Petition of RMG

454 A.2d 776, 34 A.L.R. 4th 122

• Court: District of Columbia Court of Appeals
• Decided: December 29, 1982
• Docket: 79-747
• Status: Published

Opinions

FERREN, Associate Judge:

In this case of competing petitions for adoption of a black child, we review a trial court decision granting the petition of the child’s black grandparents and denying the petition of her white foster parents. Applying all relevant factors, the trial court found both families suitable to adopt the child, but concluded that the race factor tipped the scales in favor of the black grandparents.

Although race, among other factors, can be relevant in deciding between competing petitions for adoption, the statute expressly incorporating that factor, as well as the trial court’s application of it, must survive “strict scrutiny,” in order to comport with the equal protection requirement of the Constitution. I conclude that the statute on its face withstands constitutional challenge but that the trial court’s application is not sufficiently precise to satisfy the Constitution. The judgment accordingly must be reversed and the case remanded for further proceedings.

I. STATEMENT OF FACTS AND PROCEEDINGS

D. was born September 22, 1977, to unwed, teenage, black parents. By that time, her father lived in Cleveland, Ohio; her mother, in Washington, D.C. In early January 1978, D.’s mother decided to give her up for adoption and signed papers relinquishing parental rights. She did not tell the natural father. Nor did she tell his mother and stepfather, appellees R.M.G. and E.M.G.

On January 6, 1978, the Department of Human Resources placed D. with foster parents, appellants J.H. and J.H., who are white. The foster mother realized almost immediately that D. was not healthy. D. was suffering from nausea and diarrhea and, although more than three months old, weighed only 10 pounds. D., moreover, was extremely lethargic and, according to Dr. Robert Ganter, a child psychiatrist, showed signs of mental retardation. During the next year, however, D.’s foster parents nurtured her to good physical and mental health.¹

On April 26, 1978, a few months after D. came to live with them, J.H. and J.H. filed a petition for adoption. Initially, the Department of Human Resources recommended approval. At the foster mother’s insistence, however, the Department notified the child’s natural father of the proposed adoption. He objected. His own mother and stepfather, R.M.G. and E.M.G., then filed a petition to adopt D. The natural father consented. The Department of Human Resources studied the grandparents’ home and, withdrawing its earlier support of the foster parents’ petition, recommended approval of the grandparents’ petition.

At the hearing on both petitions beginning on April 27, 1979, the court received the following evidence: The foster parents have four other children — three natural and a fourth, a black male, by adoption. They are a military family, living on a racially integrated military base with racially integrated schools. When asked about the problems of raising a child of another race, the foster mother testified that she and her husband had begun “an affirmative program” with their adopted male child. For example, she had obtained pre-school black history and coloring books for their son. She testified, “I make sure he knows that he’s not white. I don’t care how long he lives with us, he’s black, and he’s beautiful, and he’s ours.”²

The child’s natural grandmother and her husband also testified at the hearing. The grandmother has eight children (all by a previous marriage) of whom the youngest was 14 at the time of the hearing. She also has nine grandchildren, two of whom reside at her home (one is a few months younger than D.). Although the grandmother is employed outside the home, she testified that she would take a leave of absence to be with the child. Both the grandmother and her husband added that they wanted to raise D., that they were able to care for her, and that they desired to show her their love.

Doris Kirksey, a social worker, testified on behalf of the Department of Human Resources. She recommended D.’s placement with her grandparents “based on the premise that the best place for a child is ... with blood relatives.” Ms. Kirksey discounted any harm that might come to D. from removal from her foster family. She based her assessment, in part, on the advice of her agency psychiatrist, Dr. Frances Welsing.

The trial court asked Dr. Welsing to testify in person. Her position, in a nutshell, was that cross-racial adoption always will be harmful to a child and — at the very least — should be discouraged. She emphasized that a non-white child would encounter particular difficulties in a white home upon reaching adolescence. Dr. Welsing made her recommendation to the Department of Human Resources without having met the J.H. family. Most of Dr. Welsing’s testimony concerned the problems of cross-racial adoption in a broad societal context.

In response to Dr. Welsing, the foster parents called their own expert, Dr. F. Jay Pepper. He identified several factors germane to adoption. He agreed that race should be considered, but only with respect to the attitudes of the particular family petitioning for adoption. Like Dr. Welsing, Dr. Pepper had not met J.H. and J.H.

After reciting the procedural history of the case, the trial court made the following findings and conclusions:

Colonel H_and his wife, Caucasians, presently have four children, one of whom is a Black adopted child. They are a stable, middle-income, affectionate family unit who will likely travel to some degree because of the father’s military career. They clearly love the child in question.

The G_family is a stable Black family of modest means. Mr. G_is the second husband of Mrs. G-, her first husband having died. She has raised eight children and also has nine grandchildren. At least two of the grandchildren reside in the G_ home. Mr. and Mrs. G_ are both employed. If the baby is placed in her care, she plans to take a leave of absence to be with the child. The Court is impressed with the affectionate nature and willingness of the G_family to sacrifice.

In any adoption, the paramount concern is the best interests of the child. In that regard, the Court should consider an array of factors. Among them are:

1. The age of the child.

2. The stability of the adopting family and reasons for seeking an adoption.

3. Financial and other resources available to the adopting family.

4. Existence of love and affection between the persons involved.

5. Blood relationships, if any.

6. Race.

1. Any other significant factors.

It is equally important that the Court weigh these factors in terms of past, present and future.

It is seen that the child is very young— less than two years old. In her young life she has already undergone significant and probably traumatic changes. According to expert testimony, these changes or shifts are permanently recorded by the mind. Similarly, it is agreed that sudden changes of the family setting or other vital parts of one’s environment can cause uncertainty, emotional distress and a sense of insecurity. Having regard for the history of this case, it is predictable that another change in the life of this child will cause some degree of injury or harm to her.

The pivotal question becomes, given the available alternatives, evaluated now and for the future, what decision is prudent as being in the child’s best interests? Some aspects of this case are clear. Both families have shown love and concern for the child. Both families are reasonably stable; the H_family has greater financial resources.

With regard to blood relationships, the evidence indicates that it is a factor but certainly not conclusive. Thus, in the absence of love, affection, stability, and other supportive traits, blood relationship alone confers no special right of parenting. Yet the question should also be weighed in the interest of family tradition, culture and other intangibles.

The question of race is important. It is interesting that all the experts who appeared in this matter agreed that not enough work has been done on the subject as it pertains to adoption. However unpleasant, it would seem that race is a problem which must be considered and should not be ignored or minimized. Conversely, there are not conclusive absolutes to be drawn on the basis of race. It would seem, however, entirely reasonable that as a child grows older the ramifications of this problem would increase. At a later stage, notwithstanding love and affection, severe questions of identity arising from the adoption and race most probably would evolve. In the world at large, as the circle of contacts and routines widens, there are countless adjustments which must be made. Given the circumstances in this case, the child’s present status is relatively secure and carefree. The future, in each of its stages — childhood, adolescence, young adulthood, etc. — would likely accentuate these vulnerable points. The Court does not conclude such a family could not sustain itself. Rather the question is, is there not a better alternative? The Court is concerned that little medical or scientific attention has been devoted to this problem. The Court is concerned that, without fault, the H_s stand to lose a beloved member of their family. However, our test remains the best interest of the child. It is believed that applying all of the factors to be considered, and evaluating the question in terms of past, present and future, that the appropriate alternative is adoption of the child by the G_family.

On June 1, 1979, the trial court granted the grandparents, E.M.G. and R.M.G., an “Interlocutory Decree of Adoption,” which stated that the decree “shall automatically become final on [December 3, 1979], unless it shall in the interim have been set aside for good cause shown.”³ On June 6, 1979, the foster parents filed a “Supplemental Motion For Amendment of and Additions to Findings of Fact.” The trial court denied the motion on June 12, 1979, and on July 3, 1979, also denied the foster parents’ motion for a stay pending appeal.⁴ The foster parents filed a timely appeal of the June 1 interlocutory decree on June 6, 1979.⁵

II. THE STATUTE: ITS CONSTRUCTION AND APPLICATION

A petition for adoption “shall contain” information about the races of the petitioner and the prospective adoptee, see D.C. Code 1973, § 16-305(4) and (5),⁶ unless “the prospective adoptee is an adult” or “the petitioner is a spouse of the natural parent” who consents to the adoption. Id. 1978 Supp., § 16-308.⁷ The adoption statute, therefore, permits the court to take race into account, although it does not provide any guidance as to how the court is to do it. Nor does the legislative history. Instead, the statute, id. 1973, § 16-309, simply states:

(b) ... [T]he court may enter a final or interlocutory decree of adoption when it is satisfied that:

(1) The prospective adoptee is physically, mentally, and otherwise suitable for adoption by the petitioner;

(2) the petitioner is fit and able to give the prospective adoptee a proper home and education; and

(3) the adoption will be for the best interests of the prospective adoptee.

Only two reported decisions in this jurisdiction address the question of race in an adoption proceeding. In In re Adoption of a Minor, 97 U.S.App.D.C. 99, 228 F.2d 446 (1955) (interpreting predecessor statute), the court held that the trial court improperly had denied a black stepfather’s petition to adopt, with his wife’s consent, his wife’s white son. The court rejected the trial court’s reasoning that the white child “ ‘might lose the social status of a white man by reason’ ” of his adoption by a black. Id. at 100, 228 F.2d at 447. The court reasoned:

Nor can denial of the adoption rest on a distinction between the “social status” of whites and Negroes. There may be reasons why a difference in race, or religion, may have relevance in adoption proceedings. But that factor alone cannot be decisive in determining the child’s welfare. It does not permit a court to ignore all other relevant considerations. Here we think those other considerations have controlling weight. [Id. at 101, 228 F.2d at 448 (footnote omitted).]

The court thus left open the possibility that race could be relevant to an adoption decision but did not specify what circumstances might justify its use.⁸

More recently, this court expressly confirmed the relevance of race to adoption. In In re DeF, D.C.App., 307 A.2d 737 (1973), a mixed-race couple, wishing to adopt a child of mixed race, refused to indicate their race or religion on the adoption petition, alleging that the statutory requirement was unconstitutional. Id. at 738. We cited In re Adoption of a Minor, supra, for the proposition that race can be a relevant factor, In re DeF, supra at 739 n. 3, but we declined to address the constitutional issue. We noted that there was no real question of the parties’ race or the merits of the petition; thus, we approved the adoption as if the petition had been amended with the information the statute required. Id. at 739-40.⁹

In summary, neither the adoption statute itself nor the cases interpreting it provide much guidance as to whether race may be relevant to an adoption, consistent with the Constitution — especially in an adoption contest. Petitioners accordingly present a new constitutional challenge, alleging broadly that the “equal protection doctrine of the Constitution prohibits the use of skin color-defined race as a relevant issue in an adoption.”¹⁰

III. STRICT OR INTERMEDIATE SCRUTINY?

Over the years, the Supreme Court has held that a statute which on its face takes race into account is constitutionally suspect and must receive “strict scrutiny.” Regents of the University of California v. Bakke, 438 U.S. 265, 290-91, 98 S.Ct. 2733, 2748, 57 L.Ed.2d 750 (1978) (Powell, J., announcing judgment of the court) (hereafter Powell, J., opinion); McLaughlin v. Florida, 379 U.S. 184, 191-92, 85 S.Ct. 283, 287-288, 13 L.Ed.2d 222 (1964); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944). As a result, racial classifications will be held constitutional only if shown to advance a governmental interest that is “compelling,” Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972); Graham v. Richardson, 403 U.S. 365, 375, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534 (1971), or “overriding,” Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); McLaughlin, supra 379 U.S. at 192, 85 S.Ct. at 288, and if the particular use of race is “necessary” to accomplish that purpose. Bakke, supra 438 U.S. at 305, 98 S.Ct. at 2756 (Powell, J., opinion); In re Griffiths, 413 U.S. 717, 722, 93 S.Ct. 2851, 2855, 37 L.Ed.2d 910 (1973); Dunn, supra 405 U.S. at 342, 92 S.Ct. at 1003; McLaughlin, supra 379 U.S. at 196, 85 S.Ct. at 290. The Court has said on a number of occasions, moreover, that a racial classification can be necessary to serve a compelling governmental interest only when “precisely tailored” to achieve its legitimate purpose. Plyler v. Doe, - U.S. -, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982); accord Dunn, supra at 405 U.S. at 343, 92 S.Ct. at 1003; Zablocki v. Redhail, 434 U.S. 374, 388, 98 S.Ct. 673, 682, 54 L.Ed.2d 618 (1978). As a consequence, some members of the Court have noted Professor Gunther's observation that, given the severity of the scrutiny, racial classifications generally do not survive; such scrutiny is “ ‘strict in theory and fatal in fact.’ ” Bakke, supra 438 U.S. at 362, 98 S.Ct. at 2784 (Brennan, J., joined by White, Marshall, and Blackmun, JJ., concurring in the judgment in part and dissenting in part) (hereafter Brennan, J., opinion) (quoting Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972)).

More recently, however, in the context of affirmative action plans intended to remedy past discrimination, four Justices concluded that “benign” racial classifications permit an intermediate standard of review between strict scrutiny and the more generally applicable “rational basis” test.¹¹ Fullilove v. Klutznick, 448 U.S. 448, 519, 100 S.Ct. 2758, 2795, 65 L.Ed.2d 902 (1980) (Marshall, J., joined by Brennan and Blackmun, JJ., concurring in the judgment) (hereafter Marshall, J., concurring); Bakke, supra 438 U.S. at 357, 361-62, 98 S.Ct. at 2782, 2784 (Brennan, J., opinion).¹² Under the intermediate approach, to justify an allegedly benign racial classification “an important and articulated purpose for its use must be shown.” Id. at 361, 98 S.Ct. at 2784 (Brennan, J., opinion). More specifically, it must be a purpose that serves an important governmental objective to which the prescribed use of race is substantially related and which — in contrast with the usual situation when race is invoked — does not “stigmatize[ ] any group ...,” id., by reflecting a “presumption that one race is inferior to another” or by putting “the weight of government behind racial hatred and separatism.” Id. at 357-58, 98 S.Ct. at 2782 (Brennan, J., opinion); accord Fulli-love, supra 448 U.S. at 519, 100 S.Ct. at 2795 (Marshall, J., concurring).¹³

This acceptance of benign racial classifications, intended to further governmental interests that, while not compelling, are “important,” id., or “substantial,” Plyler, supra 102 S.Ct. at 2395, reflects the intermediate or “middle-tier” scrutiny which the Court developed a number of years earlier to address sensitive, but not inherently suspect, classifications such as gender, Craig v. Boren, 429 U.S. 190, 197-99, 97 S.Ct. 451, 456—457, 50 L.Ed.2d 397 (1976); id. at 210, 97 S.Ct. at 463 (Powell, J., concurring); see Mississippi University for Women v. Hogan, - U.S. -, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982), and, more recently, alien children. Plyler, supra. See generally L. Tribe, American Constitutional Law § 16-30, at 1082 (1978).

A majority of the Court, however, has not accepted this intermediate review standard for benign racial classifications of any sort. But even if that standard were applicable in the context of affirmative action to remedy past discrimination, as four Justices have urged, I would not find it applicable in a family-law context, where racial classifications over the years have resulted in particularly vivid examples of invidious discrimination. See Part IV.B.l. infra. I therefore conclude that strict scrutiny is required here; statutory recognition of race as a factor to be weighed in an adoption proceeding “call[s] for the most exacting judicial examination,” on the ground that “[rjacial and ethnic distinctions of any sort are inherently suspect,” Bakke, supra 438 U.S. at 291, 98 S.Ct. at 2748 (Powell, J., opinion). It follows that this “racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979) (upheld Massachusetts lifetime veterans preference under state civil service system against allegation of gender-based discrimination); accord Washington v. Seattle School District No. 1, —— U.S. -, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982); Crawford v. Los Angeles Board of Education, - U.S. -, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982). I proceed, accordingly, to apply the traditional, strict standard of review.

IV. STRICT SCRUTINY OF THE ADOPTION STATUTE, AS AUTHORIZED AND APPLIED.

The cases I have found concerning the use of race in an adoption statute do not discuss whether advancement of a child’s best interest is a “compelling” governmental interest. See, e.g., In re Adoption of a Minor, supra; Drummond v. Fulton County Department of Family & Children’s Services, 563 F.2d 1200 (5th Cir.1977) (en banc), cert. denied, 437 U.S. 910, 98 S.Ct. 3103, 57 L.Ed.2d 1141 (1978); Compos v. McKeithen, 341 F.Supp. 264 (E.D.La.1972) (three-judge court); Beazley v. Davis, 92 Nev. 81, 545 P.2d 206 (1976). Implicitly, though, the courts treat it as such — and I agree. The critical question, then, is whether the particular use of race, as authorized and applied, is “necessary” — and thus precisely enough “tailored” — to achieve the child’s best interest.

A. Statutory Authorization of the Race Factor

I turn, first, to statutory authorization. As noted earlier, the statute does not bar cross-racial adoption, which of course would be fatal. See In re Adoption of a Minor, supra at 101, 228 F.2d at 448; Compos, supra at 268. Thus, the racial classification is sustainable, if at all, only because it is one among a number of relevant factors. See In re Adoption of a Minor, supra at 101, 228 F.2d at 448; Drummond, supra at 1204-05; Compos, supra at 266.

There is, however, an important caveat: if race is to be a relevant factor, the court cannot properly weight it, either automatically or presumptively — i.e., without regard to evidence — for or against cross-racial adoption. To do so would add a racially discriminatory policy to evaluation of the child’s best interest. As a consequence, in an adoption contest, petitioners of a particular race would receive a head start, contrary to the constitutional requirement that the use of race — which is “presumptively invalid” — must be affirmatively justified. Feeney, supra 442 U.S. at 272, 99 S.Ct. at 2292; see Compos, supra at 266; cf. In re Marriage of Kramer, 297 N.W.2d 359, 361 (Iowa 1980) (in custody proceeding “no assumptions are automatically warranted by racial identity”; race can be a factor only if there is some “demonstrated relevancy”).¹⁴

The question thus becomes: whether statutory authority to consider race among the factors relevant to adoption, without preference for the race of any party, can ever be “necessary” for a determination of the child’s best interest. Appellants say it cannot be, alleging that the “equal protection doctrine of the Constitution prohibits the use of skin color-defined race as a relevant issue in an adoption.” I cannot agree with that unqualified statement.

Whether adopted by parents of their own or another race, adoptees often find it difficult to establish a sense of identity.¹⁵ “Identity,” in this context, has at least three components: (1) a sense of “belonging” in a stable family and community; (2) a feeling of self-esteem and confidence; and (3) “survival skills” that enable the child to cope with the world outside the family.¹⁶ One's sense of identity, therefore, includes perceptions of oneself as both an individual and a social being. While adoptive parents’ attitudes toward the adoption and their child are not the only influence on that child, these parental attitudes do affect, to a significant extent, whether the child will feel secure and confident in the family and community.¹⁷ Because race may be highly relevant to these parental attitudes, see note 17 supra — as the expert witnesses of both parties confirmed — it is relevant to the larger issue of the child’s best interest. See In re DeF, supra at 739.

I conclude, accordingly, that in a significant number of instances where prospects for adoption are evaluated, those who are responsible for a recommendation and decision — social workers from the Department of Human Resources, expert witnesses at trial, and the trial court itself — will not be able to focus adequately on an adoptive child’s sense of identity, and thus on the child’s best interest, without considering race. Statutory authority for the court to take race into account, therefore, can be critically important in adoption proceedings. When considered among a number of factors, on the basis of evidence, without automatic or presumptive preference for an adoptive parent of a particular race, that criterion does not reflect a “racial slur or stigma” against any group. United Jewish Organizations v. Carey, 430 U.S. 144, 165, 97 S.Ct. 996, 1009, 51 L.Ed.2d 229 (1977) (plurality opinion); see Drummond, supra at 1205. It is a criterion that markedly contrasts with the impermissible use of race both in facially discriminatory statutes¹⁸ and in facially neutral statutes — some referring to race,¹⁹ others not²⁰ — masking invidious racial discrimination in the law either as enacted²¹ or as administered.²²

In sum, an inherently suspect, indeed presumptively invalid, racial classification in the adoption statute is, in a constitutional sense, necessary to advance a compelling governmental interest: the best interest of the child. It thus survives strict scrutiny — a result that is unusual, as racial classifications go, but not precluded.

B. Judicial Application of the Race Factor

The fact that the adoption statute does not per se reflect an unconstitutional denial of equal protection does not end our inquiry; for although — as a general proposition — the use of race, as one factor, may be necessary to serve the best interest of the child, there also is risk that this classification may be invoked in a racially discriminatory fashion. Thus, there remains the significant question whether the racial classification in the adoption statute, as applied in this particular case, is precisely enough tailored to the child’s best interest to survive strict scrutiny, or suffers instead from a more generalized application that possibly reflects invidious discrimination.

I therefore turn to application of the statute. To provide perspective — to examine the risk of invidious discrimination — I begin with an historical look at the exercise of judicial discretion, applied to race, in adoption and child custody proceedings.

1. Historical Perspective

Thirty years ago, the Supreme Court of Washington awarded custody of the children of a black father and a white mother to the father simply because they resembled him:

We do not question the mother’s love for her children. But we have always stated, in divorce cases, that our primary concern is the welfare of the children, We owe that duty to all children brought into a divorce court, regardless of race, color, or creed. These unfortunate girls, through no fault of their own, are the victims of a mixed marriage and a broken home. They will have a much better opportunity to take their rightful place in society if they are brought up among their own people. [Ward v. Ward, 36 Wash.2d 143, 144-145, 216 P.2d 755, 756 (1950).]²³

Abhorring such views, many professionals by the mid-1950’s began to question the validity of statutes²⁴ and court decisions²⁵ barring cross-racial adoption, and many adoption agencies became willing to place black children in white homes.²⁶ Southern adoption agencies, however, were still unreceptive to the idea. One Georgia agency, for example, responded in 1954 to a Child Welfare League of America study by citing the state’s anti-miscegenation statute: “Our laws prohibit interracial marriage. A child reared in a home with parents of a different race will be apt to meet and want to marry a person of his or her parents’ background, not his own.”²⁷ Other agencies were concerned about — and deferred to — community prejudice against interracial adoption.²⁸

An intent to discourage interracial marriage is not a sustainable rationale for implementing the adoption statute. See Loving, supra. Nor is even a well-intentioned effort to protect a child against corn-munity prejudice a proper justification, in itself, for an adoption decision.²⁹ This is not to suggest that such concerns motivated the trial court here. The point, rather, is to illustrate that there is a very real risk of misuse — of discriminatory application — of a racial classification in an adoption proceeding. We would be naive simply to ignore that possibility based on the commonly shared hope that times have changed. Thus, where race is a factor for the trial court to consider, appellate review of judicial discretion under the statute must be as exacting as our scrutiny of the statute itself.

2. Judicial Review of Trial Court Discretion

Unlike other reported cases concerning statutes administered in racially discriminatory ways, see note 22 supra, we do not deal here with a demonstrable pattern and practice. How, then, does the appellate court review, for equal protection purposes, a single exercise of trial court discretion?

When we apply the abuse-of-discretion standard of review without regard to constitutional concerns, we check to be sure that the trial court has exercised its discretion within the range of permissible alternatives, based on all relevant factors and no improper factor. See Johnson v. United States, D.C.App., 398 A.2d 354, 365 (1979).³⁰ We then evaluate whether the decision is supported by “substantial” reasoning, id.,31 “drawn from a firm factual foundation” in the record. Id. at 364.³² We have noted, however, that the exigencies of trial sometimes do not permit much elaboration in support of a discretionary ruling. Id. at 365. Thus, depending on “the nature of the determination being made and the context within which it was rendered,” the appellate court, if necessary, “may examine the record and infer the reasoning upon which the trial court made its determination.” Id. at 366.³³

In this case, there can be no question that the trial court, in ruling on the petitions for adoption, acted within the proper scope of its discretion (“range of permissible alternatives”). Moreover, the court considered all the relevant factors prescribed by statute and no improper factor. Thus, the focus of our inquiry is limited to whether the court’s reasoning was sufficiently “substantial,” id. at 365, based on a “firm factual foundation” of record, id. at 364, to withstand strict scrutiny.

Because the trial court’s decision here was rendered comfortably after trial, not subject, for example, to presures during “the midst of trial,” id. at 365; see note 33 supra, the general justification for requiring us to “examine the record and infer the reasoning” the trial court used, id. at 366, is not present here. Even more importantly, because of the constitutional nature of the trial court’s decision — requiring application of race in a manner precisely tailored to the child’s best interest — there is no room for the appellate court to infer reasoning that the trial court may have intended but did not state. To do so would invite appellate court creation, and approval, of a racial analysis that may — or may not — have taken place. In the ordinary case, where the party challenging the trial court’s discretion has the burden of proving abuse, the risks from appellate court deference to the trial court are minimal, as long as the Johnson, supra, criteria are met. See notes 30-33 supra. But given our responsibility for strict scrutiny of an inherently suspect use of a racial classification, with the burden on the party who would sustain it, see note 14 supra, we must hold that party, and thus the trial court itself, accountable for affirmatively justifying the judgment in every material respect. See Feeney, supra, 442 U.S. at 272, 99 S.Ct. at 2292; Compos, supra at 266.

It follows that only through detailed, written findings and conclusions will the trial court be able to explain its thinking process with sufficient clarity to assure the data needed for effective review. See Johnson, supra at 364-65 (quoted supra at notes 31-32); cf. Moore v. Moore, D.C.App., 391 A.2d 762, 770 (1978) (detailed, written findings required in all custody cases); Utley v. Utley, D.C.App., 364 A.2d 1167, 1170 (1976) (same); O’Meara v. O’Meara, D.C.App., 355 A.2d 561, 562 (1976) (same). This ease accordingly must turn on whether the trial court’s written decision itself demonstrates that the court properly analyzed the racial issue, asked and answered the critical questions, and then precisely tailored its use of race to the best interest of this particular child.

I therefore turn, first, to the analytic steps and questions respecting race that the trial court should be expected to address. I then take up the trial court’s exercise of discretion — its findings and conclusions themselves.

3. Proper Analytic Steps and Relevant Questions As to Race

When race is relevant in an adoption contest, the court must make a three-step evaluation: (1) how each family’s race is likely to affect the child’s development of a sense of identity, including racial identity; (2) how the families compare in this regard; and (3) how significant the racial differences between the families are when all the factors relevant to adoption are considered together.

In taking the first step concerning identity,³⁴ the court must evaluate the probable effect of each family’s race and related attitudes on the child’s sense of belonging in the family and community,³⁵ the child’s self-esteem and confidence,³⁶ and the child’s ability to cope with problems outside the family.³⁷ Relevant questions bearing on one or more of these concerns, for example, would be: To what extent would the family expose the child to others of her own race through the immediate family? Through family friendships? Through the neighborhood? Through school? What other efforts will the family most likely make to foster the child’s sense of identity — including racial and cultural identify — and self-esteem? To what extent has the family associated itself with efforts to enhance respect for the child’s race and culture? To what extent has the family reflected any prejudice against the race of the child it proposes to adopt?

When the court takes the second step in the analysis — comparing the families — it hardly would be surprising if the answers to these questions favor prospective parents of the same race as the child.³⁸- But even when that is true, it is also possible that prospective parents of a different race may receive very positive ratings on these questions. If so, the third analytic step — how significant the racial differences are when all relevant factors are taken together — becomes especially important; for in that situation the racial factor may present such a close question that it will not have the significant, perhaps determinative, impact that it would if racial differences between parent and child simply were deemed a wholly negative factor.

4. The Trial Court’s Analysis: Findings and Conclusions

In the present case, the trial court obviously was conscientious and thorough, properly treating race as only one of several relevant considerations. After reviewing the other concerns specified by statute, the court took the first analytic step as to race, beginning with the proposition — for which there was testimonial support — that “race is a problem which ... should not be ignored or minimized.” The court carefully noted, however, that, “[ejonversely, there are not conclusive absolutes to be drawn on the basis of race.... The Court is concerned that little medical or scientific attention has been devoted to this problem.” But the Court then found that generally “as a child grows older the ramifications of this problem would increase,” and “severe questions of identity arising from the adoption and race most probably would evolve.” As a consequence, the court concluded that racial differences between parent and child should be weighed as a negative factor in evaluating adoption.³⁹ The court then announced its decision, preceded by a rhetorical question: “The Court does not conclude such a[n interracial] family could not sustain itself. Rather, the question is, is there not a better alternative?” The Court answered in the affirmative. I understand the court to have concluded that although the other factors, taken together, may have slightly favored the white foster family, or at least given it equal standing to adopt, the race factor tipped the decision in favor of adoption by D.’s black grandparents.⁴⁰

In examining the trial court’s decision, I note the following: First, the court conducted a three-day hearing during which it observed the demeanor of witnesses and assured a thorough presentation of evidence, including expert testimony on the general aspects of the racial issue (neither expert was familiar with the families seeking to adopt). Thus, presumably the court had before it each family’s best possible personal presentation on the racial issue, as well as the best possible case for each family based on expert views concerning the effects of race on adoption generally.

Second, the court expressly disclaimed that it could draw on “conclusive absolutes” as to race; it referred to “the total circumstances in this case,” while “applying all of the factors to be considered” (each of which the court discussed) “and evaluating the question in terms of past, present, and future.”⁴¹ In sum, the court specifically eschewed a dogmatic concentration on race, openly discussed all the relevant factors (age of child, stability of family, financial and other resources, love and affection, blood relationship, race), did not rely on an irrelevant factor, and manifested a thoughtful weighing process. See Johnson, supra at 365. The fact that race apparently tipped the decision in favor of appel-lees, see note 40 supra, does not, in itself, suggest a discriminatory result. See Drummond, supra at 1205.

Third, the court’s analysis, as far as it goes, is supported by testimony of record. See Johnson, supra at 364.⁴²

The trial court, therefore, obviously was careful and concerned and did not necessarily reach an impermissible result. Nonetheless, while correctly beginning with the first analytical step as to race focusing on growth of the child’s sense of identity, the court made no specific findings (reflecting the kinds of questions listed above) as to how race would be likely to affect this particular black child growing up, respectively, in the families of J.H. and J.H. and of E.M.G. and R.M.G. Furthermore, aside from reciting facts about the racial makeup of each family, the court did not articulate the comparative analysis required by steps two and three: how the families compare in their respective abilities to accommodate race, and how significant racial differences between the families are when all factors relevant to the adoption are considered together.⁴³

Because the race factor is determinative here, see note 40 supra, I conclude that the trial court’s analysis did not provide the reasoning and detail necessary to assure a reviewing court that the evaluation of race was precisely tailored to the best interest of the child. To repeat, for effective review when race is a critical factor, this court needs to understand exactly how the trial court made the judgment as to race that it did: whether as a precisely analyzed determination, based on carefully thought through comparisons of the parties drawn from record evidence, or as a more generalized conclusion that race always favors petitioners of the same race (here appellees) — a judgment reflecting an impermissible intellectual shortcut.

In a ease such as this, where there is every indication from the trial court’s analysis that, but for considerations of race, the decision might have been different, any determination as to race that is not precisely articulated on a comparative basis will fail to survive strict scrutiny. Given the trial court’s opinion, which could be read to say that appellants — the J.H. family — were slightly favored but for race, see note 40 supra, an articulation of how close the race question is will be necessary to assure this court that the result is constitutionally justifiable. Otherwise, the risk that race will be misused is too high, even when there is no reason to believe the trial court is intentionally discriminatory.

V. CONCLUSION

In summary, the statute, with its explicit recognition of race among the factors relevant to adoption, does not deny equal protection of the laws. However, the trial court, in granting the petition of R.M.G. and E.M.G. to adopt D., did not articulate its analysis of the race factor in sufficient detail to assure a reviewing court that the application of that factor, in conjunction with the other relevant considerations, was precisely tailored to the best interest of the child. Nor, of course, is this appellate court in a position to dictate any result here. Accordingly, we must reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

So ordered.

1 . At the adoption hearing in April 1979, Dr. Ganter testified that D. had “bloomed enormously” and was of “high average to above average intelligence.” The trial court concluded: “As a direct result of [the foster parents’] love, affection and special efforts, the child prospered to her present state of good health.”

2 . The foster mother also testified that, although her adopted son had “had an adjustment period in his life” at which time he was seen by a psychologist, his problem “was not with his color, but with his adoption. He was convinced that I had given birth to him. Now he knows he was adopted, and he’s progressing beautifully.”

3 . Under D.C.Code 1973, § 16-309(c), the trial court could not issue a final decree of adoption until the child had lived six months with her adopting parents. The statute permits the trial court to enter an interlocutory decree which, by its terms, will become final after six months unless the order is set aside for good cause shown during the interim period. Id., § 16— 309(d).

4 . The foster parents petitioned this court for a stay of the adoption order pending appeal. We denied the petition on August 21, 1979. They petitioned for rehearing en banc. On October 19, 1979, we issued a stay of the trial court’s order pending further order of this court while we considered the en banc petition. On August 11, 1980, we denied the petition for rehearing en banc but did not lift the stay of October 19, 1979. Counsel for the foster parents — perhaps anticipating an order dissolving the stay — filed a petition for a stay in the Supreme Court, which was denied on September 16, 1980. As of the date of oral argument — January 29, 1981 —counsel for both parties informed this court that D. remains with the foster parents.

5 .Interlocutory orders are appealable to this court only under certain specified conditions not applicable in this case. See D.C.Code 1973, § ll-721(a)(2). Nonetheless, although the trial court’s order properly was labeled as an “interlocutory order,” see id., § 16-309(c), (d); note 3 supra, we conclude the order was appealable as a final order, D.C.Code 1973, § 11-721(a)(1), under the doctrine of practical finality. See Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53, 85 S.Ct. 308, 310-311, 13 L.Ed.2d 199 (1964); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. (1949); Rachal v. Rachal, D.C.App., 412 A.2d 1202, 1204 (1980); Bearstop v. Bearstop, D.C.App., 377 A.2d 405, 407-08 (1977). But for the stay issued by this court, see note 3 supra, the order to remove D. from her foster home threatened irreparable harm to both D. and her foster parents. See Rachal, supra (order denying visitation rights to parent threatened both parent and child with irreparable harm). It would be contrary to the best interests of the child to allow her to settle into a new family for six months and only then, assuming no problem developed and the adoption decree became final, allow an appeal of the order taking the child away from her earlier environment. “The danger of denying justice by delay” in this situation clearly outweighs any concern against “the inconvenience and costs of piecemeal review” which might lead us to a contrary conclusion. Gillespie, supra 379 U.S. at 152-53, 85 S.Ct. at 310-311. Finally, because appellants filed this appeal within thirty days of the trial court’s denial of their “Motion for Amendment of And Additions To Findings Of Fact,” the appeal is timely. See D.C.App.R. 4 II(a)(1) and (2).

6 .D.C.Code 1973, § 16-305 provides:

A petition filed for the adoption of a person shall be under oath or affirmation of the petitioner and the titling thereof shall be substantially as follows: “Ex parte in the matter of the petition of - for adoption.” The petition or the exhibits annexed thereto shall contain the following information:

(1)the name, sex, date, and place of birth of the prospective adoptee, and the names, addresses, and residences of the natural parents, if known to the petitioner, except that in an adoption proceeding that is consented to by the Commissioner or a licensed child-placing agency, the names, addresses and residences of the natural parents may not be set forth;

(2) the name, address, age, business or employment of the petitioner, and the name of the employer, if any, of the petitioner;

(3) the relationship, if any, of the prospective adoptee to the petitioner;

(4) the race and religion of the prospective adoptee, or his natural parent or parents;

(5) the race and religion of the petitioner;

(6) the date that the prospective adoptee commenced residing with petitioner; and

(7) any change of name which may be desired.

When any of the above facts is unknown to the petitioner, the petitioner shall state this fact. When any of the above facts is known to the Commissioner, or a licensed child-placing agency that as a matter of social policy declines to disclose them to the petitioner, the facts may be disclosed to the court in an exhibit filed by the Commissioner or the agency with the court. If more than one petitioner joins in a petition, the requirements of this section apply to each.

Congress originally enacted the provision in 1954. See D.C.Code 1961, § 16-214 (Pub.L. No. 392, 68 Stat. 242, ch. 272 § 7 (1954)).

7 .D.C.Code 1978 Supp., § 16-308 provides:

Investigations when prospective adoptee is adult or petitioner is spouse of natural parent.

The court may dispense with the investigation, report, and interlocutory decree provided for by this chapter when:

(1) the prospective adoptee is an adult; or

(2) the petitioner is a spouse of the natural parent of the prospective adoptee and the natural parent consents to the adoption or joins in the petition for adoption.

In the circumstances specified in (2) above, the petition need not contain the information concerning race and religion specified by subparagraphs (4) and (5) of section 16-305.

8 . The court remanded with directions that the trial court grant the petition for adoption, id. at 101, 228 F.2d at 448, noting “that all the evidence relevant to the ‘best interests’ of the child firmly points in the direction of adoption .. ..” Id. at 101 n. 7, 228 F.2d at 448 n. 7.

9 . Cf. Pedersen v. Burton, 400 F.Supp. 960, 963 (D.D.C.1975) (three-judge court) (per curiam) (statute requiring marriage license applicants to identify their race is unconstitutional).

10 . We review the adoption statute, as applied here in terms of equal protection of the laws. I note that “[t]he Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states.” Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). As discussed in Bolling, however, Fifth Amendment due process contains an element of equal protection. Moreover, “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government” than required of the states by the equal protection clause of the Fourteenth Amendment. Id. at 500, 74 S.Ct. at 694. Accordingly, for purposes of this case, there is no material distinction between equal protection under the Fourteenth and the Fifth Amendments. See, e.g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975); Obregon v. United States, D.C.App., 423 A.2d 200, 202 n. 1 (1980), cert. denied, 452 U.S. 918, 101 S.Ct. 3054, 69 L.Ed.2d 422 (1981).

11 . Recently, the Supreme Court referred to the rational basis test as follows: “In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler v. Doe, - U.S. -, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982).

12 . Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) upheld a statutory requirement that 10% of the federal funds awarded for local public works projects be set aside for minority business enterprises. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) struck down a medical school admissions program reserving a percentage of seats in the entering class for minorities.

13 . In addition, the benign purpose, to survive intermediate scrutiny, may not “single[] out those least well represented in the political process to bear the brunt of a benign program.” Bakke, supra at 361, 98 S.Ct. at 2784 (Brennan, J., opinion); accord Fullilove, supra at 519, 100 S.Ct. at 2795 (Marshall, J., concurring).

14 . It is useful here to emphasize once again that, by inquiring whether a statutory racial classification is “necessary” to advance a “compelling” governmental interest, we are dealing with an inherently suspect, presumptively invalid classification; thus, the party who would sustain the classification has the burden of proving it survives strict scrutiny. This contrasts with a situation where an ostensibly race-neutral statute, or other state action, has a disproportionately adverse impact on a racial minority. Such a statute or action may be invidiously discriminatory or not, depending on its underlying purpose. In this situation, the party who would invalidate the statute has the burden of proving a discriminatory purpose. See Rogers v. Lodge, - U.S. -, 102 S.Ct. 3272, 3275-76, 73 L.Ed.2d 1012 (1982); Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 274, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979); Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976).

15 . See In re C.A.B., D.C.App., 384 A.2d 679 (1978); Mills v. Atlantic City Dep’t of Vital Statistics, 148 N.J.Super. 302, 372 A.2d 646 (1977). See generally A. Sorosky, A. Baran & R. Pannor, The Adoption Triangle (1979).

16 . J. Ladner, Mixed Families: Adopting Across Racial Boundaries 284 (1977).

17 . Id.; L. Grow & D. Shapiro, Transracial Adoption Today: Views of Adoptive Parents and Social Workers (1975); Silverman & Feigelman, Some Factors Affecting the Adoption of Minority Children, 58 Soc. Casework 554 (1977); R. Simon & H. Altstein, Transracial Adoption (1977).

18 . See, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (struck down Virginia antimiscegenation law); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880) (invalidated state law limiting jurors to white males).

19 . See, e.g., Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) (invalidated city charter requirement that majority of voters must approve any ordinance dealing with housing discrimination on the basis of race, religion, or ancestry); Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 (1964) (invalidated amendment to Louisiana election law requiring designation of each candidate’s race on nomination papers and ballots).

20 . See, e.g., Washington v. Seattle School District No. 1, - U.S. -, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982) (affirmed invalidation of statewide initiative intended to stop school board’s use of mandatory busing for purposes of racial integration); Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967) (struck down California constitutional provision forbidding state interference with unfettered discretion of every person to decline to sell or lease real property to any person); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (systematic exclusion of persons of Mexican descent from service as jury commissioners, grand jurors, and petit jurors); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (ordinance prohibiting construction of wooden laundries without a license; licensors denied licenses to all 200 Chinese applicants while granting them to 79 of 80 non-Chinese applicants).

21 . See, e.g., Seattle School District No. 1, supra; Hunter, supra; Reitman, supra; Anderson, supra.

22 . See, e.g., Hernandez, supra; Yick Wo, supra.

23 . Calling this language “unfortunate,” a Washington state court of appeals expressed its belief that the Supreme Court of Washington would overrule Ward if the issue again came before the court. Tucker v. Tucker, 14 Wash.App. 454, 455, 542 P.2d 789, 791 (1975).

24 . See, e.g., La.Rev.Stat. § 9:422 (1950); Tex. Rev.Civ.Stat.Ann. art. 46a § 8 (Vernon 1969) (repealed 1973). Both statutes were declared unconstitutional. See Compos v. McKeithin, 341 F.Supp. 264 (E.D.La.1972); In re Gomez, 424 S.W.2d 656 (Tex.Civ.App. 1967).

25 . Most reported court decisions in this area concern use of race in custody, not adoption, decisions. See generally Annot., 57 A.L.R.2d 678 (1958). Even the number of custody cases is sparse. Several commentators have suggested that, in the absence of statute or judicial decisions, the common law tradition was against mixing races in a family. See Grossman, A Child a Different Color: Race as a Factor in Adoption and Custody Proceedings, 17 Buffalo L.Rev. 303, 309-10 (1968); Note, [Adoption in Iowa ], 40 Iowa L.Rev. 228, 234-35 & n. 32 (1955); Note, Racial Matching and the Adoption Dilemma: Alternatives for the Hard to Place, 17 J.Fam.L. 333, 341 n. 43 (1978-79). Another reason why there may be few reported decisions before 1954 is that minority children may not have been placed through formal adoption systems. See generally J. Ladner, supra note 16.

26 . See generally Grossman, supra note 25 at 318-25; L. Grow & D. Shapiro, Black Children— White Parents: A Study of Transracial Adoption 103 (1975); J. Ladner, supra note 16 at 56-71.

27 . Grossman, supra note 25 at 323. I emphasize this response because opposition to cross-racial adoption — well beyond the 1950’s — has been part of a much broader history of segregation in this country, mandating separation of the races within the family. See generally D. Bell, Race, Racism & American Law 53-81 (2d ed. 1980); Grossman, supra note 25 at 303; Note, Custody Disputes Following the Dissolution of Interracial Marriages: Best Interests of the Child or Judicial Racism? 19 J. Fam. L. 97, 97-104 (1980-81). Most states have barred interracial marriage at some point in their history, see Applebaum, Miscegenation Statutes: A Constitutional and Social Problem, 53 Geo. L.J. 49, 50-51 & nn. 5-15 (1964) (identifying 41 states which at one time had miscegnation -laws; 19 still had them at the time the article was published). When, fifteen years ago, the Supreme Court declared miscegenation statutes unconstitutional in Loving, supra, 16 states still prohibited interracial marriage. Id. at 6 & n. 5, 87 S.Ct. at 1820 & n. 5.

28 .Grossman, supra note 25 at 324, reported the following comments:

Interracial adoption presents “more than ordinary risks and difficulties, so long as there remains so much prejudice.”

Acceptance by the community is “highly important.”

The adoptive couple must consider “ramifications, friends, relatives, church, neighbors, own children, community.”

We are strongly opposed because of “tradition, community unable to accept such placements generally, fear of repercussions.”

The placement of a colored child in a white home would lead to many complications, “especially” when he reaches adolescence.

29 . See In re Marriage of Kramer, 297 N.W.2d 359, 361-62 (Iowa 1980); Edel v. Edel, 97 Mich.App. 266, 293 N.W.2d 792, 795-96 (1980); Beazley v. Davis, 92 Nev. 81, 545 P.2d 206, 207 n. 2, 208 (1976) (per curiam); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); Commonwealth ex rel. Lucas v. Kreischer, 450 Pa. 352, 299 A.2d 243 (1973); Milligan v. Davison, 244 Pa.Super. 255, 367 A.2d 299, 302 n. 3 (1976).

30 . The appellate court “must determine whether the trial court’s action was within the range of permissible alternatives” based on “all relevant factors pertaining to the pending decision .... The court reviewing the decision for an abuse of discretion must determine ‘whether the decision maker failed to consider a relevant factor, whether he relied upon an improper factor, and whether the reasons given reasonably support the conclusion.’ ” Johnson, supra at 365 (citation omitted).

31 . “[T]he appellate court should inquire whether the trial court’s reasoning is substantial and supports the trial court’s action.” Id.

32 . “An informed choice among the alternatives requires that the trial court’s determination be based upon and drawn from a firm factual foundation. Just as a trial court’s action is an abuse of discretion if no valid reason is given or can be discerned for it, ... so also it is an abuse if the stated reasons do not rest upon a specific factual predicate.” Id. at 364 (citations omitted).

33 .We have stated the point in full as follows: Determinations committed to the trial court’s discretion do not submit themselves to a highly structured review for abuse of discretion as easily as do most administrative determinations. Administrative decisions typically are produced with such formality that the language of the decision provides a mechanism for evaluating it. The trial judge, ruling in the midst of trial, for example, is often confronted with situations that do not admit the amassing of a record and the enumeration of reasons upon which a structured review must depend. Consequently, in reviewing a trial court’s exercise of discretion, an appellate court should take cognizance of the nature of the determination being made and the context within which it was rendered. If needs be, it may examine the record and infer the reasoning upon which the trial court made its determination, see Berryman v. United States, [D.C.App., 378 A.2d 1317 (1977) ], even though to do so in review of an agency’s determination would constitute an unwarranted judicial usurpation of the administrative role. See, e.g., Greater Boston Television Corp. v. FCC, supra 143 U.S.App.D.C. [383] at 392-94, 444 F.2d [841] at 850-52. Nonetheless, both the trial judge and trial counsel should take pains to ensure that the record does reflect both the foundations and the reasoning behind the discretionary decision. [Id. at 365-66 (footnotes omitted).]

34 . See notes 15-17 supra & accompanying text.

35 . See In re Marriage of Mikelson, 299 N.W.2d 670, 673-74 (Iowa 1980) (comparing actions of two prospective, white adoptive parents in terms of contributions each had made toward helping black foster child develop sense of racial identity).

36 . See Greene v. Catholic Social Serv., 227 Pa. Super. 589, 590, 306 A.2d 919, 920 (1973) (white woman seeking custody of black girl considered her “different and of a lower moral fibre because she was black”).

37 . See J. Ladner, supra note 16 at 284. All black children, whether adopted or not, must be taught “survival skills” — that is, ways to cope with discrimination encountered in the world outside the family. To be capable of teaching survival skills, the family itself must be sturdy enough to stand up to any prejudice it may encounter. See In re Marriage of Mikelson, supra at 674; J. Ladner, supra at 215; Grossman, supra note 25 at 333-34. See also Chimezie, Transracial Adoption of Black Children, 20 Soc.Work 296 (1975); Note, Racial Matching and the Adoption Dilemma: Alternatives for the Hard to Place, 17 J.Fam.L. 333, 360-61 (1979); R. Simon & H. Altstein, supra note 17 at 89-107.

38 . Thus, contrary to our dissenting colleague’s understanding of our opinion, I do not disagree with the proposition that there can be “a preference for intraracial adoption that is supported by evidence.” Post at 805-806.

39 . The court was explicit in saying it would not rule out a cross-racial adoption if there were only the one petition at issue.

40 . I understand the trial court, in its analysis quoted in full in the text above, to have found the families equally stable and loving toward the child. The court further found the grandparents preferable with respect to blood relationship; the white foster parents were preferable as to financial resources. The court also found “it is predictable that another change in the life of this child [from the H_to the G— family] will cause some degree of injury or harm to her.” As to these factors taken together, therefore, the G.s’ claim apparently was somewhat less than, or at best equal to, that of the H.s’. The court thus turned to race as the apparently determinative factor.

I do not agree with our dissenting colleagues that “[t]he trial court found ... that all relevant factors, other than race, were in equipoise.” Post at 796 n. 1.

41 . When the court said it did not conclude the interracial family “could not sustain itself,” and added that “the question is, is there not a better alternative?”, this rhetorical question did not reflect a view that racial differences would be — automatically or presumptively — a negative factor in every case. Rather, in context, the court correctly noted that the critical question is not whether D. could prosper if adopted by her foster parents — a question that presumptively, and improperly, would have favored appellants — but instead: What family under all the circumstances presents the better alternative, given problems of identity affected by race?

42 .Also, no one has accused the court of harboring a discriminatory intent. Because we deal with an inherently suspect racial classification, however, the question of trial court intent is not directly at issue, as it would be if a facially neutral statute were involved. See note 14 supra. Thus, although direct evidence of discriminatory intent would be relevant to show that judicial application of the statute could not survive strict scrutiny, the absence of such evidence does not help establish that the trial court’s use of race was precisely tailored to the child’s best interest. In this respect, I disagree with the analysis in Drummond, supra at 1205.

43 . I have noted earlier that under the circumstances of this case, and especially because of its constitutional nature, there is no basis for us to “examine the record and infer the reasoning the trial court used.” Johnson, supra at 366. This conclusion is made stronger by pointing out that none of the expert witnesses made the kind of comparative analysis required here. Thus, there is no analysis of record which we could say the trial court adopted. We must rely exclusively on the trial court’s own analysis.