concurring:
In view of Judge Ferren’s concurring opinion, I write separately to explain why the panel majority refrains from deciding (1) whether E.P. grasped his opportunity interest in parenting A.H., and (2) the applicable standard of proof in the adoption proceeding (clear and convincing evidence or preponderance of the evidence) if he did not. It is unnecessary to decide either question because we uphold the trial court’s determination by clear and convincing evidence that E.P. withheld his consent to the adoption contrary to the best interest of A.H.
As a legal matter, whether E.P. grasped his opportunity interest is relevant to whether he was entitled to due process and a legal presumption in favor of placing A.H. with him because he is her biological parent.1 But in this case we are not presented with any issue of due process — E.P. undeniably received all the due process to which he could have been entitled, including the clear and convincing evidence standard of proof.2 For that same reason, *516E.P. received the full benefit of the presumption in favor of a fit biological parent. When that presumption applies in an adoption proceeding, all it means is that waiver of the biological parent’s consent requires proof of the child’s best interest by clear and convincing evidence rather than a mere preponderance of the evidence.3
To be sure, a father’s efforts (or lack thereof) to establish and maintain a parental relationship with his child are factually relevant to whether clear and convincing evidence establishes that he is withholding his consent to adoption contrary to the child’s best interest. But there is no question that the trial court properly considered E.P.’s efforts as part of the totality of relevant facts in this case. Because the court assumed that E.P. was entitled to a parental preference and properly applied the clear and convincing evidence standard in light of the relevant TPR factors and our ease law, it makes no difference that the court made no formal legal determination as to whether E.P. grasped his opportunity interest.
As to the second question we do not decide, the parties to this appeal did not even brief whether our statutory scheme (as distinct from due process) requires a trial court to apply the clear and convincing evidence standard of proof in deciding whether to waive the biological father’s consent to adoption if he did not grasp his opportunity interest. This court’s previous cases have not decided that precise question — though waiver of consent usually is bound up with a concurrent termination of parental rights, and the statute governing termination of parental rights of neglected children appears to require clear and convincing evidence that termination is in the child’s best interest whether or not the father grasped his opportunity interest.4 Assuming, as Judge Ferren argues, that our statutory scheme also requires a waiver of parental consent to adoption to be supported by clear and convincing evidence in every case, I perceive no need for the trial court in adoption proceedings ever to make a separate finding as to whether the unwed, noncustodial father grasped his opportunity interest. As I see it, that determination has no legal significance under our statutory scheme if the same standard of proof is required either way it turns out.
. See Lehr v. Robertson, 463 U.S. 248, 261-63, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Appeal of H.R., 581 A.2d 1141, 1161-63 (D.C.1990) (Ferren, J., concurring).
. See Santosky v. Kramer, 455 U.S. 745, 758, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
. See, e.g., In re S.M., 985 A.2d 413, 417 (D.C.2009) ("The presumption must necessarily give way in the face of clear and convincing evidence that requires the court, in the best interest of the child, to deny custody to the natural parent in favor of an adoptive parent.”).
. See D.C.Code § 16-2359(f) (2011 Supp.).