*1 States, Lee til trial. United They cussed at contend D.C. argument.4 oral (1978). App., 385 A.2d Reversal is tape recording prearrest nego- that a of the warranted, however, only where there is videotape tiations and a arrest scene ap- substantially prejudiced error which has improperly were admitted into evidence be- Id. at 164. In pellants’ rights. light of our prejudicial cause were and they unfairly that themselves holding tapes were not in ad- they because had not been disclosed unfairly prejudicial, considering that de- vance to defense counsel. have requested fense counsel could a recess Both were tapes potentially highly tapes they to hear and view the before were prejudicial, permitting the inference that so, jury, to the but did not do and played appellants extremely dangerous were there confu- bearing in mind both that was guilty simply the inference that were they a for request discovery sion as to whether they because refused to submit to arrest government had made and that been However, immediately. tapes because only recently videotape, had obtained the value, had least as cor probative some at judge we conclude that did not evidence, roborative because their actual admitting tapes abuse his discretion in prejudicial impact probably was minimal into evidence. (since tapes were cumulative of other sum, no the trial court committed re- evidence), judge gave and because the trial any alleged respect. versible error jury, (Record instruction to the cautionary Affirmed. 1077-78), trial we conclude that judge did not abuse his discretion admit
ting tapes despite prejudi their possible
cial effect.
Regarding the failure
government tapes to disclose the to defense trial, appellants rely
counsel in advance of of the Petition of In the Matter upon which allows a de Super.Ct.Cr.R. R.M.G. and E.M.G. fendant his own recorded state discover evidence, ments as the video and real such J.H., Jr., Appeal et al. tape, government’s which is within the cus No. 79-747. Assuming appellants had tody. Appeals. Court of request made a for all such discover District of Columbia proper dis (which government able materials Jan. 1981. Argued disclosure in putes), assuming late 29, 1982. Decided Dec. require the instant case did violate 16, the trial purposes ments and of Rule apply sanctions had discretion un- withholding evidence government’s (1979); v. Unit Williams Appellant argues 408 A.2d 370-71 two additional errors. Hines States, denying D.C.App., A.2d ed the trial court erred He asserts that show, required admitting Appellant as acquittal into has failed to and in his motion for evidence, grounds money jewelry of insufficient taken from reversal on evidence the produced government no point, evi “the has him when he was arrested. On the latter might jewelry mind argues money which a reasonable were dence from he beyond fairly guilt reasonable doubt.” properly belonging to ADE. infer never identified as Likewise, Frendak, supra no ample there was reject at 371. There was We both contentions. admission of the linking appellant discretion in the Hines abuse of evidence circumstantial upon money jewelry his from Hines taken at the ADE of- to the events which occurred custody arrest, established question, since a chain and there is evi- fices on the date showing had been taken that those items dentiary support element of the of- for each Hines, Jennings codefendant Lee identified and since his fense of which he was convicted. See carrying ADE States, property D.C.App., Hines had been 431 A.2d v. United States, D.C.App., property. (1981); Frendak v. United *4 Karpoff, Va.,
Julian Arlington, with whom Stafford, Alexandria, Bobby Va., B. was on brief, appellants.
Benjamin Saulter, F. D.C., Washington, for appellees. NEWMAN, Judge,
Before Chief FERREN, Judges. MACK and Associate FERREN, Judge: Associate petitions for competing case of child, we a trial adoption of black review petition granting court decision denying grandparents child’s black parents. Ap- petition her white foster factors, the trial court plying all relevant adopt both families suitable found child, race factor concluded but black scales in favor tipped the grandparents. race, among other fac
Although tors, between deciding can be relevant competing petitions for the stat- approval. mended At the foster mother’s factor, insistence, however, ute expressly incorporating Department noti- it, well application as the trial court’s fied the child’s natural father of the pro- objected. must survive “strict He scrutiny,” posed adoption. order His own comport E.M.G., with the equal protection require- stepfather, mother and R.M.G. and ment of the Constitution. conclude that petition adopt then filed a D. The natu- the statute on its face withstands constitu- Department ral father consented. The tional challenge but that the trial court’s grandpar- Human Resources studied the application is not sufficiently precise and, ents’ withdrawing sup- home its earlier ac- satisfy judgment the Constitution. The port of parents’ petition, the foster recom- cordingly must be reversed and the case grandparents’ mended approval peti- remanded for further proceedings. tion. hearing petitions begin- At the both on I. AND STATEMENT OF FACTS 27, 1979, April the court received ning PROCEEDINGS following evidence: The foster 22, 1977, D. was September born have four other children —three natural and unwed, parents. By black teenage, fourth, male, by adoption. They a black
time, Cleveland, Ohio; her father lived in military family, living racially are a on a mother, Washington, her In early D.C. base with inte- integrated military racially give D.’s mother decided to January grated schools. When asked about up signed papers her relin- race, of another problems raising child quishing parental rights. did not tell She the foster mother testified that she and her *5 his the natural father. Nor did she tell begun pro- “an affirmative husband had stepfather, appellees mother and R.M.G. gram” adopted with their male child. For and E.M.G. example, pre-school she had obtained black 6, 1978, books for their son. January Department history coloring On and testified, “I make sure he knows that placed Human Resources D. foster She J.H., long who are he’s not white. I don’t care how he parents, appellants J.H. and black, beautiful, us, he’s and he’s white. The foster mother realized almost lives with healthy. that D. was not D. and he’s ours.”2 immediately from nausea and diarrhea suffering was and her grandmother The child’s natural old, and, although more than three months hearing. at the The husband also testified moreover, D., weighed only pounds. (all eight has children a grandmother and, lethargic according to Dr. extremely youngest previous marriage) of whom Ganter, psychiatrist, Robert a child showed hearing. time of the She also was 14 at the During signs mental retardation. two of whom reside grandchildren, has nine however, nur- year, parents next D.’s foster (one younger a few months at her home is mental good physical tured her to and D.). grandmother is em- Although than health.1 home, she testified that outside the ployed of absence to be 26, 1978, D. she would take a leave April a few months after On them, grandmother Both the came to live with J.H. and J.H. filed with the child. wanted to they De- her husband added that adoption. Initially, petition her, D., care for were able to they Resources recom- raise that partment Human that, although testified adoption hearing April The foster mother also Dr. 2. 1. At the adjustment period adopted “had an son had had “bloomed enor- her Ganter testified that D. mously” by a “high average he was seen in his life” at which time was of to above problem psychologist, not with his average intelligence.” his “was trial court conclud- The color, adoption. parents’] He was con- but with his “As a direct result of foster [the ed: efforts, love, given he special birth to him. Now the child vinced that I had affection and progressing adopted, good he’s prospered present health.” knows he was beautifully.” to her state G_ grandchildren reside in the they show her their that desired to G_ love. Mr. and Mrs. are both home. placed If the is in her baby employed. worker, Doris Kirksey, social testified leave of care, plans she take a absence on Department behalf of Human im- to be with the child. The Court is D.’s place- Resources. She recommended pressed with affectionate nature grandparents ment with her “based on the premise G_family that the best for a of the to sac- place willingness child ... Kirksey with blood relatives.” Ms. dis- rifice. come any might counted harm that to D. paramount con- any In family.
from removal from her foster She In the best interests of child. cern is assessment, part, based her advice should consider an regard, Court psychiatrist, of her agency Dr. Frances them Among of factors. are: array Welsing. age 1. The the child. Welsing testi- trial asked Dr. stability adopting family 2. nutshell, fy person. position, Her in a seeking adoption. and reasons for always was that cross-racial will Financial and other resources avail- 3. very be harmful child and —at family. the adopting able to be discouraged. empha- least —should She Existence of love and affection be- 4. sized that a non-white child would encoun- persons involved. tween particular ter difficulties in a white home upon reaching Dr. Welsing adolescence. any. relationships, Blood if 5. made her recommendation to the Depart- Race. 6. ment of Human having Resources without other Any significant factors. met the family. J.H. of Dr. Welsing’s Most important It equally Court testimony problems concerned the of cross- weigh past, these factors in terms of racial adoption in a broad societal context. present and future. Dr. response Welsing, the foster very young— It is seen the child expert, Jay called their own Dr. F. years young less two old. In her life than Pepper. He ger- identified several factors already undergone significant she has mane adoption. agreed He *6 changes. Ac- probably and traumatic considered, should respect but expert testimony, these cording to to the attitudes of particular family the shifts record- changes permanently or are petitioning adoption. Welsing, for Like Dr. ed it Similarly, agreed the mind. is Dr. had not Pepper met J.H. and J.H. setting changes family that sudden After reciting procedural the of history parts or vital of one’s environment other case, the trial following the court made the emotional distress uncertainty, can cause findings and conclusions: regard insecurity. Having and sense of H_and wife, Colonel his Cauca- case, history predicta- for of it the this sians, children, of presently have four one in the life of this change ble another Black They whom is a child. are adopted of degree injury will cause some child middle-income, stable, affectionate her. harm to travel family likely unit who will to some becomes, question given pivotal The degree military of father’s because the alternatives, evaluated now the available They clearly career. love child in future, pru- decision is what question. best interests? being the child’s dent stable G_family The is a Black G_is are clear. Both of this case aspects Some Mr. of modest means. family concern for shown love and families have G-, her the second husband of Mrs. reasonably Both families child. having first husband died. She has stable; H_family greater has children and also has nine eight
raised At two resources. grandchildren. least financial adulthood, regard relationships, With to blood etc.—would likely accentuate points. evidence indicates that it is a factor these vulnerable The but Court does Thus, family not conclude such a could certainly not conclusive. in the not sus- love, affection, is, tain stability, question absence of itself. Rather there not a better The traits, relationship other blood alternative? supportive Court is concerned that little medical or right parent- alone no special confers scientific attention has been devoted to ing. question Yet should also be problem. The Court is concerned weighed in the interest of tradi- H_s that, fault, without stand to tion, intangibles. culture and other family. lose a beloved member of their question important. of race is It However, our test the best remains inter- interesting experts ap- that all the who est of the child. It is believed apply- peared agreed in this matter that not considered, ing all of the factors to be on the sub- enough work has been done evaluating in terms of ject as it However pertains adoption. future, past, present appro- that the that race is a unpleasant, would seem alternative is of the child priate adoption problem which must be considered and G_family. ignored should not be or minimized. Conversely, there are not conclusive abso- 1, 1979, On June the trial court lutes to be drawn on the basis of race. It granted grandparents, E.M.G. and seem, however, entirely reasonable R.M.G., “Interlocutory Decree of grows that as a child older the ramifica- Adoption,” which the decree stated At problem tions of this would increase. final on automatically “shall become [De love and stage, notwithstanding a later 3, 1979], unless it shall in the inter cember affection, questions identity severe good have been set cause im aside arising from the and race most 6, 1979, par the foster shown.”3 On June probably would evolve. In the world at ents filed a Motion For “Supplemental large, as the circle of contacts and rou- Findings Additions Amendment widens, adjust- tines there are countless of Fact.” The trial court denied the motion 3, 1979, ments which must be made. Given the 12, 1979, July on June and on also case, circumstances in this the child’s stay motion for a parents’ denied foster present relatively status is secure and filed a pending appeal.4 The foster future, timely appeal interlocutory carefree. in each of its of the June 1 adolescence, decree on June 1979.5 stages childhood, young — stay 16-309(c), dissolving anticipating an order 3. Under D.C.Code the trial § —filed Court, petition stay Supreme for a court could not issue a final decree of September 1980. As until had months with her which was denied on the child lived six argument January adopting parents. permits The statute the date oral — *7 which, interlocutory parties informed this court court to enter decree —counsel for both an parents. terms, by that D. remains with the foster its will become final after six months good unless the order is set aside for cause Id., 5.Interlocutory appealable during period. to this shown the interim 16— orders § specified 309(d). only conditions court under certain 1973, applicable in this case. See D.C.Code Nonetheless, although ll-721(a)(2). parents petitioned 4. The foster this court for a § stay properly adoption pending appeal. was labeled as an “inter of We court’s order the order order,” id., 16-309(c), (d); 21, They locutory petition August note see § denied the appealable supra, petitioned rehearing we conclude the order for en banc. On October 3 1973, order, 11-721(a)(1), 19, 1979, stay § of the trial court’s as a final D.C.Code we issued a finality. practical pending of See while under the doctrine order further order of this court Corp., Gillespie petition. August Steel 379 U.S. v. United States we considered the en banc On 310-311, 308, 11, 1980, 148, 152-53, petition rehearing 13 L.Ed.2d for 85 S.Ct. we denied the 19, (1964); stay Industrial Loan of v. Beneficial en banc but did not lift the October 199 Cohen 541, 1221, perhaps Corp., 93 L.Ed. U.S. 69 S.Ct. foster 337 1979. Counsel for the —
783 16-309, 1973, id. statute, simply the § ITS II. THE STATUTE: CONSTRUC- AND APPLICATION TION states: adoption for “shall contain” petition may A a or court enter final (b) ... [T]he petition- races of the
information about the adoption of when it interlocutory decree see D.C. adoptee, prospective er and the is that: satisfied “the 16-305(4) (5),6 and unless Code § physical- is prospective adoptee (1) The or adoptee is an “the prospective adult” mentally, otherwise suitable for ly, and parent” spouse a of the natural petitioner is by petitioner; the adoption Id. adoption. to who the consents give is fit and able to (2) petitioner the statute, The adoption 16-308.7 Supp., § adoptee proper home prospective the take race therefore, the court permits education; and and account, provide although it does not into will best be for the (3) adoption the the is do it. any guidance to how court adoptee. Instead, of prospective interests the legislative history. Nor does the address, name, (2) age, Rachal, D.C.App., business or em- the (1949); 1202, Rachal v. (1980); Bearstop Bearstop, petitioner, ployment and the name of A.2d of the (1977). any, petitioner; D.C.App., employer, But for 377 A.2d 407-08 if of the the court, supra, stay note 3 (3) relationship, any, prospec- the issued this see if the the of the to remove D. from her foster home petitioner; order adoptee to the tive irreparable harm to both D. and her threatened religion prospective (4) the race and of the Rachal, (order deny parents. foster See parents; parent adoptee, natural or or his ing rights parent threatened both visitation religion petitioner; (5) of the the race and harm). irreparable parent It and child with prospective adoptee (6) the date that contrary be to the best interests of the residing petitioner; and commenced her into new for child to allow to settle may (7) any change be de- of name which then, assuming prob no six and months sired. adoption developed lem final, and the decree became any above facts is unknown to of the When appeal taking an of the allow order petitioner petitioner, shall this state away “The child danger from her earlier environment. any facts is known When of the above fact. justice by delay” denying in this Commissioner, child-plac- aor licensed to the clearly against outweighs any situation concern policy ing agency as a matter of social piecemeal “the and costs re inconvenience petitioner, them to the disclose declines might contrary view” which lead us to a con may an disclosed to the court in the facts 152-53, Gillespie, supra clusion. 379 U.S. at by the exhibit filed Commissioner or Finally, appellants S.Ct. at 310-311. because agency more one with the court. If than thirty appeal days filed of the trial this within joins petition, require- petitioner in a “Motion Amendment court’s denial their apply to each. ments of this section Fact,” Findings of appeal To And Additions Of provision originally Congress enacted the timely. II(a)(1) D.C.App.R. is and (Pub.L. 16-214 § 1954. See D.C.Code (1954)). 7§ 68 Stat. ch. 272 No. provides: 16-305 § 6.D.C.Code Supp., provides: 16-308 § 7.D.C.Code person petition A for the filed prospective adoptee Investigations under or of the shall be oath affirmation when petitioner titling spouse par- and shall be petitioner thereof sub- of natural or adult parte stantially “Ex in the as follows: matter ent. petition - dispense investiga- with the adoption.” petition exhibits an- or the tion, interlocutory report, provid- decree following in- nexed thereto shall contain the chapter when: ed for formation: adult; (1) prospective adoptee is an or sex, date, name, (1)the place of birth (2) petitioner spouse is a of the natural names, adoptee, prospective of the addresses, prospective adoptee parent par- natural residences of the parent to the natural consents except ents, petitioner, if known adoption. joins petition for adoption proceeding consented above, (2) specified in In the circumstances *8 by to placing agency, or a licensed child- Commissioner petition not contain the information need names, addresses and by specified concerning religion may of the natural not residences (4) (5) subparagraphs of section 16-305. forth; set 784
Only
reported
two
juris-
decisions in this
their race or religion on
adoption
peti-
diction address the question of race in an
tion, alleging that
the statutory require-
adoption proceeding.
In Adoption
In
re
of ment was unconstitutional.
Id. at 738. We
Minor,
99,
97 U.S.App.D.C.
More
account
recently,
expressly
con-
suspect
scrutiny.”
firmed
and must receive “strict
adoption.
the relevance of race to
DeF,
(1973),
In In re
D.C.App.,
Regents
University
785
Bakke,
362,
supra 438
at
98
at
nouncing judgment
court) (hereafter
U.S.
S.Ct.
Florida,
Powell, J.,
White,
McLaughlin
(Brennan, J., joined by
v.
Mar
opinion);
2784
283, 287-288,
184, 191-92,
Blackmun,
379
85
JJ., concurring
U.S.
S.Ct.
shall, and
(1964); Bolling
Sharpe,
love, supra
519, 100
448 U.S. at
at
S.Ct.
2795
erence under state civil service system
(Marshall, J., concurring).13
against allegation of gender-based discrimi-
nation);
Washington
accord
v. Seattle
acceptance
This
of benign racial classifi
——1,
School District No.
-,
U.S.
102
cations,
intended to further governmental
3187,
S.Ct.
73
(1982);
L.Ed.2d 896
Crawford
that,
interests
compelling,
while not
-
Angeles
v. Los
Education,
Board of
id.,
“important,”
“substantial,” Plyler,
-,
3211,
102
U.S.
S.Ct.
therefore
scrutiny
conclude that strict
best interest.
here;
required
statutory recognition
race
as a factor to be weighed
in an
A.
Authorization of
Statutory
the Race
proceeding
exacting
the most
“call[s]
Factor
judicial examination,” on
ground
first,
turn,
statutory
authoriza
“[rjacial and
any
ethnic distinctions of
sort
earlier,
As
tion.
noted
the statute does not
Bakke,
are inherently suspect,”
supra 438
bar
cross-racial
which of course
(Powell, J.,
U.S. at
There
race,
often find it diffi-
adoptees
factor,
or another
if
is to
a relevant
caveat:
identity.15
a sense of
to establish
cult
it,
weight
either
properly
court cannot
*11
context,
this
has at
least
“Identity,” in
with
presumptively i.e.,
or
automatically
—
“belong-
components:
(1) a sense of
three
against
out
or
regard to evidence —for
(2)
community;
and
family
a stable
ing” in
so would add a
adoption.
cross-racial
To do
confidence;
feeling
a
self-esteem and
of
policy to evaluation
racially discriminatory
enable the
(3) “survival skills” that
a
of the child’s best interest. As
conse
with the world outside
cope
child to
contest, petitioners
quence,
adoption
in an
therefore,
identity,
One's sense of
family.16
a head
race would receive
particular
an
perceptions of oneself
both
includes
require
start,
to the
contrary
constitutional
being.
adop-
While
and a social
individual
is “pre
that
use of race —which
ment
adoption
attitudes toward the
parents’
tive
affirmatively
be
invalid” —must
sumptively
influence on
child are not the
and their
272,
justified.
442
at
99
Feeney, supra
U.S.
child,
af-
parental attitudes do
these
266;
2292;
cf.
supra
see
at
Compos,
S.Ct. at
extent,
fect,
a
whether
significant
Kramer,
359,
In
297
Marriage
re
of
N.W.2d
will
secure and confident
child
feel
(in
“no
(Iowa 1980)
custody proceeding
361
may
Because race
community.17
warranted
assumptions
automatically
are
atti-
parental
be
relevant
to these
highly
can
a factor
identity”;
racial
race
be
tudes,
expert
17
see note
—as
relev
only if there is some “demonstrated
parties
of both
confirmed —it
witnesses
ancy”).14
to the
issue of
child’s
larger
relevant
DeF, supra at 739.
interest. See In re
best
becomes: whether
thus
among
statutory authority to consider
conclude,
signifi-
in a
accordingly,
I
the factors relevant
without
prospects
where
cant number
instances
preference
any party,
for the race of
can
evaluated,
adoption are
those who
“necessary”
ever be
for a determination of
a recommendation
deci-
responsible for
Appellants say
child’s best interest.
it
Department
sion—social workers
be,
protec-
cannot
alleging
“equal
Resources,
expert
witnesses
Human
prohibits
tion
trial,
doctrine
Constitution
be
and the trial court itself —will not
the use of skin
as a rele-
adoptive
color-defined race
on an
adequately
able to focus
adoption.”
vant issue in
thus on the
agree
identity,
cannot
child’s sense of
interest,
considering
with that
best
without
unqualified statement.
child’s
555,
(1977);
emphasize
again
B. Judicial
of the Race Fac-
him:
tor
love
question
We do
the mother’s
for her
But we have
always
The fact
statute does
children.
stated,
cases,
not per
primary
se reflect an unconstitutional denial
in divorce
that our
See,
1,
369,
1627,
Virginia,
(1967)
e.g., Loving
18.
v.
concern is the welfare of the
agency,
ceptive
Georgia
to the idea. One
duty
brought
We owe that
to
children
all
court,
race,
responded in 1954 to a Child
example,
regardless
into a divorce
citing
color,
League
study by
Welfare
of America
girls,
creed. These unfortunate
anti-miscegenation
statute:
own,
state’s
through
fault of
are the
no
their
marriage. A
prohibit
“Our laws
interracial
a broken
marriage
victims of a mixed
in a
child reared
home
will
much
They
home.
have a
better
apt
will
and want
different
meet
rightful place
to take
opportunity
their
person
parents’
his or
marry
her
society
they
brought up among
if
agen-
not his own.”27 Other
Ward,
background,
people.
their own
[Ward
deferred
cies
concerned about —and
were
143, 144-145,
Wash.2d
216 P.2d
community
against prejudice
(1950).]23
to—
adoption.28
views,
Abhorring
many professionals
such
began
discourage
the mid-1950’s
An intent
interra
validity of
cial
sustainable rationale
marriage
statutes24 and court decisions25
not a
statute. barring
many
implementing
cross-racial
place Loving, supra.
willing to
adoption agencies
became
Nor is even well-inten
protect
against
black children in white homes.26 Southern
effort
a child
corn-
tioned
*13
Calling
“unfortunate,”
beyond
adoption
language
a
the 1950’s—has
23.
this
—well
Washington
expressed
appeals
history
segrega-
part
state court of
of a much broader
of
been
Supreme
mandating
belief
of
country,
separation
its
that
Court Wash-
of
in this
tion
ington
again
if the
family.
would overrule Ward
issue
generally
See
D.
the races within the
Tucker,
came
v.
14
before the court. Tucker
(2d ed.
Bell, Race, Racism American Law 53-81
&
454, 455,
789,
Wash.App.
(1975).
542
791
P.2d
Grossman,
303; Note,
1980);
supra
25
note
at
Custody Disputes Following the
of
Dissolution
See,
(1950);
e.g.,
24.
9:422
§
La.Rev.Stat.
Tex.
Marriages:
the
97,
Best Interests of
Interracial
(Vernon 1969) (re-
art. 46a
8 §
Rev.Civ.Stat.Ann.
19 J.
L.
Child or Judicial Racism?
Fam.
pealed 1973). Both statutes were declared un-
(1980-81). Most states have barred
97-104
McKeithin,
Compos
See
constitutional.
F.Supp.
341
marriage
point
his-
some
in their
interracial
tory,
at
Gomez,
(E.D.La.1972);
264
In re
424
Miscegenation
Applebaum,
see
Statutes:
(Tex.Civ.App.1967).
S.W.2d 656
Problem,
A
and Social
53 Geo.
Constitutional
reported
49,
(1964) (identifying
25. Most
court
in this area
decisions
41
L.J.
50-51 & nn. 5-15
custody,
concern
not
use
miscegnation
which at one time had
states
Annot.,
generally
decisions.
57
See
A.L.R.2d
-laws;
article
19 still had them at
time the
custody
678
Even the number of
cases
When,
years ago,
published).
fifteen
sparse.
suggest
Several commentators have
miscegenation
Supreme
stat-
Court declared
that,
judicial
ed
in the absence of statute
Loving, supra, 16
unconstitutional
utes
decisions,
the common law tradition was
marriage.
prohibited
Id.
states still
against mixing
family.
races in
See
Gross
5,
87
at 1820 & n. 5.
6 & n.
S.Ct.
man, A
Race as a
Child Different Color:
Custody
Adoption
Proceedings,
Factor in
28.Grossman,
324,
supra
reported
25 at
note
303,
Note,
(1968);
17 Buffalo L.Rev.
309-10
following
comments:
228,
[Adoption
],
in Iowa 40
234-35
L.Rev.
Iowa
adoption presents
than or-
“more
Interracial
Note,
Matching
(1955);
& n.
Racial
difficulties,
long
dinary
so
there
risks
Adoption
for the Hard
Dilemma: Alternatives
prejudice.”
so much
remains
Acceptance
Place,
(1978-79).
333,
n. 43
341
may
17 J.Fam.L.
community
“highly
im-
why
reported
Another
be few
reason
there
portant.”
minority
1954 is
children
decisions before
adoptive couple must consider “ramifica-
The
tions,
placed through
not
been
formal
have
relatives, church,
friends,
neighbors,
generally
systems. See
su
J.
Ladner,
children, community.”
pra
own
note 16.
strongly opposed
“tradi-
because of
are We
Grossman,
generally
supra
25 at
note
26.
place-
tion, community
accept
such
unable
318-25;
& D.
L. Grow
Shapiro,
Black Children—
repercussions.”
generally, fear of
ments
Study
Adoption
A
of Transracial
White Parents:
placement
a white
child in
of a colored
(1975);
16 at
note
56-71.
J.
Ladner,
complications,
many
“es-
home would lead to
pecially” when he reaches adolescence.
Grossman, supra
empha-
note 25 at 323.
27.
opposition
response
to cross-
size
because
review,
equal
munity prejudice
proper justification,
protection purposes,
a sin-
itself,
exercise of trial court
gle
discretion?
decision.29 This is
suggest
not to
that such concerns motivated
apply
we
When
the abuse-of-
rather,
point,
the trial court here. The
is to
discretion standard
review without
re
very
illustrate that
there is a
real risk of
concerns,
gard to constitutional
we check to
discriminatory application
misuse —of
a—of
be sure that the trial court has exercised its
racial classification in an adoption proceed-
range
permissible
discretion within the
would be
ing.
simply
ignore
We
naive
alternatives, based on all relevant
factors
possibility
commonly
based on the
improper
and no
factor.
See Johnson v.
hope
shared
times
changed.
States,
have
D.C.App.,
United
398 A.2d
Thus,
(1979).30
where race is a factor
for the trial
We then evaluate whether
“substantial”
consider,
supported by
decision
rea
appellate
court
of judi-
review
id.,31
soning,
“drawn from a firm factual
cial discretion under the statute must be as
foundation” in the record.
Id. at 364.32 We
exacting
scrutiny
as our
of the statute it-
noted, however,
the exigencies
have
self.
do not
much
permit
trial sometimes
elabo
support
discretionary ruling.
ration in
Judicial Review of Trial
Discre-
Court
Thus, depending on “the
Id. at 365.
nature
tion
being
made and the
determination
other
reported
concerning
Unlike
cases
rendered,”
context within which it was
racially
statutes administered in
discrimina-
court,
appellate
necessary,
if
examine
“may
see note 22
tory ways,
supra, we do
deal
reasoning upon
the record and infer
here with a demonstrable pattern
prac-
the trial court made its determina
How, then,
tice.
the appellate
does
tion.”
Id. at 366.33
30. The
29. See In re
32. “An informed
31. “[T]he
abuse if the stated reasons
can
abuse of
requires
A.2d
Kreischer,
vant factors
of
foundation.
587
n.
er the trial court’s action was within the
App.
Milligan
supports the trial court’s action.” Id.
the
Beazley v.
based
ex rel.
er the trial court’s
abuse of discretion
factor,
at
factor,
ably
....
2,
permissible
365
decision maker failed to consider a relevant
be discerned for
361-62
(1976);
support the conclusion.’
208
The court
upon
(citation omitted).
appellate
Myers
and whether the reasons
whether he
discretion if no valid reason is
that the trial court’s determination
v.
(1976) (per curiam);
appellate
302 n. 3
Davis,
450 Pa.
293 N.W.2d
(Iowa 1980);
Davison,
Just
pertaining
and drawn from a firm factual
Marriage
Commonwealth
v.
alternatives” based on “all rele-
court “must determine wheth-
Myers,
choice
reviewing
as
reasoning is substantial and
court should
352,
*14
Nev.
relied
must
244
it,
trial court’s action is an
to the
among
468 Pa.
Second, the dis court no expressly court the made above) as questions of listed ing it the kinds claimed that could draw “conclusive race; be to affect this likely “the how would as to it referred to absolutes” up, respec child case,” growing “ap particular in this while black total circumstances and families of J.H. and J.H. tively, in the all of the factors to be considered” plying Furthermore, aside R.M.G. (each discussed) the “and of E.M.G. and of which court makeup racial reciting facts about the question past, in terms of evaluating not sum, the court did articulate family, future.”41 In the court of each present, and analysis required by steps comparative concentra specifically dogmatic eschewed in compare how the race, rele two and three: families openly tion on discussed all the respective accommodate child, of fami their abilities to (age stability vant factors race, resources, significant racial differences ly, financial and other love how factors affection, not families are when all relationship, race), blood did between the ques- court, analysis correctly noted that the critical I in its understand above, adopted quoted prosper full in the found D. if in text to have whether could tion not equally loving pre- toward parents question families stable her foster —a grand- the child. The court further found the improperly, sumptively, fa- would have parents preferable respect rela- with to blood family appellants instead: What vored —but prefer- tionship; the white foster were presents the better under all circumstances also able financial resources. The court alternative, problems identity given affected predictable change in found “it is that another by race? H_to life the G— of this child [from family] degree injury or will cause some 42.Also, har- has accused the court of no one harm As taken to- to her.” to these factors boring discriminatory we intent. Because therefore, gether, apparently was claim G.s’ inherently suspect classifi- with deal to, than, equal less or at best somewhat cation, however, question in- of trial court as the The court turned to race H.s’. thus issue, directly be if a as would tent is not apparently factor. determinative facially involved. statute were neutral colleagues agree dissenting I do not with our Thus, although supra. direct evidence note all rele- trial court found ... “[t]he discriminatory intent would relevant race, equi- factors, other vant than were judicial application of the statute show that poise.” Post at 796 n. 1. scrutiny, strict absence not could survive not conclude 41. When the court said it did help establish that does not such evidence itself,” not sustain “could precisely tailored of race was trial court’s use is, not a is there added that “the respect, In this the child’s best interest. alternative?”, question did better rhetorical Drummond, analysis disagree a view that racial differences reflect at 1205. nega- automatically presumptively be— tive —a context, Rather, every factor case. *17 relevant to the adoption are to- vant adoption, considered does not deny equal pro- gether.43 tection of the However, laws. court, in granting the petition of R.M.G. Because the race factor is determi D., E.M.G. to adopt did not articulate here, native see supra, note 40 I conclude its analysis of the race factor in sufficient the trial court’s analysis pro did not detail to assure a reviewing court that the vide the reasoning and detail necessary to application factor, of that conjunction assure a reviewing court that the evalua with the other considerations, relevant tion of race was precisely tailored to the precisely tailored to the best interest of the best interest of the To repeat, child. Nor, course, child. appellate effective review when race is a critical fac in a position to any dictate result here. tor, this court needs to understand exactly Accordingly, we must reverse the judgment how the trial judgment court made the of the trial court and remand the case for to race that it did: whether as a precisely further proceedings consistent with this analyzed determination, based on carefully opinion. thought through comparisons of the parties So ordered. evidence, drawn from record or as a more generalized conclusion that race always fa petitioners
vors (here the same ap race MACK, Judge, Associate concurring: pellees) judgment reflecting an imper —a joining In disposition ordered missible intellectual shortcut. Judge Ferren, I find it necessary say in my is, not, own words what and is this,
In a issue ease such as where there here. is every indication from the trial court’s that, analysis but race, for considerations of outset, At the I see no need to reach the might different, decision have been any constitutional equal protection. issue of Cf. determination as to race that is not precise DeF, In re D.C.App., A.2d 737 ly comparative articulated on a basis will The Adoption mentions race and Statute fail to survive scrutiny. strict Given the religion only as factors to be supplied along trial court’s opinion, which could be read to with other petition information in a say that appellants J.H. —the —were adoption. D.C.Code 16-205. It § race, slightly favored but for see note 40 require give does not the court these supra, an articulation of how close the race whatever;1 any factors consideration necessary is will be to assure this court, only provides that the after the con- court that the is constitutionally jus result sideration of the and other evi- petition Otherwise, tifiable. the risk that race will dence, when it may enter a decree is satis- be misused is too high, even when there is fied that is suitable for adoptee no reason to believe the trial court is inten petitioner that the is fit and able
tionally discriminatory. education, provide proper home and and that will be for the best
V. CONCLUSION We adoptee. interest of the Id. 16-309. § statute, summary, explicit statutory with its are thus not faced with a scheme recognition of rele- among separating persons solely the factors on the basis rely analy- exclusively have noted earlier that under the circum- the trial court’s own case, especially stances of this because of sis. nature, its constitutional there is no basis for us reasoning to “examine the record and infer the DeF, supra, cited for the 1. While In re has been Johnson, the trial court used.” at 366. proposition race is a relevant factor stronger by pointing This conclusion made adoption proceedings, it has not been held rele- expert out that none of the witnesses made the purposes. vant for This court constitutional comparative analysis required kind of here. issue in that declined to meet the constitutional Thus, analysis there is no of record which we case. say adopted. could the trial court We must
795
very
of
issue confirms
(see Loving Virginia,
racial
v.
statement
the
classifications
1817,
1010
388
87
18
in
S.Ct.
L.Ed.2d
fact.
all other factors are
U.S.
this
“[W]hen
(1967)),
program
or an affirmative action
of
competing
between
sets
equipoise” [as
of
preference on
basis
allegedly giving
the
a consideration that
prospective parents],
the
(see Regents
of
classifications
race per
the
on the basis of
se
tips
scales
Bakke, 438
University of California v.
U.S.
“potential
that
future hard-
(with reasoning
(1978)).
98
racial differences between interest would ing on how the child’s best adversely and child affect2 the latter’s the alternative by I think it be affected either of development future and welfare. does not re- is clear that effects of including potential Constitution placements, quire ignore a court to racial differences differences, mitigat- any and factors child, between prospective parent thorough hearing, After a ing those risks. must be the extent that such differences judge such fac- the trial court was able judge in that best inter- observed order to financial re- respective tors as the families’ est. child, sources, relationships with the blood custody away the effect of a shift However, managed has temporary custody, family with family tak- judgment by overturn the trial court’s love and care that stability, and the sort of view of ing overly what I think is an stilted provide.3 disregard- family expected each could be the relevance of race to race, factors, equi- difficulty were in be- other than of the difference relevant overcome lambs) majority’s reading poise. tween lions and observed: Even if the correct, reach the same record were I would my Virginia good But what friends of do will results, analytical Bible, I here. do says with that He created for God Again, all men of one flesh and blood? we having adoptions might insist on one race —the lion clothed Advantages that interracial vicious, strength, great with and with de- adoptions conceivably over intraracial have propensities, while the other interest, structive by promoting if raised the child’s best weak, natured, inoffensive, good and use- However, parties, would also be relevant. heterogene- ful —what will he do with all the adoptions it is not contended animals, way ranging ous intermediate all are, superior things equal, to intraracial other lamb, pure pure on from the lion to the found ones. See infra at 798. plantations every Southern State Union? Negro Cara- Davis, Lee: The [Brown, by trial court as 3. Race was considered van (1941).] merely factors and relevant one of numerous conclusive factor. not as a determinative or majority has that the trial court’s 1.The stated race, factors, intimation in the trial There is not the least other than examination of all family family judge’s opinion fit “slightly otherwise favored” the white foster granted “tipped as can never be the decision different race the race factor race, regardless against adoption by grandparents.” of the same favor of D.’s black Thus, is not disagree decision its fitness. the court’s Ante at 793 & n. 40. I with found, prohibiting state action with cases trial court inconsistent characterization. controlling automatically gives di- portions quoted opinion its shown these 781-782, custody majority, decisions. that all mension ante son, coloring history my for a black books good position unusually was in an The court children, by Ebony out Jr. put family, H. book respect to the judge he’s not white. time sure he knows that for some make custody had they already had us, Moreover, long he lives with they have I don’t care how basis. temporary black, beautiful, he’s child, who, par- he’s unlike he’s adopted another thus had before ents, is black. The court ours. by the steps taken
evidence of affirmative evidence, the court weighed all this Having potential mitigate some of the parents to other as a fact that considerations found *20 adoption. in an interracial arising problems the in race between than the difference efforts Q. particular made you Have were parents adoptive and one set of child main- heritage, his black to cultivate equipoise.4 in house- your of that in presence tain the then turned to a consideration The court hold? differences effects of racial possible of the an affirma- definitely began We A. child, and concluded parents between to live with Jeff came program tive when in the of adverse effects possibility that the us. the in favor of family tipped H. the balance you? with Q. long How has Jeff been on conclusion was based family. This G. us when he the testimony, came to live with which expert A. Jeff considerable old, with us so he has been evi- eight days part. was recites in It is majority opinion August. in six He’ll be six nor the court years. parties almost neither the dent that Indeed, when lightly. this issue approached military, in say, being the Needless testimony indicated that her a social worker socie- thoroughly integrated in a we live of Dr. Wels- based on the views largely than accepting you and much more ty, re- the court agency psychiatrist, the ing, find in most civilian communities. would testify person. in Welsing that Dr. quested guidance of friends and associ- Through opinion on expert facts and weighing After husband, at the my chaplain ates of that conclu- sides, the court observed both of our chapel go where we to church —one efficacy of interracial data on the mag- in sive chaplains gotten is black —I have lacking.5 adoption is azines, pre-school I have black some 99, ty Minor, favored the Adoption U.S.App.D.C. considers that the balance thus In re of a 97 McKeithin, (1955); Compos 341 228 446 v. without consideration F.2d white foster Gomez, (E.D.La.1972); interpretation F.Supp. family’s testimony. 424 264 In re This 1967). (Tex.Civ.App. While some S.W.2d 656 But even if one assumes best debatable. at be a rele courts have held that race can never consideration exists before that such a balance proceeding, custody in vant factor efforts, then mitigating those efforts are Davis, 81, 83, azley P.2d 92 Nev. 545 along impact separately, with the Be considered DeLander, 206, (1976); 37 208 DeLander v. child, parents and between the racial difference 14, 1968), (Cal.Super.Ct., Aug. U.S.L.W. 2139 Since proper be the same. result would view, by adopted the better and the view totally parents cannot efforts of even the best case, in this is that race be con court problems, potential for future eliminate the proceedings. a relevant in such sidered factor tip See infra still the balance. factor could County Dept. of Fam See Drummond v. Fulton 799. at 1200, Services, ily 563 F.2d and Children’s denied, (5th Cir.1977) (en banc), cert. 1205-06 especially empirical acute data is lack of 5. The 910, 3103, 1141 L.Ed.2d 437 U.S. 98 S.Ct. 57 years, regards adolescent the crucial as Farmer, (1978). Misc.2d Farmer v. 109 parents typically between the relations strain (Sup.Ct.1981). 439 N.Y.S.2d 590 important forma- in the and are and children date, self-concept. healthy all of To tion noted, agree majority does not As I have 4. pre-adoles- major focused on have the cents, studies except the race factor that all considerations most those researchers and thus even Ante 793 n. balance. substantial were adoption concede sympathetic to interracial Evidently the evidence it assumes that regarding the ultimate jury identity is still out that the healthy regarding a racial and cultural viability placements. J. by of such ignored Ladner, Mixed interracial context was following com- 249 considering and care that the love court Families age of the typical: of the family. majori- “In view provided ment be each would adoptions is a sci- among superior While there debate social that such tend to be adoptions, about interracial viability entists intraracial all other factors Rather, parties no adoption,6 including equal. concerns dispute one— herein which the expert degree and their witnesses —contends fact of a racial differ- study, give major shortcoming possible adoptions. children in the This is a is not case, answer to the whether white definitive parents where the court context instant problem parents successfully prospective can deal that either found set of identity.” Adoption Shapiro, provide good of racial As Grow & would home for the child. Parents, observed, of Black Children White issue in such a case Child (1975) cited as [hereinafter whether Welfare Shapiro, Adoption ]; Grow & see also L. Grow but is not a better “successful” whether there & D. Parents 233- alternative. Shapiro, Black Children White (1974) cited as Shapiro [hereinafter successfully & Finally, none of the studies has Grow Family Experiences Jackson, B. Inter-Racial I]; controlled for non-racial variables. It has often (1976); R. Simon & H. Adoption Altstein, adopting been observed that cially interra- Adoption (1977) [hereinafter Transracial higher to rate tend than others factors H. cited R. Simon & Simon & Altstein I]; resources, age experience as financial such Follow-Up Adoption: Altstein, Transracial A conviction, religious parenting, and educa (1981) cited as Simon & [hereinafter *21 Altstein II]; I, supra; D. Robert tion. See Simon Altstein & Jones, Adoption On Transracial of Black Chil son, in Interra Parental Socialization Patterns dren, (1972). 51 156 Welfare Child Adoption, (1974), in cial abstracted 35A Disser However, age subjects the of is not the the Denis, (1975); St. 5553 G. Int’l tation Abstracts only the in limitation on value of the studies Minnesota; Adoptions Self-con Interracial in resolving the issue at Most are based hand. cept Rearing and Child Attitudes of Caucasian exclusively par- largely the or on interviews of Children, Negro Adopted Who Have Parents question- ents rather than direct or observation (1969) abstracted in 30A Dissertation Abstracts I, ing of the children. & Shapiro See Grow problems special ra of Int’l 2633 The supra; L. & D. Shapiro, Transracial Grow identity may coping and thus be cial skills (1975) cited as Today Adoption [hereinafter or to the effect of underestimated obscured due supra; Shapiro Jackson, & B. Simon & Grow II]; a favorable overall other factors result in II, supra; C. Zastrow, Altstein Outcome findings misleading are assessment. Such Black Children-White Parents Transracial here, where, applied to a as the when situation (1977); Adoption, Shapiro, Grow & Adoptions superior, alternative not but interracial is found consequence, supra. tend to As a the data equal, as to nonrace factors. parents’ experience the rather than reflect child’s, whereas it is the best interest latter’s 5; supra note 6. See Grow Shapiro Grow & & I, govern placement must decision. II, 5; supra supra note note Shapiro Jackson, B. spectre of ob- These studies also raise the 115-26; S. E. at Klibanoff & Klibanoff, Let’s to bias. Most have chosen server who (1973); J. Ladner, 115-26 Adoption Talk About undoubtedly adopt a child of another I, 5; 5; supra supra note note Simon & Altstein prior belief in not have done absent a would so II, 5; supra A. A. note Sorosky, Altstein Simon & Moreover, viability adoption. of interracial Triangle 202- & R. Adoption Pannor, Baran, efficacy responses reflect own as their on their 5; Chestang, (1978); supra note 04 C. Zastrow, reasons, responses parents. are For these their Adoption, 17 The Dilemma of Biracial Soc. rosy picture likely paint overly to Chimezie, (1972); Transracial 100 Work, experience and the the child. See effects on Children, Adoption 20 Soc. Work 296 of Black Chimezie, Shapiro Bold But & Irrelevant: Grow Irrelevant, Chimezie, (1975); but Bold Adoption, Transracial 56 Welfare Child 5; Adoption, supra note note 5; Chimezie, & Shapiro, Grow (1977) Bold cited as [hereinafter and Not So Shapiro, Not So Bold Irrelevant], Grow & But Irrelevant, (1975) [herein- Welfare Child in studies The measures of “success” some Bold]; Shapiro, Not So cited as Grow after & light specific too broad to shed on the are much Else, 5; Jones, supra Racial and note Jones & development aspects of child and socialization Adoption, Issues Cultural likely adversely Welfare in an Child to be affected that are Simon, (1979); of Racial An Assessment 373 Awareness, adoption, learning “sur- such as interracial Self-identity Preference, coping See Grow vival skills” for with racism. Among Adopted Chil- Non-White supra; White supra; Shapiro Shapiro II, & I, Grow & 43-57; dren, at W. supra; Soc. Oct. supra; Problems, Jackson, II, B. & Altstein Simon Identity Allen, of Racial Adoption, The Formation supra; C. Zastrow, Shapiro, Grow & By Moreover, Adopted White Parents supra. category Black Children (1976), of “successful” range abstracted 37B placements covers broad from the Abstracts Dissertation 5; Robertson, supra (1976); note exceptional. D. Int’l to the borderline mediocre to the Denis, supra St. note 5. Thus there is little of the relative G. Id. indication interracial, compared to intraracial success of ence presents risks which are not otherwise ents. But when all other factors are in present, possibility and the to those equipoise, extent which risks of an adverse ef- fect, steps reduced on the matter how small how unlikely, be affirmative no or permit would suffice to part parents.7 judge As to two researchers tip balance in the direction of in- sympathetic have said, traracial alternative. accepted
it
that the inra-
still is
found as
The trial court
facts
“[a]t
feasible,
preferable
adoption,
cial
when
later
stage, notwithstanding love
affec-
adoption.
the transracial
basic
tion,
questions
identity arising
severe
adoption was
about transracial
probably
and race most
all,
at
whether
worked
what
large,
would evolve.
In the world at
as the
Bold,
Shapiro,
extent.
&
Not So
widens,
[Grow
circle of contacts and routines
there
supra note
adjustments
88.]
countless
which must be
It concluded that the child’s
made.”
inter-
outspoken
Even the most
of in-
advocates
ests
served
probably
better
see
terracial
who
it as a means of
equal
G.
family. Given
balance
other
addressing
place-
fact that
need
factors,
is adequately sup-
conclusion
minority
ment of
has his-
homeless
children
ported
permissible
if it is
to conclude that
torically outstripped
number minori-
any potential
there is
adverse effect from
ty adoptive parents, do
contend
the interracial
alternative. That
indis-
there
problems
is no risk of
social
putably
Accordingly,
the case here.
Rather,
psychological adjustment.
they
upset
if it is
result below can be
consti-
contend that the hazards can
be reduced
impermissible
any
tutionally
give
weight
level,
a manageable
and that racial differ-
*22
to
on the
whatsoever
adverse effects
child
ences should therefore not
as an
stand
abso-
to racial differences between herself
related
However,
lute
to adoption.8
barrier
most
and
parents.
her
agree
adoption
authorities
intraracial
preferable.9
II. THE CONSTITUTIONALITY OF
hazards of
adoption
interracial
THE TRIAL COURT’S DECISION
be exaggerated,
should not
but neither
they
inevitably
should
be ignored. An
im-
Scrutiny
A. The Level of
precise prediction about the effects of an
placement
Supreme
interracial
must be made in the
A majority of the United States.
circumstances,
all
standard of
agreed
context of
relevant
in- Court has
“benign”
op-
to be
as
cluding any mitigating
par-
scrutiny
applied
efforts
Bold,
5;
among profes-
supra
Shapiro,
a
&
Not So
7. There is
broad consensus
note
Grow
adoptions pose prob-
position
supra
intraracial
sionals that
interracial
note 6. The
present
preferable when other factors are
lems not
in the intraracial
In
context.
survey
accepted
among organi
equal
generally
one
social workers involved
child
even
placement,
percent
among
primary
functions it is to
found that
interracial
whose
zations
II,
adoptions
promote
as an alternative
Shapiro
are riskier. Grow
&
supra
Sixty-nine
place
percent disagreed
50.
children. See Simon &
note
at
hard
Alt
II,
up
supra
“Growing
at
note
70-74.
with the statement
in our
stein
current-day society is as difficult for a black
contrast,
adopted by
point of
view
in a black
as in a
home.”
Id
child
home
white
opinion
adoptions
intraracial
—that
preferable
51.
generally
regarded
should not
identity
respect
formation
sociali-
I,
5;
supra
note
Shapiro
8. See Grow
&
&
Grow
rarity
comparative
a
zation of
child —is
5;
II,
supra
supra note
B.
note
Shapiro
Jackson,
among
commentators.
social researchers
5;
supra note
S. Klibanoff & E.
J.
Klibanoff,
6;
Else, supra
Jones &
note 5.
I,
5;
supra
supra
note
Simon Altstein
Ladner,
&
Ladner,
5;
at 124—25. See also
II,
supra
note
5;
note
J.
note
Ches
&
Simon Altstein
supra.
note 6
6;
cited at
Shapiro, Adoption,
the other authorities
tang, supra
note
&
Grow
posed to “invidious” racial
respect
classifications.10
to the distribution of burdens and
However,
justices
at least four
are of the
among
benefits
racial groups.
Indeed, the
attempt
that racial classifications that
view
use made of race in this case should be even
to remedy
past
the effects of
discrimination
open
objection
less
than that
in Bakke
stigmatize
particular
do not
racial
There,
and Fullilove.
the racial classifica-
subject
group
exacting scrutiny
are
to less
tion provided benefits to an identifiable
Thus,
than other racial classifications.
class, to
class,
the detriment of another
subjected
of the
plurality
Supreme Court
the purpose of
remedying
present ef-
program designed
medical school
to assure
Here,
fects
past
discrimination.
the con-
the admission of a specified number of mi-
sideration of race seeks not to improve the
students,
nority
to an intermediate level of
position
any particular
racial group, but
scrutiny,
scrutiny
instead of the strict
test.
simply
protect
the best interests of the
Regents of the University of California v.
child, of whatever race.
Bakke,
265, 359-61,
438 U.S.
98 S.Ct.
However, the majority quickly dismisses
2783-2784,
(1978) (Brennan,
L.Ed.2d
the possibility that the consideration of ra-
J., White, J., Marshall, J.,
J.,
Blackmun,
cial differences made in this case could
concurring
judgment
part
qualify
scrutiny
for intermediate
as a be-
dissenting
part).
See also Fullilove v. nign use
ground
of race.
It does so on the
Klutznick,
448, 517-19,
U.S.
S.Ct.
that,
context,
in the adoption
“racial classi-
2758, 2794-2795, 65
(1980)
L.Ed.2d 902
the years
fications over
have resulted in
J.,
(Marshall,
Brennan,
with whom
J. and
particularly
examples
vivid
of invidious dis-
J.,
Blackmun,
join, concurring
judg-
crimination.”
But this
Ante at 786.
dis-
ment).
these
While
cases involved affirma-
tinction is clearly
posi-
inconsistent with the
action,
tive
opinions
authors of the cited
tion
Supreme
plurality
taken
Court
neither
implied
stated nor
affirm-
favoring
scrutiny. They pro-
intermediate
ative action could qualify
benign
as a
use of
posed intermediate
in a
in-
scrutiny
case
a racial classification.
volving alleged race discrimination in ad-
Employing the same
use of
analysis, the
public
higher
mission to a
institution of
race in this case
require application
does not
education. No one who recalls the last
scrutiny
the strict
standard. As in twenty-five years
history
of this
Fullilove,
Bakke and
indicia of
normal
country
possibly believe that
could
universi-
First,
benignancy
present.
ty
is not an area “where racial
admissions
*23
use
stigmatize
of the racial factor does not
years
classifications over the
have resulted
particular
words,
racial
In
group.
other
particularly
examples
in
vivid
of invidious
the use
adoption proceeding
of race in this
discrimination.” The fact
invidious
was not
presumption
based
that one
occurred,
uses of race
and continue to
have
another,
place
race is inferior to
nor does it
arise,
persuasive
reject-
is not a
reason for
weight
bigot-
of the
behind racial
ing
in
scrutiny
clearly
intermediate
be-
ry
separatism.
judge
The trial
used nign
possibility
case.
If the
of invidious
many
weighed
race as one of
factors to be
all
discrimination in the same context
is
interests,
calculating
the child’s
not
best
necessary
that is
to bar intermediate scruti-
as
insuring
purity
a means of
or
of the fact that
the actual
ny-regardless
separation.
clearly benign—
of race was
consideration
That
scrutiny
possible.
then such
is never
Secondly,
though the consideration of
remedial,
place
too extreme an im-
purposefully
approach
race was not
neither
pernicious
benign
important
were its
and effect
uses of
purpose
pediment to
majority
prefers
scrutiny
10. The
of this court
to state
intermediate
in that context. Until
issue,
[Supreme]
one can-
of the
has
Court as a whole addresses the
Court
“[a]
scrutiny
accepted
presume
simply
this intermediate standard for be-
not
that intermediate
Indeed,
rejected (or adopted).
nign
more
which one
will be
racial classifications
to
opposed.
rejected
than
Justices are on record in favor
must add that neither has the Court
color
position
standing
consciousness. Unless and until the
difficult
of
in her
achieved,
promised
equality
judging
land of racial
shoes and
what is in her interest.
it is
capacity
unrealistic to blind ourselves to color in
If the child had
to decide for her-
self,
prevented
such
she would
not be
certainly
instances.
taking
note of the different
race of
Moreover, the consideration of race in
proposing
adopt
those
her. When the
prejudiced
this case differs from
behalf,
court does the same on her
there is
separationist approaches taken in cases re-
no indication
invidiousness that necessi-
majority’s
per-
ferred to
“historical
level
scrutiny.
tates
strictest
spective” in at least two
re-
fundamental
spects.
only
among
Since
one factor
This situation should also be distin-
many, many
adoptions
guished
will be
from one in which a standard that
permitted.
ostensibly improper
This is not a classification en- makes no
use of race is
races,
tailing
separation
which would
in a
being
way by
subverted
race-conscious
be “invalid without more.”
Yick
Regents
apply
Hopkins,
those who
it.
Wo v.
Bakke,
v.
University
supra,
California
S.Ct.
Here,
contrast,
purpose
pre-
and
case,
is
scrutiny
not determinative in this
dominant effect of the court’s action is le-
since the consideration of
necessary
race is
gitimate
compelling: protection
of the
to the
compelling govern-
achievement of a
significant
child’s best interests.
It is also
mental
comports
interest and thus
with
that only
proposed
one side of the
equal protection
interra-
even under the strict scru-
cial
consenting parties:
See,
Griffiths,
consists of
tiny standard.
e.g., In re
the H. family. The child is not of
717, 721-22,
2851, 2854-2855,
consent- U.S.
93 S.Ct.
ing age, and therefore it is the court which 37
(1973);
L.Ed.2d 910
v. Richard-
Graham
son,
365, 375,
1848, 1853,
do
they
where
not have to deal with that
U.S.
S.Ct.
(1971); McLaughlin
twenty-four
day.
A degree permis- of race-consciousness other child be- interest, nei- accepted by sible to the achievement of that tween two cultures and white parents Even if the foster potential hardships because certain future ther.13 ability to the when the are of a were to nurture the child’s parents child arise able black, finding they herself as there is little perceive different race. trial court’s amply prevent feelings that such risks exist is than could do to the ambivalent more turn, later in rejection may experience trial she supported by testimony. conclusion, testimony and the addressed to life.
it, virtually support find unanimous in the strong identity, sense of In addition to literature on the research and social science develop learn to cer the black child must subject. of how she Regardless tain survival skills. by family, of interracial is identified herself or her she
Some
risks
person
socie
development
identity
by
involve the child’s
will be identified as a black
identity),
experience
and cultural
self-
will
racism.
(including
ty
inevitably
esteem,
develop
minorities
surviv
belonging
and a sense of
Blacks and other
racism,
coping
considerations which the
al skills for
with such
family —relevant
expressly, or
recognizes
legitimate
pass
and im-
can
to their children
they
example.
possibility
importantly,
that more
unconscious
portant.
problem
One
6, at 101-03.
E.g., Chestang, supra
herself as black
note
may
perceive
child
attempt
develop
person.11
an
as a black
Parents of interracial families
identity
them,
There
evidence at trial that the foster
to learn these lessons and then teach
recognize that
this is
would make efforts to alleviate this
but most authorities
parents
learning directly
Even if the child made av/are
an inferior substitute for
possibility.
however,
prob-
other
J.
su
identity,
minority
Ladner,
of her black
role models.
255;
6,
might develop.
Chestang, supra
lems
The child would then
note
pra note
at
with the fact that she is differ-
claim
cope
have to
Few white
even
102-04.
expert
As one of the
parents.
supra
ent from her
can teach such skills. J.
they
Ladner,
witnesses in this case testified:
a third of
study,
In one
note
at 115.
af
out,
parents did not undertake
“I’m
If a child has to start
different.
The two
to teach them.
firmative efforts
being deprived
I’m
that child is
special,”
did,
predominately
did so
thirds who
strong
healthy concept
self
books,
materials
like
through secondary
in an environment
they
could have
certainly
ing caught
“I
development
two cultures:
importance
has
between
of such
11. The
people,
Joyce
accepted by
by sociologist
emphasized
white
Ladner:
couldn’t have been
been
easily
healthy integrated personality
world
involves
into a black
“A
and I couldn’t fit
best,
having
concept
because,
my
though
trying
a stable
of self as
one’s
I was
even
identity.”
group (black)
supra
things
individual as well as a
out.” Ladner,
still didn’t work
supra
Else,
J.
note
at 104.
See also Jones &
note
at 158.
Ladner,
case,
present
In the
note
at 378.
supra note
at 19.
12. B. Jackson,
testimony
impor-
expert
court heard
larger
acceptance
tance to the child of
community.
*25
27-year-old black woman who was
13. One
five,
adopted by a white woman when she was
that comes from be-
describes the ambivalence
209-15;
supra
note
at
16-17;
Ladner,
5,
J.
rather
than
which is the nor
by example,
supra note
at 39-43. When
Zastrow,
5,
C.
mal method of socialization.
& Alt
Simon
II,
see a child whose race is differ-
5,
people
also J.
some
supra
at 18. See
stein
note
parents, they
tht of his
assume he
ent from
at 115-16.
Ladner,
supra
note
product
child or the
of a
illegitimate
is an
experienced by
The racism
blacks in this
marriage
they
multi-racial
—circumstances
society may be encountered even more of-
disapprove
people
of. Other
overreact
may
ten
in interracial families. Those
by blacks
well-meaning way, commenting
in a
on how
undoubtedly op-
attitudes are
with racist
adopt minority
it is to
a
child.
wonderful
bigot-
to interracial families. Acts of
posed
well-intentioned,
however
such reac-
But
of a different
ry may
upon
be visited
child
emphasizing
the effect of
to the
tions have
regardless
race than his adoptive parents,
“different”,
that he is
and can lead to
child
Jones, supra
of the child’s own race.
note
Jackson, supra
of isolation. B.
note
a sense
family may
at 163.
children in
Other
Thus,
adopted
at 13-14.
while all
chil-
the targets
Chestang,
also become
of slurs.
they
with the
cope
dren have to
fact that
supra
Certainly
possibil-
note
at 103.
adopted,
adoptee may
are
interracial
ity
experiences,
of such traumatic
even more difficult experience
have an
effects,
their attendant
bears
psychological
since his status is evident to the world at
However,
on the child’s best interest.
large.
emphasized
cannot be
too
that the
strongly
The child
at times feel that no-one
opposing
mixing
desires of those
are
feelings
understands his confused
about
weighed,
to be
balance.
parents or his pain
being
his natural
at
existence of such
significant only
desires is
course, every
names....
called
Of
child
they
in that
may lead to acts directed
growing pains
at times
and feels
suffers
against
the child that
affect his
adversely
But
the black
no-one understands.
or her
interest. The
fails to at-
adopted
visibly
child is
different
significance
distinction,
tach any
to this
give
those he loves
this can
him a
stating flatly that “a well-intentioned ef-
complex
cope
more
situation to
with.
[Id
protect
fort
against
child
community
at 14.]
prejudice
proper justification,
[not]
itself,
for an
decision.” Ante at
sum,
consciousness
racial differ-
789-790. That is so only if
con-
the “effort”
the adoptive parents
ence between
and the
sists
barring
adoption.
But
by society’s compelling
child is necessitated
there is no reason for failing
weigh
fostering
interest
the child’s best inter-
effect of prejudice on the child’s best inter-
est. The trial court took note of race
est as one factor among a multitude.
required
so far as
to ascertain the child’s
interest,
its concern
explaining
both about
Since black children in interracial
fami-
problems
identity,
related to
and to rela-
lies may be even more exposed to racist
family.
tions with the world outside the
Its
blacks,
attitudes than other
their need for
findings
problems
fact
that such
exist and
survival skills is more acute. White par-
the child’s best interest would there-
ents, however, tend to be less
equipped
being equal
fore —all else
furthered
pass on those
—be
skills.
at
See discussion
home,
well supported by
the G.
evidence
supra.
It
is ironic and unfortunate
of record.
those black children most in need of surviv-
al skills are in environments
which are
III. FLAWS IN THE MAJORITY’S
least able to provide them.
APPROACH
Racial slurs are not the only kinds of
Overly
A. An
Narrow View
Rele-
public reaction that pose problems for the
vance of Racial Differences to
child and his
family.
range
respons-
Best Interest
Child’s
wide,
es is
and serves as a recurrent
re-
forth,
minder that the child is “different” from his
set
there are a number
already
As
family.
See B.
be-
Jackson,
respects
note
in which racial differences
*26
for more
calling
classification
the
is a racial
and child
affect
parents
tween
However,
scrutiny
Equal
under the
Pro-
majority
than minimal
interest.
the
latter’s
If,
the
example,
all that
relevant as
tection Clause.
treats all factors it considers
attitudes about
had addressed were
concept
identity.
court
subsumed
race,
to the race of
without direct reference
Moreover,
is reason to wonder how
there
to the race of the
parties
has
relation
actually
race factor
majority’s
much the
child,
ground
no
for the
there would be
enumerating
ques-
In
to do with race.
In
scrutiny.
in strict
majority
engage
the focus is
explored,
that should be
tions
satisfied, the court’s
finding
scrutiny
of the
strict
par-
attitudes and behavior
limiting
proc-
be read as
ents,
they
opinion
environment in which
cannot
and on the
to,
than,
other
albeit related
seg-
local schools are
ess to factors
(e.g.,
live
whether the
trial,
race itself.
regated). These were addressed
no one doubts that
are relevant.
they
overly
result of an
paradoxical
A second
scientists, the
But the
that social
it
the race factor is that
narrow view of
witnesses,
courts
expert
ultimately
effect of
to the
require
attention
whether, notwith-
grapple
have to
with is
there is no
even when
identity
race on
of intentions and
standing
very
best
of a race
parents
petition by prospective
are
part
parents,
efforts on the
of the
there
If attitudes
than the child’s.
different
the interracial context
potential problems in
were
environment
the extra-familial
in the intraracial
expected
kind not
the racial
factor
analysis,
dominate the
be
permitted
case. The court should
any adoption.
overlooked
could not be
case,
conclude,
that such
as it did in this
States, D.C.App., 398
Johnson v. United
See
pa-
persist
degree
risks
to some
even when
wheth-
(1979) (In ascertaining
A.2d
rental
environ-
attitudes and
external
commit-
has been
er an abuse of discretion
words, the
ment are favorable.
In other
relevant
whether all
ted,
criterion is
one
simply by
issue is not exhausted
considera-
considered). Yet neither
been
factors have
environment;
tion of attitudes and
a differ-
raise race
nor the court
prospective parents
parents
ence in race between
and child is of
are of the
all involved
as an issue when
independent significance.
common
simple:
The reason
same race.
expect
not to
lead us
experience
Yet the
sense and
majority
saying
close to
comes
single-
in the
identity problems
in the
race-related
viability
differences
relative
sup-
evidence
context,
expert
only
interracial and
'race
uniracial families are
Accordingly, when com-
coincidentally
ports
related to racial
that view.
indirectly
petitions
differences,
and intraracial
peting interracial
possible
due to a
statistical cor-
if the
hardly surprising
it is
relation
presented,
between the race and favorable
regarding
discussion
the court’s
attitudes or external environment.
focus of
family. But
However,
ante at
there is no
is on the
race
involvement,
there would
family’s
basis for excluding from consideration the
context,
absence of
more
direct
In this
influence of race. While the
no issue.
family
intraracial
majority
influence,
mention
de-emphasizes
specific
I do
obviously
race
not believe
court’s discussion
opinion
its
can be read as elimi-
prob-
potential
nating
finding
reflects a
evaluation.
pertain
do not
the court
lems identified
If instead
were read
opinion
family.
to that
degree
any significant
as reducing the race factor
to attitudes
regarding
race,
ease,
about
was evidence
there
environmental conditions
bearing on
each set
relations,
and concern
paradoxical re-
the love
The H.
sults would
child.
for the
follow. The
reason this would have
toward
court is
attitudes
positive
faced
emphasized
with a constitutional
issue is
their
culture,
had al-
that the
trial
directly
took the race of
child’s race and
raising of an-
parties
into
exhibited
why
ready
account. That is
there
been
*27
other black child in
family.14
approach
their
Both
Thus the more evenhanded
is to
take note of the fact-that
there are some
families
the opportunity
present any
had
to
respects
adoption
in which interracial
and all evidence regarding
respective
their
presents potential problems that are not
child, including
abilities to raise the
atti-
significant
in the intraracial context. See
having
tudes related to race. But
con-
just
II B
To
supra.
section
reiterate
one
facts,
including
sidered all non-race
example,
family,
in the uniracial
race does
treatment
that each
would
family
give
a
serve as
constant reminder to the
child, the court
petitions
concluded that the
large
world at
and the child that he is
had equal merit.15 Thus the trial court
adopted.
positive
Thus while the
attitudes
parties
concluded that
the race of the
and environment of the interracial family
tipped
balance,
slightly.
however
relevant,
are
by way mitigating some of
If the
really
race factor
has little to do
problems,
it would be difficult
regard
to
with the race of
parties,
majority
as the
them eliminating
entirely,
as
all risks
much
appears
believe,
to
then it would not be
making
supe-
less
the interracial alternative
unusual to find
identity,
that a child’s
in-
rior
approach
as to this factor. This
is
cluding racial
would be more
identity,
se-
supported by the record
evidently
and was
cure in an
placement
interracial
than ah
court,
adopted
said,
which
intraracial one. The majority
proposes
thus
Notwithstanding
affection,
love and
se-
[N
what appears,
superficially,
at least
to be a
questions
vere
identity arising
fair and
approach,
neutral
in which neither
the adoption
probably
and race most
interracial nor
adoption
intraracial
is pre-
large
would evolve.
In the world at
...
ferred. The majority
“the court can-
says
adjustments
there are countless
not properly weight
factor],
race
either
must be made.
[the
or
automatically
presumptively i.e., with-
above,
—
As discussed
the social researchers—
regard
out
against
evidence —for or
even those who advocate interracial alter-
To
adoption.”
cross-racial
Ante at 787.
generally accept
premise
natives —
where an intraracial
do otherwise
racially
would “add a
discrimi-
placement
is available
natory policy” and give the intraracial
and other factors are
it
equal,
preferable.
is
adoption a “head start.”
Id.
If such lan- Not even appellee’s expert witness contend-
guage simply means that the courtijs not to
placements
general,
ed that interracial
rule out interracial adoption, inject
per-
the H.
family
particular,
superi-
would be
sonal disapproval of
adoption,
or or as far as
race-related considerations
give racial
weight
differences an undue
as
concerned.
compared
factors,
with other
it
unobjec-
is
If an approach taking
poten-
account of
tionable. But
the prescription
clearly
tial problems associated with interracial
incorrect if it means that the court cannot
“preferénce”
amounts to a
for in-
give weight
that,
things
evidence
other
entirely permissi-
traracial
it
equal, intraracial adoption tends to further
legiti-
ble one.
is no less
preference
Such a
morey
a child’s interest
than interracial
preference
parent
mate than a
for a ytwo
adoption.
put
To
such relevant facts into
adequate
or for
re-
the balance is not evidence
To
of bias.
If, in
guise
sources to raise the child.
contrary, their exclusion
give
“head
majority’s
framework
neutrality,
start” to the interracial
rules
preference
out of order a
for intrara-
alternative.16
policy favoring
petitioners
14. See
at 40.
tion for a
black
However,
white ones or vice versa.
if the ma-
supra.
15. See note 3
jority’s statement meant
that a court cannot
petitioners’
take note of whether
race is the
majority
16. The
later states that the race factor
child, regardless
same as that of the
of what
preference
must be considered “without
for the
be,
particular
happens
I would
any party.”
race of
Ante at 787.
I concur in
disagree
in the text.
for the reasons elaborated
Certainly
justifica-
this conclusion.
there is no
discretion,
evidence,
ining the trial court’s exercise of
supported by
cial
proper
finds that no
factor
adoption by
against
it introduces
bias
and no
factor was
ignored,
improper
preju-
family.
just
black intraracial
It is
considered. How then does
arrive at
considera-
legitimate
dicial to eliminate a
considera-
conclusion that
trial court’s
illegitimate
one.
tion as it is
introduce an
requires
tion
the “racial factor”
reversal?
*28
by
so
that
the court’s
indicating
It does
Perspective”
B. The “Historical
“substantial,”
reasoning may not have been
gets
sug-
track in
majority
The
off the
a firm
foundation.”
and “based on
factual
prejudiced
that
the
gesting
possibility
view,
the
suggestion
the
that
my
In
either the
or bad faith use of race bears on
reasoning regarding the use of face
court’s
case. The
remedy
result or
in this
implausible,
but
is
anything
was
substantial
case law
majority
statutory
reviews
Although
clearly belied
the record.
is
as founded
today
rightly recognized
that
presented
lay
considerable
parties
as-
unjust racial
inaccurate
attitudes or
testimony addressing the merits of
expert
Indeed, histori-
sumptions. Ante at 788.
adoption at their own initia-
an interracial
racial atti-
the law has
cally
reflected
tive,
requested
trial court
and received
A.
generally
of those in power.
tudes
expert
Rather than
testimony.
additional
Higginbotham,
In
of Color
the MatteR
ruling,
the court
granting an immediate
court’s
(1978). For
there is one
example,
decision until it had had a further
reserved
that
conclusion
mixed race children
weigh
to
Its writ-
opportunity
the issues.
will have a
opportunity
...
much better
devoted more discussion to race
ten order
society if
rightful place
to take their
in
great
It took
care
any
than to
other factor.
own
they
brought
among
their
up
possible
out that it considered the
point
Ward,
people.
36 Wash.2d
[Ward
only
to be
effects of
interracial
(1950).]
216 P.2d
basis of a
among
not the
many,
one factor
say,
Needless to
in the proposition
concur
that
rule.
It identified the concerns
per se
appellate
vigilant
that
in
courts must be
adoption by the G.
led to the conclusion that
correcting
they
i.e.,
such
oc-
prob-
instances whenever
preferable,
would be
adjustment
is
slightest
cur. But there
indica-
and social
psychological
lems of
years if the
arise in the adolescent
improper
preconceived might
tion that
attitudes
This
adopted.
were
alternative
assumptions
factual
the decision interracial
influenced
expert
clearly indicated
below;
explanation
indeed,
squarely
is
every indication
to that effect was credited.
testimony
to the contrary.
fact that discrimina-
short,
every indication is that
tory uses
not a
have occurred is
reasoning,
regards
particularly
court’s
reason to
uses.
legitimate
eliminate entirely
restrained,
issue,
thoughtful,
the race
explained
A,
As
supra,
II
section
word,
serious:
substantial.
history does not
apply
a refusal to
justify
the court’s
factual
foundation” for
“firm
intermediate
benign
considera-
scrutiny to
present
clearly
reasoning
conclusions
tion of race.
it bear on the
Neither should
testimony.
record
That
in extensive
application of the standard that is chosen.
on that
reasoning was in fact based
court’s
C.
Trial Court’s
Substantiality
of the
the court’s
amply
indicated
record
Consideration
Differences
of Racial
risks
reference
Between Parents and Child
adolescence,
fruition
and to
come to
family.
Although
with the
acknowl-
relations
world outside
majority does not
edge
no basis for
otherwise.
supposing
some
There is
appropri-
of the
that it is
reasons
ate to take
petition-
note of
of the
the race
Rea-
D.Seeing Less in
Trial Court’s
ers, it
compelling
nonetheless
decides
Actually
Than
There
soning
Was
interests
Accord-
justify
to race.
attention
ingly,
authorization
its
statutory
majority apparently recognizes,
As the
reached,
all, by
consideration
In exam-
can
if at
conclusion
upheld.
race is
departing
procedure
from the normal
But the
treats the trial court’s
majority
of discretionary
the review
trial court rul
if it
opinion as
constituted the court’s rea-
States,
ings.
supra,
In Johnson v. United
rather than
soning process
merely post hoc
we drew a fundamental
between
distinction
it.
Inexplicably,
evidence of
degree
of explanation ordinarily re
support
proposition
cites Johnson as
for the
quired of a trial
expected
court and that
that the court’s attention to the race issue
agencies
administrative
review of their
presumed
must be
be limited to the
respective exercises of discretion. As aptly words contained in its order.
It relies on a
explained
Washington Public Interest
quoted
impractical
observation that
Commission,
Organization v. Public Service
expect
explanation
a detailed
of decisions
D.C.App.,
(1978),
approach judicial Court to [an considering family race cial such as the could not step procedure for H.’s] is, why to see itself. Rather is context, it is difficult sustain required in this be there not a better alternative? thought reversal to however, finds the lack of majority, adoption by then concluded that The court It findings was a “better alternative.” ... as to how family the G. “specific clearly more imagine is difficult words black particular to affect likely families comparison a of the two conveying families to be fatal.17 in the H. & G. child” as to the racial factor. However, the effort to dis- Ante at reading opinion judgment A line of the from a “generalized” line a tinguish of the families comparison reveals that the in- inquiry concerning “particularized” both substantial respect race was misleading. before it dividual began and based on the record. The court on the quite plausible seems approach This by referring expert its discussion to the surface, distinction blurs supposed but the dis- testimony joining experts’ closer examination. Of considerably on re- may there is not more conclusive course, family is of that “this the statement adoption. search on the relation of race would be true race than D.G.” different It is evident the discussion followed families. many adoptive great potential predictions on such as the ex- was founded virtually any is true of other But the same on what is known perts give could based including emphasized those relevant fact their about and on integrated majority (e.g., living in an in- knowledge particular parties integrated attending neighborhood, conclu- volved. The court noted “no posi- have school). That such factors sive absolutes are to be drawn on the basis “generalization” tive effects is no less seem, however, entirely of race. It would of inference that the type than the grows reasonable that the child older the as Indeed, goal predic- criticizes. where of this would in- problem ramifications tion of future conditions such how crease.” It is clear that “the ramifications aby given child’s interests will be served problem” of this refers to social and psycho- any pro- evidence has adoption, piece no logical associated with interracial risks possible bative value unless it is relate above in- beyond those that past experience adoptive of other here in adoptions general. The succeed- ing Only (general- sentence then can one infer explicitly indicates that families. positive took into account the atti- ize) of this experience therefrom that *31 tudes and efforts which would tend to miti- Thus there is likely is to be similar. gate problems: stage, those “At a later testimony reliance on nothing suspect about affection, notwithstanding love and severe experi- on from the “generalization” based questions identity arising from the similarly families who are ence of other adoption probably race most including ways, situated in relevant issue, evolve.” Having identity stressed the and child. parent differences between the court then referred to relations decision is adoption The fact people family, saying, outside the “In the prediction generali- on inevitably based large, world at as circle of contacts and way: in another it important zation is widens, adjust- routines there are countless specific on the extent to which places limits ments which be types must made.” Both course, one findings meaningful. can be Of considerations were clearly upon founded piece of evidence individu- could recite each ample more than I find record evidence. in futility it would be an exercise ally, but that, implausible the majority’s assertion value to attempt to attach a discrete while ample support present, record is .Rather, what a court each bit thereof. may trial court not have intended to rest its is to look at all must do in such situations on that evidence. It was not reasoning judge the interrelated the evidence and for the recite the testi- necessary court to whole, the broad conclusion arriving having disregarded at the risk of mony, balance, that, pre- one alternative seems by this court. Emphasis supplied. 17. adoption presents certain risks to a child’s majority’s the others. The dis-
ferable to welfare, when may mitigated though cussion of the factors to be considered be will no adoption proposed interracial by special part not eliminated efforts on the trial provide guidance useful doubt I think this factor parents. of the finding But I whether judges. question among many and should included judge in opinion such as that trial others relevant to the child’s best interest. will insufficiently this case to be detailed that, this, as where It follows a case such effect independent have a further and equipoise, other factors are in the interra- decision- improving quality result. race- may sway cial factor Since matter, making. practical As a the most per- consciousness in this limited context is for the provide guidelines we can do is to missible, judgment and the court’s discretion, our re- place court’s and then supported by child’s best interest liance on the trial court to arrive at fair erroneous, the re- clearly evidence and not case, In this the court devoted judgments. sult should be affirmed. space more to the discussion of the race it while We must live in the world as course, it any issue than to other factor. Of as it be. we strive to make it should say more. But what it did could have said demonstrating succeeded in that race was entirely limited and
considered There was no indication that
proper way.
countervailing favoring losing evidence
party was excluded from consideration.
CONCLUSION require Constitution does not a court ROBINSON, Appellant, Timothy L. to blind affecting itself realities a child’s interest, best even when those depend facts on the respective races of the STATES, Appellee. UNITED child. What inis the best interest child is a factual be resolved No. 81-1137. the trial court. We cannot require that Appeals. Court District of Columbia courts, even indirectly, find facts contrary to their view of the evidence. That a ma- 15, 1982. Sept. Submitted jority of panel of this might have Dec. Decided drawn different conclusions from the evi- dence concerning
general and the partic- G. and H. families in
ular is not a basis for reversal. While os-
tensibly accepting propositions, these
majority’s opinion may be read as circum-
scribing the consideration to be given to
race, to an unjustifi- extent which I think is
able. Probably more significantly, the ma-
jority has narrowed its examination of the
court’s reasoning so as to see less than is
actually there. The result is to lead the astray from the relatively
straightforward posed issue by this case:
whether is constitutionally permissible
and appropriate for a court give any
weight to evidence that an interracial notes cf. Moore v. is limit Thus, inquiry the focus of our tor. (1978) (detailed, A.2d written reasoning the court’s ed to whether cases); Ut findings required custody all “substantial,” at based id. sufficiently 1167, 1170 D.C.App., v. 364 A.2d ley Utley, record, id. on a “firm factual foundation” O’Meara, (1976) (same); D.C. O’Meara scrutiny. withstand strict at (1976) (same). This App., 355 A.2d accordingly must turn on whether here ease decision Because the trial court’s trial, not written decision itself demon comfortably after trial court’s was rendered during presures subject, example, properly analyzed for strates that the court 365; trial,” issue, see note “the midst of id. and answered the critical racial asked justification requir- supra, general precisely then tailored its use questions, and ing us record and infer to “examine the of this particular of race to the best interest used, trial id. at reasoning” the court child. present importantly, not here. Even more turn, first, analytic I to the therefore because nature of constitutional race that steps questions respecting requiring application trial court’s decision — to address. expected trial court should of race manner tailored to precisely in a take the trial court’s exercise up then child’s best interest —there no room and conclusions findings discretion —its appellate reasoning court to infer themselves. did may the trial court have intended but appellate To do so would invite state. Steps and Proper Analytic Relevant creation, and racial approval, Questions As to Race analysis may not —have taken —or case, par- place. ordinary In the where in an When race is relevant court’s discretion ty challenging trial contest, make a court must abuse, risks proving has the burden of family’s three-step (1) how each evaluation: appellate court deference to develop the child’s likely to affect Johnson, minimal, long court are as the identity, including ment of a sense 30-33 supra, criteria are met. See notes compare identity; (2) how the families
Notes
notes identity). cial confidence,36 self-esteem and and the 4. child’s Trial Court’s Analysis: Findings ability to cope problems outside the and Conclusions family.37 Relevant questions bearing on case, present In the the trial court obvi- concerns, one or more of these for example, ously was thorough, conscientious and prop- would be: To what family extent would the erly treating race as only one of several expose the child to others of her own race relevant considerations. After reviewing through the immediate family? Through the other concerns specified statute, family friendships? Through neighbor- race, court took the first analytic step as to Through hood? school? What other efforts beginning with the proposition —for will the family likely most make to foster there was support testimonial “race —that the child’s sense of ra- identity including — is a problem which ... should ig- not be cial and identify cultural self-esteem? —and nored or minimized.” The court carefully To what extent has family associated noted, however, that, “[ejonversely, there itself with efforts to enhance respect are not conclusive absolutes to be drawn on the child’s race and culture? To what ex- basis race.... The Court is con- tent has family reflected any prejudice cerned that little medical or scientific atten- against the race of the child it proposes tion has been problem.” devoted adopt? But the generally Court then found that “as When the court takes the step grows second child older the ramifications of this increase,” the analysis comparing problem the families —it ques- and “severe — hardly would be if the answers to surprising identity arising tions of from the adoption questions prospective parents these favor and race most probably would evolve.” As the same race as the But even a consequence, child.38- the court concluded that ra- true, when that it cial possible parent is also differences between and child prospective parents of a different race weighed negative should be as a factor in very positive ratings ques- receive on these evaluating adoption.39 The court then an- so, decision, tions. If analytic step preceded by third nounced its a rhetori- —how significant cal “The question: racial differences are when Court does not conclude all relevant factors are such could not sus- together taken a[n interracial] —be- Rather, is, comes especially important; question for in that sit- tain itself. is there uation the racial an- may present factor such not a better alternative?” The Court close understand it will not have swered in the affirmative. determinative, significant, perhaps impact although court to have concluded factors, together, may it would if racial differences between the other taken have parent family, the white foster simply slightly child were deemed favored wholly negative standing adopt, given equal factor. at least Note, dren, (1975); Serv., Racial 36. See 227 Pa. Greene v. Catholic Social Soc.Work 589, 590, Super. (1973) Matching Adoption 306 A.2d Alterna and the Dilemma: (white girl seeking custody woman black Place, 17 J.Fam.L. tives for the Hard to considered her “different and of a lower moral (1979); supra 360-61 R. & H. Simon Altstein, black”). fibre because she was note at 89-107. 37. See J. note 16 at 284. All Ladner, Thus, colleague’s contrary dissenting