In re A.C.G.

SCHWELB, Associate Judge,

dissenting:

In my opinion, the trial judge in this case asked the wrong question, and doing so led him to the wrong answer. If the principal and in my view dispositive issue is framed correctly, then, as I see the case, a decree permitting A.C.G. (the paternal great aunt) to adopt S.A.S. and terminating the parental rights of E.D., the birth mother, is premature and too extreme a remedy. The best interests of the child can be preserved, protected, and even advanced if S.A.S. remains in the custody of the great aunt, but if the birth mother, who obviously cares for S.A.S. and of whom S.A.S. is obviously very fond, is not removed from her daughter’s life forever. Moreover, the trial court’s judgment also terminates any legal relationship between S.A.S. and her sister, who was sixteen years old at the time of the hearing, who is an honor student, and who has been successfully raised by the mother.

The trial judge treated this case essentially as a contest between the great aunt *445and the birth mother for custody of S.A.S. The judge wrote, for example, that

[djuring the formative years of this child’s life, petitioner has been the guiding force and has molded her into what she has become today. To separate her from this steady progressive development of her as a person in the home of the petitioner and to return her to her mother at this stage in her life would in this [cjourt’s view likely have traumatic impact on her emotional development as a person. It is this [cjourt’s humble view that she would suffer and regress in her development. This [cjourt is not prepared to take that risk with this child’s promising life in the care of the petitioner in this case.

(Emphasis added.) Obviously, the judge assumed that the only options before him were (1) to return S.A.S. to her birth mother’s custody, or (2) to terminate the birth mother’s parental rights by waiving the requirement that she consent to her daughter’s adoption. In his forty-page order, the judge discussed no other possibility. Further, for the most part, my colleagues in the majority appear to accept uncritically the trial judge’s assumption that only two choices were available.1

But contrary to the trial judge’s apparent perception, a return of S.A.S. to her mother’s custody was not the only alternative to the termination of the mother’s parental rights. The birth mother argues that, even if custody is not granted to her, then some intermediate arrangement— e.g., making the great aunt S.A.S.’ legal guardian — could be ordered without severing all of the child’s legal ties with her birth mother and sister. This alternative possibility was raised on several occasions during the evidentiary hearing, and the trial judge was plainly apprised of it. In closing argument, the birth mother’s counsel stated:

Even if the [cjourt does not feel it appropriate to move this child at this time, when this child is 15 and the caretaker is 87 years old, leave this option open. Leave the birth parents’ rights intact.

There was, and remains, ample reason not to exclude the birth mother and sister from the life of S.A.S. In his brief on appeal, counsel for the birth mother has effectively summarized the relationship between S.A.S. and her mother and sister. So far as I am aware, none of what counsel has written is disputed, and I quote from it at length:

Prior to court intervention, the mother ha[d] weekend visitation with S.A.S. at her home.... During the neglect proceedings, E.D. had weekly supervised visits at Child and Family Services Agency (hereinafter CFSA). These were quality visits that almost always included J., [S.A.S.’J teenage sister. Social worker Thomas Mrosko, who supervised 29 or 30 visits, testified that all visits were a happy time for the child, that the mother was always appropriate, that the child was generally “real happy to see her mom and they play a lot of games throughout the visit. The mother usually comes very prepared for the visit ... and the interaction is a lively good time, it would appear to me.” ... Likewise, S.A.S. and her teenage sister J. were always extremely happy to see each other. Dr. Eugene C. Stammeyer, a psychologist called by E.D., clinically observed a visit between E.D. and J. with [S.A.S.J. Initially, he observed the child with A.G. in what he described as *446her “joyful[ ] anticipation” of her mother’s arrival.... Upon the mother’s and J.’s arrival, [S.A.S.] excitedly stated “here they come, here they come!” Dr. Stammeyer described a very pleasant visit and a natural and appropriate relationship between [S.A.S.], her biological sister, and her birth mother.... Even the trial court found that “S.A.S. enjoys the visits with her mother and her sister J.R., and the mother acts appropriately in the visits with S.A.S. and shows her affection and concern.” ... The child was not adversely affected by the visits in any manner.

(Citations to record omitted.)

In my view, it is, and should be, highly unusual to terminate a mother’s parental rights where the relationship between a child and her mother and sister is as positive and productive as is the one in this case. As this court has recently reiterated, the “termination of parental rights is a ‘drastic remedy,’ and may be ordered only upon a showing of ‘clear necessity.’ In re J.G., Jr., 881 A.2d 992, 1000 (D.C.2003) (citing In re A.S.C., 671 A.2d 942, 951 n. 14 (D.C.1996)) (emphasis added); see also In re L.L., 653 A.2d 873, 887 (D.C.1995). Indeed, a birth parent has a “ ‘fundamental liberty interest’ in the care, custody or control of her child.” In re J.G., Jr., 831 A.2d at 1000; accord Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); In re L.W., 613 A.2d 350, 355 (D.C.1992). Although, in the crunch, the birth parent’s rights are subordinate to the best interests of the child, In re L.L., 653 A.2d at 880, “clear necessity” must be established. In my opinion, one cannot fairly conclude that the great aunt has sustained this formidable burden.

As we stated in In re L.L., 653 A.2d at 887,

[legislatures and courts alike have recognized that, in the words of one commentary, “no child can grow emotionally while in limbo. [S]he cannot invest except in a minimal way ... if tomorrow the relationship may be severed.”

(Citations omitted.) Further, “[ajlmost everyone agrees that a child should not be suspended permanently in foster care if any other solution is possible.” Id. at 888 (citations and ellipsis omitted). Accordingly, in many or most cases a “wait and see” option must yield to the stability of adoption and a permanent home. I agree with these propositions — indeed, I wrote the court’s opinion in In re L.L. — but in my opinion, they have little or no applicability here. Indeed, in this case, adoption and termination of the mother’s parental rights tends, to some extent, to impair stability, and to interfere with a favorable status quo, by preventing the continuation of regular visitation by the child’s mother and sister — visitation which, by all accounts, went very well for all concerned, and especially S.A.S.2

It is short-sighted to conclude that this adoption makes the home that the great aunt has provided to S.A.S. — by all accounts a warm and loving home — “permanent.” As this dissenting opinion is being written, the great aunt is eighty years of age, more than seventy-one years older than S.A.S. It is, of course, possible that the great aunt will be able to parent S.A.S. *447until S.A.S. reaches maturity, but surely that possibility is quite speculative when, by the time S.A.S. reaches the age of twenty-one, the great aunt will be more than ninety years old. It is possible, if not extremely probable, that the present arrangement is temporary, and that the great aunt’s advanced age will require a significant change within the foreseeable future in the care of S.A.S. Even when prospective adoptive parents are in their early or middle sixties, “[a]ge is a legitimate factor to be considered in adoptions!;,] especially if the petitioner could not be expected to be in good health until the child is emancipated.” Sonet v. Unknown Father, 797 S.W.2d 1, 5 (Tenn.Ct.App.1990).3 Thus, although in In re L.L. and other like cases, adoption would effectively assure stability for the child, this is not at all true in the present case.

The trial judge found that there were two “backup persons” who could, if necessary, take over for the great aunt, namely, a cousin, “who is only 67 years of age,4 and in good health,” and the cousin’s daughter, “who at time of the trial was only 41 years of age.” The judge concluded, remarkably in my view, that “the availability of these backup resources totally eliminates the issue of petitioner’s age from this case as being a bar to the adoption.” (Emphasis added.) Neither the great aunt’s cousin nor the cousin’s daughter has had a parental relationship vis-a-vis S.A.S.,5 and it is surely premature to state today that if

1. the great aunt should die or become disabled in, say, five years; and
2. the relationship between S.A.S. and her birth mother and sister, including regular visitation, has continued successfully during the five-year period,

the great aunt’s relatives would then be more appropriate custodians for S.A.S. than the mother would. Without a crystal ball, we simply cannot tell what the situation will be a few years from now. People change, and so do circumstances. The judge’s decision to sever all legal ties between S.A.S. and her birth mother and sister, without knowing what the future would bring, would not only unnecessarily limit future options, but would also bring to an end relationships with her mother and sister which have brought S.A.S. much love and happiness. The trial judge’s decision was not, in my opinion, in the best interest of S.A.S.

I recognize that S.A.S. was evidently sexually abused while in the birth mother’s custody and that two trial judges have found one of the birth mother’s sons to be responsible for the abuse. In the neglect case that preceded the adoption matter, this court stated that “[although the District’s case against the mother ... is less than overwhelming, we think it is sufficient, although perhaps barely so, to pass muster.” In re S.S., 821 A.2d 358, 359 (D.C.2003). In the present case, the trial judge, having heard additional evidence, expressed great certainty about what occurred, and I cannot say that his findings regarding the abuse and the mother’s unsatisfactory reaction to it were clearly erroneous. In my view, however, this is *448essentially irrelevant to the critical issue before us. I do not contemplate an immediate return of S.A.S. to the mother’s custody, and continued visitation, successful to date, would not create a danger of future sexual abuse.

It is sad — terribly, overwhelmingly sad — and it fills all reasonable persons with unremitting horror that this child, or any child, should have to suffer what young S.A.S. has already been compelled to endure. To the extent that the birth mother was complicit in this tragedy by her inaction and her refusal to believe or deal with what apparently happened,6 it must surely be upon her conscience until the day she dies. Nevertheless, the mother has visited S.A.S. regularly (usually in the company of the child’s older sister), and she has built up a positive relationship with her daughter. S.A.S. should not be deprived of that relationship with her mother and her sister in order to punish the mother for her unfortunate acts and omissions. Accordingly, I would reverse the judgment and remand the case with directions that the trial court deny the petition for adoption. I would leave intact the trial court’s ruling that the birth mother is not presently entitled to custody of S.A.S., and I believe that the trial court should consider guardianship or some similar arrangement to enhance the great aunt’s position. The birth mother should also be required to pay reasonable child support.

For the foregoing reasons, I respectfully dissent.

. See, e.g., maj. op., ante p. 441 ("The court found that ... a return to [the birth mother’s ] custody would cause regression in the emotional development of this seven-year old child.”) (Emphasis added.)

. According to the majority "granting guardianship to [the great aunt] would only further serve to leave S.A.S. in 'legal limbo.' " Maj. op., ante p. 444 (emphasis added). I do not agree with this characterization. First, S.A.S.’ status will realistically be in limbo even if adoption is granted, for the great aunt's advanced age makes the future uncertain. Moreover, in my opinion, the word "only” is unwarranted — adoption will also end S.A.S.' opportunity to continue a very favorable relationship with her birth mother and her sister.

.The prospective adoptive mother in Sonet was sixty-five years of age. The prospective adoptive father, who later dropped out of the case, was sixty-two. The court affirmed the denial of the petition for adoption, in part, because of the prospective adoptive mother’s age. The great aunt in this case, of course, is far older than her counterpart in Sonet.

. In my opinion, the judge's use of the word “only” in this context is somewhat remarkable. When S.A.S. is seventeen the cousin will be seventy-seven!

. As my colleagues point out, however, one of the ”backup[s]” has had significant contacts with S.A.S.

. Although the evidence supports the finding that the birth mother's actions in response to the allegation that her son had abused S.A.S. were unsatisfactory, it is surely understandable that, as a mother, she would at least initially be reluctant to believe that her own son had engaged in such unspeakable conduct.