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Full Opinion
In the Matter of the Petition of R.M.G. and E.M.G.
Appeal of J.H., Jr., et al.
District of Columbia Court of Appeals.
*779 Julian Karpoff, Arlington, Va., with whom Bobby B. Stafford, Alexandria, Va., was on brief, for appellants.
Benjamin F. Saulter, Washington, D.C., for appellees.
Before NEWMAN, Chief Judge, and MACK and FERREN, Associate Judges.
FERREN, Associate Judge:
In this case of competing petitions for adoption of a black child, we review a trial court decision granting the petition of the child's black grandparents and denying the petition of her white foster parents. Applying all relevant factors, the trial court found both families suitable to adopt the child, but concluded that the race factor tipped the scales in favor of the black grandparents.
Although race, among other factors, can be relevant in deciding between *780 competing petitions for adoption, the statute expressly incorporating that factor, as well as the trial court's application of it, must survive "strict scrutiny," in order to comport with the equal protection requirement of the Constitution. I conclude that the statute on its face withstands constitutional challenge but that the trial court's application is not sufficiently precise to satisfy the Constitution. The judgment accordingly must be reversed and the case remanded for further proceedings.
I. STATEMENT OF FACTS AND PROCEEDINGS
D. was born September 22, 1977, to unwed, teenage, black parents. By that time, her father lived in Cleveland, Ohio; her mother, in Washington, D.C. In early January 1978, D.'s mother decided to give her up for adoption and signed papers relinquishing parental rights. She did not tell the natural father. Nor did she tell his mother and stepfather, appellees R.M.G. and E.M.G.
On January 6, 1978, the Department of Human Resources placed D. with foster parents, appellants J.H. and J.H., who are white. The foster mother realized almost immediately that D. was not healthy. D. was suffering from nausea and diarrhea and, although more than three months old, weighed only 10 pounds. D., moreover, was extremely lethargic and, according to Dr. Robert Ganter, a child psychiatrist, showed signs of mental retardation. During the next year, however, D.'s foster parents nurtured her to good physical and mental health.[1]
On April 26, 1978, a few months after D. came to live with them, J.H. and J.H. filed a petition for adoption. Initially, the Department of Human Resources recommended approval. At the foster mother's insistence, however, the Department notified the child's natural father of the proposed adoption. He objected. His own mother and stepfather, R.M.G. and E.M.G., then filed a petition to adopt D. The natural father consented. The Department of Human Resources studied the grandparents' home and, withdrawing its earlier support of the foster parents' petition, recommended approval of the grandparents' petition.
At the hearing on both petitions beginning on April 27, 1979, the court received the following evidence: The foster parents have four other children three natural and a fourth, a black male, by adoption. They are a military family, living on a racially integrated military base with racially integrated schools. When asked about the problems of raising a child of another race, the foster mother testified that she and her husband had begun "an affirmative program" with their adopted male child. For example, she had obtained pre-school black history and coloring books for their son. She testified, "I make sure he knows that he's not white. I don't care how long he lives with us, he's black, and he's beautiful, and he's ours."[2]
The child's natural grandmother and her husband also testified at the hearing. The grandmother has eight children (all by a previous marriage) of whom the youngest was 14 at the time of the hearing. She also has nine grandchildren, two of whom reside at her home (one is a few months younger than D.). Although the grandmother is employed outside the home, she testified that she would take a leave of absence to be with the child. Both the grandmother and her husband added that they wanted to raise D., that they were able to care for her, *781 and that they desired to show her their love.
Doris Kirksey, a social worker, testified on behalf of the Department of Human Resources. She recommended D.'s placement with her grandparents "based on the premise that the best place for a child is. . . with blood relatives." Ms. Kirksey discounted any harm that might come to D. from removal from her foster family. She based her assessment, in part, on the advice of her agency psychiatrist, Dr. Frances Welsing.
The trial court asked Dr. Welsing to testify in person. Her position, in a nutshell, was that cross-racial adoption always will be harmful to a child and at the very least should be discouraged. She emphasized that a non-white child would encounter particular difficulties in a white home upon reaching adolescence. Dr. Welsing made her recommendation to the Department of Human Resources without having met the J.H. family. Most of Dr. Welsing's testimony concerned the problems of cross-racial adoption in a broad societal context.
In response to Dr. Welsing, the foster parents called their own expert, Dr. F. Jay Pepper. He identified several factors germane to adoption. He agreed that race should be considered, but only with respect to the attitudes of the particular family petitioning for adoption. Like Dr. Welsing, Dr. Pepper had not met J.H. and J.H.
After reciting the procedural history of the case, the trial court made the following findings and conclusions:
Colonel H_____ and his wife, Caucasians, presently have four children, one of whom is a Black adopted child. They are a stable, middle-income, affectionate family unit who will likely travel to some degree because of the father's military career. They clearly love the child in question.
The G_____ family is a stable Black family of modest means. Mr. G_____ is the second husband of Mrs. G_____, her first husband having died. She has raised eight children and also has nine grandchildren. At least two of the grandchildren reside in the G_____ home. Mr. and Mrs. G_____ are both employed. If the baby is placed in her care, she plans to take a leave of absence to be with the child. The Court is impressed with the affectionate nature and willingness of the G_____ family to sacrifice.
In any adoption, the paramount concern is the best interests of the child. In that regard, the Court should consider an array of factors. Among them are:
1. The age of the child.
2. The stability of the adopting family and reasons for seeking an adoption.
3. Financial and other resources available to the adopting family.
4. Existence of love and affection between the persons involved.
5. Blood relationships, if any.
6. Race.
7. Any other significant factors.
It is equally important that the Court weigh these factors in terms of past, present and future.
It is seen that the child is very young less than two years old. In her young life she has already undergone significant and probably traumatic changes. According to expert testimony, these changes or shifts are permanently recorded by the mind. Similarly, it is agreed that sudden changes of the family setting or other vital parts of one's environment can cause uncertainty, emotional distress and a sense of insecurity. Having regard for the history of this case, it is predictable that another change in the life of this child will cause some degree of injury or harm to her.
The pivotal question becomes, given the available alternatives, evaluated now and for the future, what decision is prudent as being in the child's best interests? Some aspects of this case are clear. Both families have shown love and concern for the child. Both families are reasonably stable; the H_____ family has greater financial resources.
*782 With regard to blood relationships, the evidence indicates that it is a factor but certainly not conclusive. Thus, in the absence of love, affection, stability, and other supportive traits, blood relationship alone confers no special right of parenting. Yet the question should also be weighed in the interest of family tradition, culture and other intangibles.
The question of race is important. It is interesting that all the experts who appeared in this matter agreed that not enough work has been done on the subject as it pertains to adoption. However unpleasant, it would seem that race is a problem which must be considered and should not be ignored or minimized. Conversely, there are not conclusive absolutes to be drawn on the basis of race. It would seem, however, entirely reasonable that as a child grows older the ramifications of this problem would increase. At a later stage, notwithstanding love and affection, severe questions of identity arising from the adoption and race most probably would evolve. In the world at large, as the circle of contacts and routines widens, there are countless adjustments which must be made. Given the circumstances in this case, the child's present status is relatively secure and carefree. The future, in each of its stages childhood, adolescence, young adulthood, etc. would likely accentuate these vulnerable points. The Court does not conclude such a family could not sustain itself. Rather the question is, is there not a better alternative? The Court is concerned that little medical or scientific attention has been devoted to this problem. The Court is concerned that, without fault, the H_____s stand to lose a beloved member of their family. However, our test remains the best interest of the child. It is believed that applying all of the factors to be considered, and evaluating the question in terms of past, present and future, that the appropriate alternative is adoption of the child by the G_____ family.
On June 1, 1979, the trial court granted the grandparents, E.M.G. and R.M.G., an "Interlocutory Decree of Adoption," which stated that the decree "shall automatically become final on [December 3, 1979], unless it shall in the interim have been set aside for good cause shown."[3] On June 6, 1979, the foster parents filed a "Supplemental Motion For Amendment of and Additions to Findings of Fact." The trial court denied the motion on June 12, 1979, and on July 3, 1979, also denied the foster parents' motion for a stay pending appeal.[4] The foster parents filed a timely appeal of the June 1 interlocutory decree on June 6, 1979.[5]
*783 II. THE STATUTE: ITS CONSTRUCTION AND APPLICATION
A petition for adoption "shall contain" information about the races of the petitioner and the prospective adoptee, see D.C. Code 1973, § 16-305(4) and (5),[6] unless "the prospective adoptee is an adult" or "the petitioner is a spouse of the natural parent" who consents to the adoption. Id. 1978 Supp., § 16-308.[7] The adoption statute, therefore, permits the court to take race into account, although it does not provide any guidance as to how the court is to do it. Nor does the legislative history. Instead, the statute, id. 1973, § 16-309, simply states:
(b) . . . [T]he court may enter a final or interlocutory decree of adoption when it is satisfied that:
(1) The prospective adoptee is physically, mentally, and otherwise suitable for adoption by the petitioner;
(2) the petitioner is fit and able to give the prospective adoptee a proper home and education; and
(3) the adoption will be for the best interests of the prospective adoptee.
*784 Only two reported decisions in this jurisdiction address the question of race in an adoption proceeding. In In re Adoption of a Minor, 97 U.S.App.D.C. 99, 228 F.2d 446 (1955) (interpreting predecessor statute), the court held that the trial court improperly had denied a black stepfather's petition to adopt, with his wife's consent, his wife's white son. The court rejected the trial court's reasoning that the white child "`might lose the social status of a white man by reason'" of his adoption by a black. Id. at 100, 228 F.2d at 447. The court reasoned:
Nor can denial of the adoption rest on a distinction between the "social status" of whites and Negroes. There may be reasons why a difference in race, or religion, may have relevance in adoption proceedings. But that factor alone cannot be decisive in determining the child's welfare. It does not permit a court to ignore all other relevant considerations. Here we think those other considerations have controlling weight. [Id. at 101, 228 F.2d at 448 (footnote omitted).]
The court thus left open the possibility that race could be relevant to an adoption decision but did not specify what circumstances might justify its use.[8]
More recently, this court expressly confirmed the relevance of race to adoption. In In re DeF, D.C.App., 307 A.2d 737 (1973), a mixed-race couple, wishing to adopt a child of mixed race, refused to indicate their race or religion on the adoption petition, alleging that the statutory requirement was unconstitutional. Id. at 738. We cited In re Adoption of a Minor, supra, for the proposition that race can be a relevant factor, In re DeF, supra at 739 n. 3, but we declined to address the constitutional issue. We noted that there was no real question of the parties' race or the merits of the petition; thus, we approved the adoption as if the petition had been amended with the information the statute required. Id. at 739-40.[9]
In summary, neither the adoption statute itself nor the cases interpreting it provide much guidance as to whether race may be relevant to an adoption, consistent with the Constitution especially in an adoption contest. Petitioners accordingly present a new constitutional challenge, alleging broadly that the "equal protection doctrine of the Constitution prohibits the use of skin color-defined race as a relevant issue in an adoption."[10]
III. STRICT OR INTERMEDIATE SCRUTINY?
Over the years, the Supreme Court has held that a statute which on its face takes race into account is constitutionally suspect and must receive "strict scrutiny." Regents of the University of California v. Bakke, 438 U.S. 265, 290-91, 98 S.Ct. 2733, 2748, 57 L.Ed.2d 750 (1978) (Powell, J., announcing *785 judgment of the court) (hereafter Powell, J., opinion); McLaughlin v. Florida, 379 U.S. 184, 191-92, 85 S.Ct. 283, 287-288, 13 L.Ed.2d 222 (1964); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944). As a result, racial classifications will be held constitutional only if shown to advance a governmental interest that is "compelling," Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972); Graham v. Richardson, 403 U.S. 365, 375, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534 (1971), or "overriding," Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); McLaughlin, supra 379 U.S. at 192, 85 S.Ct. at 288, and if the particular use of race is "necessary" to accomplish that purpose. Bakke, supra 438 U.S. at 305, 98 S.Ct. at 2756 (Powell, J., opinion); In re Griffiths, 413 U.S. 717, 722, 93 S.Ct. 2851, 2855, 37 L.Ed.2d 910 (1973); Dunn, supra 405 U.S. at 342, 92 S.Ct. at 1003; McLaughlin, supra 379 U.S. at 196, 85 S.Ct. at 290. The Court has said on a number of occasions, moreover, that a racial classification can be necessary to serve a compelling governmental interest only when "precisely tailored" to achieve its legitimate purpose. Plyler v. Doe, ___ U.S. ___, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982); accord Dunn, supra at 405 U.S. at 343, 92 S.Ct. at 1003; Zablocki v. Redhail, 343 U.S. 374, 388, 98 S.Ct. 673, 682, 54 L.Ed.2d 618 (1978). As a consequence, some members of the Court have noted Professor Gunther's observation that, given the severity of the scrutiny, racial classifications generally do not survive; such scrutiny is "`strict in theory and fatal in fact.'" Bakke, supra 438 U.S. at 362, 98 S.Ct. at 2784 (Brennan, J., joined by White, Marshall, and Blackmun, JJ., concurring in the judgment in part and dissenting in part) (hereafter Brennan, J., opinion) (quoting Gunther, The Supreme Court, 1971 Term Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV.L.REV. 1, 8 (1972)).
More recently, however, in the context of affirmative action plans intended to remedy past discrimination, four Justices concluded that "benign" racial classifications permit an intermediate standard of review between strict scrutiny and the more generally applicable "rational basis" test.[11]Fullilove v. Klutznick, 448 U.S. 448, 519, 100 S.Ct. 2758, 2795, 65 L.Ed.2d 902 (1980) (Marshall, J., joined by Brennan and Blackmun, JJ., concurring in the judgment) (hereafter Marshall, J., concurring); Bakke, supra 438 U.S. at 357, 361-62, 98 S.Ct. at 2782, 2784 (Brennan, J., opinion).[12] Under the intermediate approach, to justify an allegedly benign racial classification "an important and articulated purpose for its use must be shown." Id. at 361, 98 S.Ct. at 2784 (Brennan, J., opinion). More specifically, it must be a purpose that serves an important governmental objective to which the prescribed use of race is substantially related and which in contrast with the usual situation when race is invoked does not "stigmatize[] any group . . .," id., by reflecting a "presumption that one race is inferior to another" or by putting "the weight of government behind racial hatred and separatism." Id. at 357-58, 98 S.Ct. at 2782 (Brennan, J., opinion); accord Fullilove, *786 supra 448 U.S. at 519, 100 S.Ct. at 2795 (Marshall, J., concurring).[13]
This acceptance of benign racial classifications, intended to further governmental interests that, while not compelling, are "important," id., or "substantial," Plyler, supra 102 S.Ct. at 2395, reflects the intermediate or "middle-tier" scrutiny which the Court developed a number of years earlier to address sensitive, but not inherently suspect, classifications such as gender, Craig v. Boren, 429 U.S. 190, 197-99, 97 S.Ct. 451, 456-457, 50 L.Ed.2d 397 (1976); id. at 210, 97 S.Ct. at 463 (Powell, J., concurring); see Mississippi University for Women v. Hogan, ___ U.S. ___, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982), and, more recently, alien children. Plyler, supra. See generally L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-30, at 1082 (1978).
A majority of the Court, however, has not accepted this intermediate review standard for benign racial classifications of any sort. But even if that standard were applicable in the context of affirmative action to remedy past discrimination, as four Justices have urged, I would not find it applicable in a family-law context, where racial classifications over the years have resulted in particularly vivid examples of invidious discrimination. See Part IV.B.1. infra. I therefore conclude that strict scrutiny is required here; statutory recognition of race as a factor to be weighed in an adoption proceeding "call[s] for the most exacting judicial examination," on the ground that "[r]acial and ethnic distinctions of any sort are inherently suspect," Bakke, supra 438 U.S. at 291, 98 S.Ct. at 2748 (Powell, J., opinion). It follows that this "racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification." Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979) (upheld Massachusetts lifetime veterans preference under state civil service system against allegation of gender-based discrimination); accord Washington v. Seattle School District No. 1, ___ U.S. ___, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982); Crawford v. Los Angeles Board of Education, ___ U.S. ___, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982). I proceed, accordingly, to apply the traditional, strict standard of review.
IV. STRICT SCRUTINY OF THE ADOPTION STATUTE, AS AUTHORIZED AND APPLIED.
The cases I have found concerning the use of race in an adoption statute do not discuss whether advancement of a child's best interest is a "compelling" governmental interest. See, e.g., In re Adoption of a Minor, supra; Drummond v. Fulton County Department of Family & Children's Services, 563 F.2d 1200 (5th Cir.1977) (en banc), cert. denied, 437 U.S. 910, 98 S.Ct. 3103, 57 L.Ed.2d 1141 (1978); Compos v. McKeithen, 341 F.Supp. 264 (E.D.La.1972) (three-judge court); Beazley v. Davis, 92 Nev. 81, 545 P.2d 206 (1976). Implicitly, though, the courts treat it as such and I agree. The critical question, then, is whether the particular use of race, as authorized and applied, is "necessary" and thus precisely enough "tailored" to achieve the child's best interest.
A. Statutory Authorization of the Race Factor
I turn, first, to statutory authorization. As noted earlier, the statute does not bar cross-racial adoption, which of course would be fatal. See In re Adoption of a Minor, supra at 101, 228 F.2d at 448; Compos, supra at 268. Thus, the racial classification is sustainable, if at all, only because it is one among a number of relevant factors. See In re Adoption of a Minor, supra at 101, 228 F.2d at 448; Drummond, supra at 1204-05; Compos, supra at 266.
*787 There is, however, an important caveat: if race is to be a relevant factor, the court cannot properly weight it, either automatically or presumptively i.e., without regard to evidence for or against cross-racial adoption. To do so would add a racially discriminatory policy to evaluation of the child's best interest. As a consequence, in an adoption contest, petitioners of a particular race would receive a head start, contrary to the constitutional requirement that the use of race which is "presumptively invalid" must be affirmatively justified. Feeney, supra 442 U.S. at 272, 99 S.Ct. at 2292; see Compos, supra at 266; cf. In re Marriage of Kramer, 297 N.W.2d 359, 361 (Iowa 1980) (in custody proceeding "no assumptions are automatically warranted by racial identity"; race can be a factor only if there is some "demonstrated relevancy").[14]
The question thus becomes: whether statutory authority to consider race among the factors relevant to adoption, without preference for the race of any party, can ever be "necessary" for a determination of the child's best interest. Appellants say it cannot be, alleging that the "equal protection doctrine of the Constitution prohibits the use of skin color-defined race as a relevant issue in an adoption." I cannot agree with that unqualified statement.
Whether adopted by parents of their own or another race, adoptees often find it difficult to establish a sense of identity.[15] "Identity," in this context, has at least three components: (1) a sense of "belonging" in a stable family and community; (2) a feeling of self-esteem and confidence; and (3) "survival skills" that enable the child to cope with the world outside the family.[16] One's sense of identity, therefore, includes perceptions of oneself as both an individual and a social being. While adoptive parents' attitudes toward the adoption and their child are not the only influence on that child, these parental attitudes do affect, to a significant extent, whether the child will feel secure and confident in the family and community.[17] Because race may be highly relevant to these parental attitudes, see note 17 supra as the expert witnesses of both parties confirmed it is relevant to the larger issue of the child's best interest. See In re DeF, supra at 739.
I conclude, accordingly, that in a significant number of instances where prospects for adoption are evaluated, those who are responsible for a recommendation and decision social workers from the Department of Human Resources, expert witnesses at trial, and the trial court itself will not be able to focus adequately on an adoptive child's sense of identity, and thus on the child's best interest, without considering *788 race. Statutory authority for the court to take race into account, therefore, can be critically important in adoption proceedings. When considered among a number of factors, on the basis of evidence, without automatic or presumptive preference for an adoptive parent of a particular race, that criterion does not reflect a "racial slur or stigma" against any group. United Jewish Organizations v. Carey, 430 U.S. 144, 165, 97 S.Ct. 996, 1009, 51 L.Ed.2d 229 (1977) (plurality opinion); see Drummond, supra at 1205. It is a criterion that markedly contrasts with the impermissible use of race both in facially discriminatory statutes[18] and in facially neutral statutes some referring to race,[19] others not[20] masking invidious racial discrimination in the law either as enacted[21] or as administered.[22]
In sum, an inherently suspect, indeed presumptively invalid, racial classification in the adoption statute is, in a constitutional sense, necessary to advance a compelling governmental interest: the best interest of the child. It thus survives strict scrutiny a result that is unusual, as racial classifications go, but not precluded.
B. Judicial Application of the Race Factor
The fact that the adoption statute does not per se reflect an unconstitutional denial of equal protection does not end our inquiry; for although as a general proposition the use of race, as one factor, may be necessary to serve the best interest of the child, there also is risk that this classification may be invoked in a racially discriminatory fashion. Thus, there remains the significant question whether the racial classification in the adoption statute, as applied in this particular case, is precisely enough tailored to the child's best interest to survive strict scrutiny, or suffers instead from a more generalized application that possibly reflects invidious discrimination.
I therefore turn to application of the statute. To provide perspective to examine the risk of invidious discrimination I begin with an historical look at the exercise of judicial discretion, applied to race, in adoption and child custody proceedings.
1. Historical Perspective
Thirty years ago, the Supreme Court of Washington awarded custody of the children of a black father and a white mother to the father simply because they resembled him:
We do not question the mother's love for her children. But we have always stated, in divorce cases, that our primary *789 concern is the welfare of the children. We owe that duty to all children brought into a divorce court, regardless of race, color, or creed. These unfortunate girls, through no fault of their own, are the victims of a mixed marriage and a broken home. They will have a much better opportunity to take their rightful place in society if they are brought up among their own people. [Ward v. Ward, 36 Wash.2d 143, 144-145, 216 P.2d 755, 756 (1950).][23]
Abhorring such views, many professionals by the mid-1950's began to question the validity of statutes[24] and court decisions[25] barring cross-racial adoption, and many adoption agencies became willing to place black children in white homes.[26] Southern adoption agencies, however, were still unreceptive to the idea. One Georgia agency, for example, responded in 1954 to a Child Welfare League of America study by citing the state's anti-miscegenation statute: "Our laws prohibit interracial marriage. A child reared in a home with parents of a different race will be apt to meet and want to marry a person of his or her parents' background, not his own."[27]