer emotionally if her attachment to C.L.O. and C.L.O.’s family were broken. He found that A.H. “would not suffer nearly the same emotional trauma if she has decreased contact with her father in the coming months and years, given the limited nature of their relationship.” He credited C.L.O.’s testimony that she would allow some ongoing contact between A.H. and E.P.

The magistrate judge also made a number of findings regarding the parenting skills of the two parties. He found that E.P. had fathered seven children, two of whom died following involvement in criminal activity and most of whom had not finished high school. He further found that E.P. had provided child support for only one of his seven children. He found that E.P. had been convicted of attempted carnal knowledge and simple assault on separate occasions and that E.P.’s “involvement in criminal activity demonstrates significant problems with his judgment.” ³⁷ The magistrate judge then found, based on the evidence and the demeanor of the parties, that “C.L.O. will be a much more reliable, dependable, and responsible care provider for [A.H.] than [E.P.].” These findings of fact are supported by the record and, taken together, support a finding by clear and convincing evidence that A.H.’s mental and emotional needs would be better served by remaining in C.L.O.’s custody.

(3) The quality of the interaction and interrelationship of the child with his or her parents, siblings, relatives, and/or caretakers, including the foster parent.

The magistrate judge entered three findings relevant to this third factor: A.H. had lived with C.L.O. since January 25, 2009; E.P. first visited A.H. on March 17, 2010 and participated in regular weekly visits thereafter; and A.H. has a “warm, loving relationship” with C.L.O.’s biological daughter and her daughter’s father [L.A.L.] and has been accepted as a member of that family. The judge discussed “the substantial testimony about the secure and loving emotional connection between [A.H.] and C.L.O., whom [A.H.] refers to as ‘Mommy.’ ” In addition, he credited the testimony of Dr. Missar that A.H. “would suffer far more serious emotional harm if she were separated from C.L.O. than if she were separated from [E.P.],” as well as “his testimony that the attachment between [A.H.] and C.L.O. is far more significant to [A.H.] than [her] relationship with [E.P.]” The magistrate judge summarized: “It is quite clear that the child’s relationship to C.L.O. is far more developed than her relationship with her father.”

E.P. argues that the magistrate judge should have credited not Dr. Missar’s testimony but that of Dr. Thuet, who testified that the harm to A.H. would be as great from leaving E.P. as from terminating her relationship with C.L.O. However, “ ‘as a general proposition, when faced with conflicting expert testimony, the trial court may credit one expert over the other, or disregard both in rendering its judgment.’”³⁸ The magistrate judge’s finding that favors Dr. Missar’s testimony over that of Dr. Thuet is supported by the record.³⁹ Assessment of the demeanor and persuasiveness of competing expert witnesses is a primary role of the trial judge, and this court will not “redetermine the credibility of witnesses” when the trial judge has had an “opportunity to observe their demeanor and form a conclusion.”⁴⁰

At the time of the hearing, C.L.O. had provided for A.H.’s every daily need for almost two years, while E.P. had diligently attended every scheduled visit with his daughter. But E.P.’s visits consisted of no more than weekly structured visits of an hour and a half at the offices of the social workers for a period of eight months. Based on the length and quality of these interactions, the magistrate judge did not abuse his discretion in finding by clear and convincing evidence that “the quality of the interaction and interrelationship” of A.H. with C.L.O. and her family was substantially greater than the quality provided by E.P. and thus weighed in favor of A.H.’s adoption.

V. Conclusion

The trial judge upheld the magistrate judge’s order after a careful review, ruling that his findings were supported by the record. Furthermore, based on the assumption that E.P. had grasped his constitutional opportunity interest, the trial judge ruled that clear and convincing evidence required waiver of E.P.’s consent and supported adoption by C.L.O. in the best interest of A.H. In reviewing both judges’ decisions, we have “ ‘evaluate[d] whether [the] decision is supported by substantial reasoning drawn from a firm factual foundation in the record.’”⁴¹ We conclude that the court did not abuse its discretion in ruling that E.P. withheld his consent to the adoption of A.H. contrary to the child’s best interest, and thus in entering a final decree granting the adoption of A.H. by the petitioner-appellee, C.L.O.

Affirmed.

1 . This appeal comes from three trial court dockets for a neglect proceeding (NEG65-08), a proceeding to terminate parental rights (TPR65-08), and an adoption proceeding (ADA179-09). In the trial court, the neglect and adoption proceedings were consolidated, noting the TPR proceeding as a related case. E.P. filed one appeal referencing all three cases, lodged as two appeals on this court's docket (Nos. 11-FS-898 and 11-FS-727), reflecting the neglect and adoption proceedings, respectively. Both are now consolidated for disposition by this court. After the trial court granted the adoption, counsel for the District of Columbia represented that the TPR proceeding would be dismissed.

2 . Under District of Columbia law, D.C.Code § 16-2316.01(b)(1) (2001), the trial court must hold a fact-finding and dispositional hearing within forty-five days of the child's entry into foster care to determine whether the child has been neglected. .

3 . See D.C.Code § 16-2323 (2005 Supp.).

4 . D.C.Code § 16-304(e) (2010 Supp.); see, e.g., In re J.G., 831 A.2d 992, 999 (D.C.2003) (upholding order waiving consent of natural parent and granting adoption).

5 . The record available on appeal does not disclose by whom.

6 . The adoption petition was subsequently consolidated with the neglect action. See supra note 1.

7 . E.P. testified at trial that he had had no idea where K.H. lived while he was seeing her, because she had always come to his house or he had picked her up from his cousin’s house. He further testified that later, when his cousin approached him about the baby, he "had the idea that K. was staying with her grandmother because that’s — D. [his cousin] took me to the grandmother’s house. So I went to the grandmother['s] house with D.” The grandmother lived near E.P.’s cousin, and E.P. described the grandmother’s address at trial as "up the street” or about a five minute drive from his house.

8 . See D.C.Code § 16-304(e).

9 . For purposes of this opinion, references to the "trial judge’s” or "trial court’s” order are to Judge Carol A. Dalton’s May 23, 2011 decision affirming the magistrate judge’s final order of March 9, 2011.

10 . See Super. Ct. Gen. Fam. R. D(e).

11 . See Weiner v. Weiner, 605 A.2d 18, 20 (D.C.1992).

12 . Id.

13 . See In re D.H., 917 A.2d 112, 117 (D.C.2007).

14 . In re C.A.B., 4 A.3d 890, 902 (D.C.2010) (internal citation omitted).

15 . Weiner, 605 A.2d at 20.

16 . In re R.E.S., 19 A.3d 785, 789 (D.C.2011).

17 . In re D.H., 917 A.2d at 117.

18 . In re C.A.B., 4 A.3d at 899-900 (quoting In re S.M., 985 A.2d 413, 418 (D.C.2009)).

19 . Id. at 900 (quoting In re T.W.M., 964 A.2d 595, 601 (D.C.2009)).

20 . D.C.Code §§ 16-304(a), (b)(2)(A). The consent requirement does not apply when a parent, “after such notice as the court directs, cannot be located, or has abandoned the prospective adoptee and voluntarily failed to contribute to his support for a period of at least six months next preceding the date of the filing of the petition....” D.C.Code § 16-304(d).

21 . D.C.Code § 16-304(e).

22 . In re J.G., 831 A.2d at 999; accord In re J.D.W., 711 A.2d 826, 832 (D.C.1998) ("In the ordinary case where consent is withheld, the trial court must apply a clear and convincing evidence standard to determine whether a non-parent’s adoption petition can be considered despite the biological parent’s decision to deny consent.”) (citing Santosky v. Kramer, 455 U.S. 745, 758, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (because natural parents have a "fundamental liberty interest ... in the care, custody, and management of their child,” their parental rights may be terminated only by "clear and convincing” evidence, not merely by a "fair preponderance of the evidence”)).

23 . D.C.Code § 16-2353(b) (2001).

24 . Id.; see also In re S.M., 985 A.2d at 416-17. The last three have no bearing on the facts of record:

(3A) the child was left by his or her parent, guardian, or custodian in a hospital located in the District of Columbia for at least 10 calendar days following the birth of the child, despite a medical determination that the child was ready for discharge from the hospital, and the parent, guardian, or custodian of the child has not taken any action or made any effort to maintain a parental, guardianship, or custodial relationship or contact with the child;

(4) to the extent feasible, the child’s opinion of his or her own best interests in the matter; and

(5) evidence that drug-related activity continues to exist in a child’s home environment after intervention and services have been provided....

D.C.Code § 16-2353(b).

25 . In re S.M., 985 A.2d at 417.

26 . Id.

27 . In the case law, the words "preference” and "presumption” are used interchangeably. See, e.g., In re S.M., 985 A.2d at 417.

28 . See Lehr v. Robertson, 463 U.S. 248, 262, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Appeal of H.R., 581 A.2d 1141, 1162 (D.C.1990). Lehr cited the Fourteenth Amendment's due process clause because the case applied the U.S. Constitution to state law. In the present case, concerning District of Columbia law, the due process clause of the Fifth Amendment is at issue. See Bolling v. Sharpe, 347 U.S. 497, 498-99, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

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

30 . In re S.M., 985 A.2d at 417 (quoting Appeal of H.R., 581 A.2d at 1143). The right to custody, therefore, is not assured even when the noncustodial father has grasped his opportunity interest and is entitled to the presumption. See In re Baby Boy C., 630 A.2d 670, 683 (D.C.1993), cert. denied, 513 U.S. 809, 115 S.Ct. 58, 130 L.Ed.2d 16 (1994) (affirming adoption decree where, despite presumption favoring noncustodial father, trial court found by clear and convincing evidence that child would suffer significant psychological harm from removal from pre-adoptive home).

31 . Although, for purposes of our analysis, we need not resolve whether E.P. grasped his opportunity interest, we note that E.P., when focusing on one element of that inquiry, argues that government action (including inaction) interfered with pursuit of his opportunity interest. See Appeal of H.R., 581 A.2d at 1162 (listing impact of state action as a factor a court should consider in evaluating father's assertion of opportunity interest). He alleges that CFSA failed to act promptly on the information available to find him after A.H. was born, and that the trial court refused to grant his requests for unsupervised visitation with A.H. and for appointment of an independent social worker to counteract biases he perceived in the other social workers involved. E.P.'s argument here must fail. His claim that CFSA was derelict is belied by the record, and the trial court rulings, on this record, do not reflect an abuse of discretion.

32 .See supra note 23 and text following note 24. The trial judge, but not the magistrate judge, considered the natural mother's consent to the adoption as a relevant factor. This concern was not central to her ruling and is not a factor in ours.

33 .See Application of L.L., 653 A.2d 873, 884 (D.C.1995) (in weighing first TPR factor, trial judge entitled to consider evidence of party's ability to provide continuity of care, stability, and permanence); In re J.G., 831 A.2d at 1002 (same regarding evidence of child’s full integration into stable pre-adoptive home).

34 . The record reflects that three of the four social workers did so.

35 . See, e.g., In re C.A.B., 4 A.3d at 902; see also In re Baby Boy C., 630 A.2d at 683.

36 . See, e.g., In re C.A.B., 4 A.3d at 902.

37 . The magistrate judge was particularly concerned about E.P.’s judgment in other ways he found relevant to E.P. as a parent:

Mr. [P.'s] relationship with [A.H.’s] mother reflects poor judgment. Mr. [P.] chose to engage in unprotected sexual relations on more than one occasion with someone who[ ] he believed had a drinking problem, and who[] social workers concluded had mental health problems and was not even able to provide adequately for her own hygiene or that of her child. Furthermore, the casual nature of the relationship is apparent in the fact that Mr. [P.] did not even know where the [child’s] mother lived, or how to contact her, and yet he chose to engage in relations which obviously could have resulted, and in fact did result, in the unplanned pregnancy of a woman who was apparently poorly equipped to raise a child.

38 . Application of L.L., 653 A.2d at 882-83 (alteration omitted) (quoting Rock Creek Plaza-Woodner Ltd. v. District of Columbia, 466 A.2d 857, 859 (D.C.1983)).

39 . See id.

40 . See, e.g., In re F.W., 870 A.2d 82, 85 (D.C.2005) (internal quotation marks omitted).

41 . In re C.A.B., 4 A.3d at 900 (quoting In re T.W.M., 964 A.2d at 601).