This blog addresses legal principles applicable to the court’s fitness finding in the adoption cases when the health or fitness of the adoptive petitioner is at issue.

There are statutory provisions that address both fitness as well as health of the petitioners, among other parties, and relevant case law, which extend possible waiver of the doctor-patient privilege when in the best interest of the child or justice to the petitioners as well as the natural parents.

There is the Termination of parental rights: D.C. Code §16-2353 (b)(2), the court is charged with in considering what is in the best interest of the child to make a direct inquiry as to “physical, mental and emotional health of all individuals involved….” A triggering statutory provision under DC Code §16-304 (2).

DC Code § 16-309(b)(2), which requires a finding by the court that the petitioner is fit, and able to provide the child with a proper home and education.

And particular statutory provisions that address medical privilege: D.C. Code §4-1321.05 provides that: [n]otwithstanding the provisions of §§ 14-306 and 14-307, neither the spouse or domestic partner privilege nor the physician-patient privilege shall be grounds for excluding evidence in any proceeding in the Family Division of the Superior Court of the District of Columbia concerning the welfare of a neglected child; provided, that a judge of the Family Division of the Superior Court of the District of Columbia determines such privilege should be waived in the interest of justice.

The case law on the subject is also well established.  In In re. O.L, 584 A.2d 1230 (D.C. 1990), the Court affirmed the trial court who had properly waived the mother’s physician-patient privilege and stated that “the waiver applies to ‘evidence’, and this term is broad enough to encompass information possessed by a doctor or other health professional whether that information was previously required to be disclosed or not.”  The Court further instructed that the statutory doctor-patient privilege should be waived in the interest of justice and when a parent’s mental or physical capacity to care for the child is at issue.  Id. at 1231; see also In the Matter of N.H., 569 A.2d 1179, 1184 (D.C. 1990) (“[a]bsence of a statutory physician-patient privilege in child neglect proceeding does not significantly or impermissibly infringe on any privacy right of a parent regarding medical information; the interest of the District of Columbia in assuring that a mother with an organic brain disorder be mentally competent to raise her daughter was sufficiently strong to limit the mother’s privacy right to information about her own mental health when that information was required for a disposition in the best interests of her child.”   That “civil neglect statutes are designed to enable the state to protect children and, in order for the court to determine whether a child’s welfare requires intervention, the court must be apprised of all the facts.”)

The court in In re DRM, ordered mental health/psychological evaluation of the mother concerned that such would affect directly the parenting of the child.  570 A.2d 796 (D.C. 1990).  Moreover, the Court of Appeals cases have instructed concisely that in the adoption cases not only the parental capacity of the natural parents affected by the medical issues are legally significant but also the adoption petitioner’s.  In re DeF., 307 A.2d 737 (DC 1973)(age and health of the petitioner at issue); In re ACG, 894 A.2d 436 (D.C. 2006).

Although the cases are generally focused on the parental medical fitness both physically and mentally – parallel arguments could be made effectively that the proposed adoption petitioners are equally in a parenting role, if successful through an adoption petition, and thus same legal principles: best interests of the child, and in the interest of justice – equally apply to the petitioners.

In fact, one could argue that more scrutiny must be placed on the adoptive parents’ mental and physical fitness than the biological parents’ as in the former there exists no biological link and by granting the adoption petition the biological link is in fact severed and thus more scrutiny is warranted when health or fitness of the proposed petitioner is at issue.

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