DocketNumber: Nos. 04-FS-451, 04-FS-739
Citation Numbers: 900 A.2d 677
Judges: Glickman, Kramer, Steadman
Filed Date: 6/1/2006
Status: Precedential
Modified Date: 1/12/2023
The natural father of A.G., a minor child within the neglect system, appeals the trial court’s decision to award “permanent guardianship” to the child’s maternal aunt and uncle under the relatively new Foster Children’s Guardianship Act, D.C.Code § 16-2381 et seq., which became effective in 2001.
I. Facts
In 2001, L.G., who is A.G.’s mother, entered a stipulation of neglect. Consequently, the trial court placed A.G., with her maternal aunt and uncle, J.R. and S.R., and initially set the permanency goal as reunification with L.G. At the time, A.G. was eight years old. Following the passage of two years, the court changed A.G.’s permanency goal to permanent guardianship with J.R. and S.R.
In 2004, L.G. consented when the R.s petitioned for guardianship, but A.G.’s father, B.G., opposed the petition. The trial
The R.s testified that A.G. was a “normal,” “helpful,” and “very outgoing” girl, and that she got along well with the R.s’ own children. While A.G. was in the custody of her aunt and uncle, appellant did not call, provide financial child support, or send birthday cards or gifts to A.G. The R.s testified that if he wanted to, appellant would be welcome to come visit his daughter, so long as he was respectful of their situation.
Appellant did not testify or present any other evidence, and his counsel opposed the petition on the basis of appellant’s status as the natural father. The trial judge analyzed the facts under the statutory factors set forth under § 16 — 2383(d), and concluded, “looking at all of the evidence presented, there is preponderant evidence that it is in A.G.’s best interest that she be placed with Mr. and Mrs. R., that they become her permanent, legal guardians” (emphasis added).
II. “Preponderance of the Evidence” Standard
We face here, as a matter of first impression in this jurisdiction, the argument that § 16 — 2388(f)
We must first decide whether we may or should review this issue at all on this appeal. Appellant never objected to the trial court’s use of the preponderance standard when it ruled on the guardianship issue. However, before us, appellees have not asserted that appellant waived the argument and that as a result we are to apply, at most, a “plain error” standard of review. The District’s brief actually appears to invite plenary decision whether the preponderance standard survives constitutional attack, as applied to these guardianship proceedings. Therefore, the District might well be said to have “waived its waiver argument.” In re T.L., 859 A.2d 1087, 1090 n. 6 (D.C.2004) (quoting United States v. Delgado-Garcia, 362 U.S.App.D.C. 512, 515, 374 F.3d 1337, 1340 (2004)). Moreover, this constitutional issue of first impression has been briefed and involves important legal rights. In this posture, we elect to address the issue notwithstanding appellant’s failure to raise any objection before the trial court. See id.) In re K.A., 484 A.2d 992, 997 (D.C.1984) (addressing
We turn to the merits of appellant’s claim. It is a basic principle that “[p]arents have a due process right ‘to make decisions concerning the care, custody, and control of their children.’ ” In re A.H., 842 A.2d 674, 684 n. 14 (D.C.2004) (quoting Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In light of these constitutional considerations, to completely terminate parental rights, the government must “support its allegations by at least clear and convincing evidence.”
Though we have held that the preponderance standard in the context of neglect proceedings is constitutional, In re N.H., 569 A.2d 1179 (D.C.1990), neither the Supreme Court nor this court has had occasion to decide whether the clear and convincing standard-constitutionally mandated for termination of parental rights-also applies to the recently enacted permanent guardianship status in neglect proceedings.
The preponderance standard complies with due process requirements of the Constitution because § 16 — 2388(f), like the statutes analyzed in the Washington state and Colorado cases, does not operate as a final and absolute termination of the natural parents’ rights. Indeed, the statute explicitly retains many important rights for the natural parents: “Entry of a guardianship order does not terminate, the parent and child relationship, including: [t]he right of the child to inherit from his or her parents; [t]he parents’ right to visit or contact the child (except as limited by the court); [t]he parents’ right to consent to the child’s adoption; [t]he parents’ right to determine the child’s religious affiliation; and [t]he parents’ responsibility to provide financial, medical, and other support for the child.” D.C.Code § 16-2389(c). Because “the impact of guardianship is not tantamount to termination,” the statute does not call for the strictures of the clear and convincing standard.
Moreover, with respect to the risk of error, the statute reserves to the parent, under the court’s continuing jurisdiction, the right to move to terminate the guardianship order at any time, and the court must do so if it would be in the best interests of the child. D.C.Code §§ 16-2389, -2390. The statute’s lack of permanency further weighs in favor of the preponderance standard. See D.C.Code § 16-2390 (court’s jurisdiction lasts until the child’s eighteenth birthday, at which point the guardians’ legal rights to the child expire). Because the court’s interference between the natural parent and his child under the guardianship statute is significantly less than with the termination of parental rights,
III. Other Issues
Using the “preponderance of the evidence” standard, the trial court properly applied the § 16 — 2383(d) factors, and we therefore affirm.
Appellant also claims that the trial judge erred in that its “decision to leave
For the foregoing reasons, the order appealed from is
Affirmed.
. The "permanent guardianship" provided for in this act relates only to children within the neglect system, and should not be confused with the guardianship provisions contained in D.C.Code § 21-2001, et seq., which relate to protected or incapacitated individuals.
. "The court may enter, modify, or terminate a guardianship order after considering all of the evidence presented, including the Mayor's report and recommendation, and after making a determination based upon a preponder-anee of the evidence that creation, modification, or termination of the guardianship order is in the child’s best interests.” D.C.Code § 16 — 2388(f).
. Our statutory law so provides. D.C.Code § 16-2359(f) (2005) ("[a] judge may enter an order permanently terminating the parent and child relationship after considering all of the evidence presented and after making a determination based upon clear and convincing evidence that termination of the parent and child relationship is in the best interest of the child”).
. Prior to the enactment of the 2001 statute, it appears that there was no intermediary status between foster parent and adoptive parent. See In re Baby Boy C., 630 A.2d 670, 677 (D.C.1993) (child psychiatry expert suggesting a compromise whereby, through "some kind of legal arrangement,” the child could remain with the custodial adults, but with visitation rights for the natural father). According to the legislative history of this statute, the result was that too many children were forced to spend their youth migrating from one foster home to another. D.C. Council Report on Bill 13-763 at 1. To help remedy this problem, the legislation was intended to make permanent guardianship a more viable option for children whose parental rights had not been terminated. Id.
.California's intermediate appellate courts have also considered the issue, but there seems to be a split of authority which has yet to be resolved by that state's highest court. Compare In re Guardianship Stephen G., 40 Cal.App.4th 1418, 1429-32, 47 Cal.Rptr.2d 409 (1995) (due process requires clear and convincing evidence in guardianship proceedings) and In re Guardianship Jenna G., 63 Cal.App.4th 387, 391, 74 Cal.Rptr.2d 47 (1998) (same) with In re Guardianship Diana B„ 30 Cal.App.4th 1766, 1774, 36 Cal.Rptr.2d 447 (1994) (preponderance standard sufficient for guardianship proceedings). Other courts have indicated, without square holdings, that, in the context of family law, the clear and convincing standard should be limited to termination of parental rights. See, e.g., Kent K. v. Bobby M., 210 Ariz. 279, 110 P.3d 1013, 1017 (2005); In re Joshua Z., 26 Conn.App. 58, 63, 597 A.2d 842 (1991).
. The preponderance standard also could tend to further the guardianship statute's stated purposes of ensuring “that the constitutional rights of all parties are recognized and enforced in all proceedings conducted pursuant to this subchapter while ensuring that the fundamental needs of children are not subjugated to the interests of others.” D.C.Code § 16-2381(2). The statute strikes this balance by "encompassing] a number of procedures aimed at protecting children from emotional and physical harm while at the same time seeking to repair and maintain family ties.” In re R.W., supra, 10 P.3d at 1275. It provides for “a measure of flexibility ... to allow the State to provide permanence for a child without terminating the parent’s rights. The statute provides for secure placement of the child while authorizing both visitation between parent and child and continuing involvement by state agencies.” Dependency of F.S., supra, 913 P.2d at 847.
. The termination of parental rights "divests the parent and the child of all legal rights, powers, privileges, immunities, duties and obligations with respect to each other.” D.C.Code § 16-2361.
. The District also contends that, in any event, appellant’s opposition to the guardianship petition was properly denied because he failed to prove himself to be a fit, unwed father who had seized his "opportunity interest,” under the rubric of Appeal of H.R., 581 A.2d 1141 (D.C.1990). While the District's position appears to have considerable merit on this record, we need not address that issue definitively, since we perceive no abuse of discretion in the trial judge’s decision based on the factors set forth under D.C.Code § 16-2383(d). See In re K.A., supra, 484 A.2d at 997-98 (a finding of parental unfitness, separate from application of the five statutory "best interest” factors, is unnecessary to terminate parental rights, "particularly where the natural parent no longer has custody”).
. We note, however, that our view might have been otherwise if the child's preference had been called into question by opposing evidence, or if Á.G. had been a few years older. See § 16-2383(b) ("If the child is 14 years of age or older, the court shall designate the permanent guardian selected by the child unless the court finds that the designation is contrary to the child’s best interests”).
. Appellant contends that he failed to receive notice of the neglect proceedings. No such claim is shown to have been made before the trial court. Moreover, as the government points out, the claim is belied by the record, which shows that appellant or his counsel was present from the early stages of the neglect proceedings.