In Re: Adoption of Rashawn Kevon H.
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In Re: Adoption/Guardianship of Rashawn Kevon H. and Tyrese H., No. 7, September Term 2007. Opinion by Wilner, J. IN CASES INVOLVING THE TERMINATION OF PARENTAL RIGHTS, THE COURT MUST FOLLOW THE STATUTORY CONSTRUCT IN FL § 5-323 (IN THIS CASE FORMER § 5-313). TO TERMINATE PARENTAL RIGHTS, THE COURT MUST FIND ONE OF THE CIRCUMSTANCES SET FORTH IN THOSE SECTIONS AND THAT TERMINATION IS IN THE CHILD S BEST INTEREST. IN DECIDING WHAT IS IN THE CHILD S BEST INTEREST, THERE IS AN IMPLICIT PRESUMPTION THAT THE CHILD S BEST INTEREST LIES WITH A CONTINUATION OF THE PARENTAL RELATIONSHIP, A PRESUMPTION THAT MAY BE REBUTTED BY CLEAR AND CONVINCING EVIDENCE THAT THE PARENTS ARE UNFIT OR THAT EXCEPTIONAL CIRCUMSTANCES EXIST THAT WOULD MAKE A CONTINUATION OF THAT RELATIONSHIP DETRIMENTAL TO THE BEST INTEREST OF THE CHILD. THE STATUTORY FACTORS SET FORTH IN FL § 5-323 (AND FORMER § 5-313) MUST BE CONSIDERED AND APPROPRIATE FINDINGS MADE WITH RESPECT TO THEM IN DETERMINING WHETHER UNFITNESS OR EXCEPTIONAL CIRCUMSTANCES EXIST. IN THE COURT OF A PPEALS OF MARYLAND No. 7 September Term, 2007 _______________________________________ In Re: A doption/G uardiansh ip of: Rashawn H. and Tyrese H. _______________________________________ Bell, C.J. Raker Harrell Battaglia Greene Wiln er, A lan M . (Re tired , Spe cially Assigned), Cath ell, D ale R . (Re tired , Spe cially Assigned), JJ. _______________________________________ Opinion by Wilner, J. Bell, C.J., and Cathell, J., Concur. _______________________________________ Filed: December 11, 2007 Before us is a judgment of the Circuit Court for Frederick County that terminated the legal relationship between petitioner, Melissa F., and two of her four children, Rashawn and Tyrese, who were then six and five years of age, respectively. Upon evidence that the children had previously been found by the juvenile court to be children in need of assistance (C INA) an d after con sidering the v arious facto rs then set fo rth in Maryland Code, § 5-313 of the Family Law Article, the court concluded that termination was in the best interest of the children, essentially because Ms. F. had been, was then, and likely would continue to be unable to care properly for them. The Court of Special Appeals, in an unreported opinion, affirmed that judgment. We shall reverse and remand for a new proceeding. BACKGROUND Ms. F. suffers from the effects of several partially interrelated problems an overall IQ of 66, an oppressive childhood, eviction from and apparent disqualification for Gov ernm ent a ssisted housi ng becau se of her d rug- deal ing m othe r, life -long poverty, inability to maintain steady employment, and lack of a reliable support system. The combination of those impediments have made her life and the early lives of Rashawn and Tyrese terribly unstable. Ms. F. was raised in a household rife with domestic violence, with a father who physically and psychologically abused both her and her mother and a mother w ho becam e a drug ad dict and a d rug dealer. S he said that sh e was ess entially raised, at least in her early years, by her maternal grandmother, who unfortunately died when Ms. F . was ten . After her m other s seco nd arrest, M s. F. droppe d out of sc hool, in the ele venth grade, and mov ed first to Harrisburg to live w ith a step-brother and then, after a year, back to Frederick to live with a cousin. She had her first child, Mark, in February, 1997, when she was seventeen. The child s father was an alcoholic and abusive, so she ended that relationship and began one with another man, Richard, with whom she had three more children in fairly quick succ ession Richard, Jr., born in Jun e, 1998, Rashaw n, born in Nove mber, 199 9, and Tyrese , born in N ovembe r, 2000. Ric hard, Jr. has live d with his paternal gra ndparen ts in Delaw are since inf ancy. In 1999 , the remaind er of the fa mily moved to an apartment apparently shared with Ms. F. s mother. In December, 2001, they were evic ted becau se the moth er was sellin g drugs fro m the apa rtment. In the three years following that eviction, which occurred when Rashawn and Tyrese were two and one, respectively, Ms. F., Mark, Rashawn, and Tyrese moved approximately eleven times. She and Richard were sometimes together and sometimes apart. The family spent a week in a hotel paid for by the Frederick County Department of Social Serv ices (DSS ), then in a she lter until Ma y, 2002, and th en briefly at a C ommu nity -2- Action C enter. They the n moved to an apartm ent in Harris burg, wh ich they shared with ten other pe ople and w here they surv ived on pe anut butter sa ndwich es and w ater, then to different shelters in Harrisburg. T hey finally returned to Frederick to live with M s. F. s mother, but the day after they arrived, the mother was incarcerated, so they moved to New York, w here they stayed in various she lters and fina lly ended up in a roach an d ratinfested ap artment, w here she an d Richard had to take turns staying aw ake at nigh t to guard t he child ren fro m the n oxious anima ls. In August, 2003, Ms. F. returned to Frederick to try to find work, leaving the children with her sister in New York. At some point in 2004, her sister brought the children back to Frederick, where the family found a temporary place to stay with a friend of Richard. In May, however, Richard was incarcerated, and Ms. F. and the children were forced to move. They had no place to go. On either May 19 or 20, 2004, Ms. F. took the children to the local DSS office.1 Dorne Hill, a social worker, was called to the lobby of the building upon a report that a woman was there with three children, cursing at them a nd grab bing th eir arms . When she w ent to inv estigate , Ms. H ill found Ms. F ., along with Mark, Rashawn, and Tyrese, sitting on a bench. The children were unruly but unharm ed, and M s. F. was up set. She exp lained that sh e was w aiting for a f amily member, Mark s aunt, to come get her and her children. The aunt was contacted, but she was willing to take only Mark. Mark s father was located, and he eventually came and 1 There is some discrep ancy in th e record as to the exact d ate. -3- picked up his son but not Ms. F. or the other children. When it appeared that there was no place for Rashawn and Tyrese to go, Ms. F. and M s. Hill agreed that the only altern ative was f or DSS to place the tw o children in emergency shelter care. Richard, who by then had married another woman, later agreed to that di spositio n as w ell. Afte r a heari ng two days later, th e shelter care w as cont inued. The court found that it was not possible to return the children to their home because of the father s incarceration and Ms. F. s lack of a residence. There was no home to which they could return. On June 16, 2004, based, in part, on the lack of a permanent residence for the children , and on the agreeme nt of the pa rties, the childre n were f ound by the ju venile court to be C INA. A mong o ther things, the court order ed psychiatric, ps ychological, substance abuse, and parenting p otential evalu ations, that M s. F. enter into a nd comp ly with a serv ice agreem ent, that she m aintain steady an d reliable em ployment an d adequa te and appropriate housing, and that she participate in the DORS program.2 No appeal was taken from that disposition, so the validity of it is not before us. DSS, fo r its purposes , found ins ufficient ev idence to sh ow an indicated c hild neglect on Ms. F. s part, in that, although she had been unable to secure resources for her children, she had attempted to do so and was willing to g[i]ve up her children because 2 The DORS program is mentioned frequently in the record. It refers to the Division of Rehabilitation Services, a unit within the State Department of Education. The Division h as a vocatio nal rehabilitatio n program that provide s career asse ssment, vocatio nal train ing, assis tive tech nologi es, and j ob plac emen t service s. See the Division s web site at www.dors.state.md.us. -4- she could not provide instead of allowing her children to be homeless and hungry. On the other hand, DSS declared that it could not rule out neglect, in that Ms. F. had been homeless and transient for several years. It therefore declared child neglect to be unsubstantiated, the only other category possible under the circumstances. Upon assuming custody of the children and in preparation for the CINA hearing, DSS so ught an ev aluation fro m Dr. D ennis Hilk er, a psycholog ist, who rep orted, in relevant part, that, although Ms. F. had an emotional attachment to her children and wanted to be a productive mother, she showed little parenting ability, had no job skills, and would require a great deal of assistance and supervision to meet the needs of her children. He found that both parents were cognitively challenged, that they had not developed any consistent, reliable employment base, and would need a long time to build their educational and vocational capacity for self-support, before proposing any possible home for the children to return to their custody. At the time of the eva luation som e three we eks after sh e took the c hildren to DSS Ms. F. was still homeless, was on a waiting list for an apartment, had no income, and wanders the streets when she cannot stay with anyone. Dr. Hilker said that she had some good parenting potential but that she needed to develop some self-controls, personal life goals, and long term lifestyle accommodations. He recommended that she receive supervised visitation privileges with the children, that she be referred to the Division of Rehabilitative Services for vocational training and work assistance, and that -5- the parents m eet with D SS to co nsider a lon g term cus tody and visitatio n arrangem ent to guaran tee the sa fety and w elfare o f the ch ildren . . . . In his report o n Richard , Dr. Hilker c oncluded that Richar d show s questiona ble parenting ability and limited intelligence, perhaps because of intensive drug abuse earlier in his life. He added that Richard was unlikely to succeed in parenting without special s ervices to mee t his diff iculties. The social worker initially assigned to the case, Brenda Boone, stated that Tyrese remained in the foster home during the four months that she supervised the case but that Rashawn had to be moved five times during that period because of his behavior, which she described as out of control. Ultimately, he was placed in a therapeutic foster home, where the caretakers were specially trained to care for children with behavioral or emotional problems. Ms. F. told Ms. Boone that she was living with her mother and her mothe r s boyfrie nd, altho ugh sh e gave the soc ial wor ker an a unt s tele phone numb er. Ms. F. eventually found employment at Wal-Mart and she did participate in most of the programs as directed in the CINA disposition order and in one or more service agreements w ith DSS. Repo rts prepared for the first court review hearing in Decem ber, 2004, b y Heathe r Chor ney, the n ew so cial wo rker ass igned to the case , were p ositive. Ms. Chorne y confirmed that Ms. F . had, on the whole, co mplied with the cou rt s directives and that supervised visitation had occurred. Her overall impression was that [p]rogress has been made; however, the risk and safety factors that lead to the children -6- being brought into care have yet to be eliminated. She recommended that the children remain CINA and in foster care but that the permanency plan for the children be reunification with Ms. F., and that is what occurred. The next review hearing was in April, 2005. Again, Ms. Chorney s report was positive. Ms. F. continued to comply with most of the court s directives and maintained her employment with Wal-Mart. Rashawn s behavior and emotional well-being had improved. Ms. Chorney still believed, however, that the factors that led to the children being placed in foster care had yet to be eliminated. She continued her recommendation that the children remain in foster care and that the permanency plan be for reunification with M s. F. The reports prepared for the hearing in August, 2005, were less favorable. Ms. Chorney noted that [t]here has been little progress toward reunification since the last Court hea ring. Rash awn s situa tion had b een regres sing, in that h e has attach ed to his foster parents and has a great deal of anxiety about the status of reunification. Tyrese, on the other hand, was doing very well and there are no concerns at this time. Unfortunately, Ms. F. lost her job at Wal-Mart in April. She found part-time employment at Goodwill Industries but worked there only for a month or so. The principal problem seemed to be that, despite the assistance of a parent aide from DSS, Ms. F. remained unsuccessful in finding adequate housing for herself and the children. She had been denied public housing because of the past eviction, and the prospect of living with her -7- sister was rejected because the sister (1) had a substance abuse history, and (2) did not have housing for the children. Although Ms. Chorney recommended that the permanency plan still be for reunification, she expressed concern about the length of time the children had been in foster care and the permanency issues, and she noted that DSS may recom mend a chan ge of p erman ency plan at the ne xt hearin g if pro gress is n ot adeq uate. That is wh at, in fact, occu rred at the ne xt review h earing in N ovembe r, 2005. Bo th children had adjusted well to their foster care placements. Tyrese was in a potential preadoptive placement. Rashawn had become very attached to his foster care parents and displays a great amount of anxiety about reunification. The children had been in out of home pla cement f or eighteen consecu tive month s. Althoug h Ms. F. c ontinued to comply with the court orders and greatly struggled to maintain overall stability in her own life, Ms. Chorne y stated that Ms. F. s progress towa rd reunification and the ch ildren s permanency remains a concern. Ms. F. had lost her part-time job with Goodwill Industries in July, but in October found one with a Holiday Inn. Her employment situation remained sporadic, and housing continu ed to be a majo r issue. In Octob er, Ms . F. was evicted for no n-paym ent of re nt. DSS assigned a parent aide to assist her in finding a suitable home, but they had no success. The problem was that, because of her eviction due to her mother s drug-dealing, she was u nable to ob tain public h ousing an d had insu fficient inco me to aff ord adeq uate non-assisted living. She eventually found a one-room apartment but had to share a -8- communal bathroom with everyone else on the floor, and DSS did not view that arrangement as adequate for a woman with two children.3 Continuing to believe that the risk factors that caused the children to be placed in foster care had not been alleviated, even after eighteen m onths, DS S recom mended that the perm anency plan be chang ed to adoption with a concurrent plan of reunification with Ms. F.4 Ms. Chorney expressed concern that it was a struggle for the parents to maintain their own everyday living without the burden of dealing with R ashawn s com plex problems. She said, however, that DSS would continue to work with Ms. F. toward reunification. In her repo rt, Ms. Ch orney recoun ted the effo rts DSS h ad made to assist in achieving reunification and listed what she regarded as the compelling reasons for the change: (1) The children had been in care for 18 consecutive months; (2) Becau se of the ch ildren s ages , there was a need to e stablish stability and permanency as soon as possible; (3) Risk and safety factors had not been alleviated by the parents; (4) Reunification services have been exhausted ; (5) The parents progress is such that reunification was not likely in the next 3 Althoug h Ms. F. h ighlights that v iew as w holly inapprop riate, it was no t the basis of the TPR judgments and was not even mentioned by the court. Indeed, Ms. F. was no longer living in that room at the time of trial. At the time, a parent aide was assisting Ms. F. in attempting to find more suitable housing for the children. 4 By this time, the f ather was more or les s out of the p icture. That is n ot an issue in this appeal. -9- six months; (6) The children were unable to reside with Ms. F. due to the lack of appropriate housing, financial instability, mental health needs of the child[ren], substance abuse [by the father], and a history of the parent s overall instability; and (7) There were no identifiable, appropriate, or willing relatives to provide long term care. On Nov ember 17, 2005 , the juvenile court concurred in that recommend ation. It ordered that the permanency plan for the children be adoption with a concurrent plan of reunification with the mother, and, notwithstanding that purported concurrence, directed DSS to file a petition to terminate parental rights (TPR) within 30 days.5 DSS filed the TPR petition in D ecember, 2005; trial occu rred in May, 2006, and , on May 23, the court granted the petition and entered judgments terminating the parental rights of Ms. F. and 5 In In re Karl H., 394 Md. 402, 422, 906 A.2d 898, 909 (2006), we pointed out permanency plans w hich call, concurrently, for both reunification an d adoption are intrinsically incons istent, that they give DSS n o real guida nce, and th at they can lead to arbitrary decision-making on the part of DSS. We concluded: If the court approves a permanency plan that calls for reunification or family placement, that should be the paramount goal. It should not share the spotlight with a completely inconsistent court-approved goal of terminating parental rights, especially when the inconsistent plan calls for a TPR petition to be filed before the next sch eduled court review of the permanency plan. The objective of contingency plannin g can b e achie ved w ithout a J anus-typ e order . Karl H . was not filed until September, 2006, so the juvenile court here did not have the advantage of our views on what was then a common practice by DSS. The anomaly of having the order both continue reunification as a goal and direct the filing of a TPR petition w ithin 30 days is evident on its face, how ever. -10- the father in Rashawn and Tyrese and appointing the Director of DSS as the guardian of the children with the righ t to consent to their adoptio n. In Febru ary, 2006, prior to trial, Ms. F. left h er one-roo m apartm ent in Frede rick, which she was a pparently sharin g with her mother, and her job with Holiday Inn and went to Virginia to look for work and housing. U nsuccessf ul, she returne d and beg an living ag ain with he r mother a m onth later. The statuto ry standards go verning the termination of Ms. F . s parental righ ts in this case are tho se that previo usly were set f orth in M aryland Cod e, § 5-313 o f the Fam ily Law Article (FL ).6 Section 5-313 was an exception to the general rule that an individual may not be adopted without the consent of his or her natural parents. It permitted a circuit court to g rant a decre e of adop tion or guar dianship w ith the right to co nsent to adoption, without the consent of the natural parents, if the court found by clear and convicting evidence that (A) it was in the best interest of the child to terminate the natural parents rights as to the child, and (B) one of the following three circumstances or set of circumstances existed: 6 In its 2005 Session, the General Assembly enacted 2005 Md. Laws, ch. 464, the Permanency for Families and Children Act of 2005, which substantively revised the laws relating to gu ardianship s and the term ination of p arental rights. T he standard s previously set forth in FL § 5-313, as revised, are now found in FL § 5-323. Although the Act took effect January 1, 2006, prior to the trial and judgment in this case, Section 4 of the Act provides that the Act did not apply to any case pending on January 1, 2006, and that such cases shall be governed by the law applicable as if this Act had not become effective. As DSS s petition was filed in December, 2005, and therefore was pending on January 1, 2006, the case is governed by the provisions in the former § 5-313. -11- (1) The ch ild was ab andoned ; i.e., the identity of the child s natural parents was unknown and no one had claimed to be the child s natural parent within two months after the alleged abandon ment; (2) In a prior juvenile court proceeding, the child was adjudicated to be CINA; or (3) The fo llowing fo ur circums tances exist: (i) The child has been continuou sly out of the cu stody of the na tural parent and in the custody of a child placement agency for at least a year; (ii) The conditions that led to the separation from the natural parent or similar con ditions of a p otentially harmf ul nature still exis t; (iii) There is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the immediate future; and (iv) A con tinuation of the parenta l relationship w ould greatly diminish the child s prospects for early integration into a stable an d perm anent f amily. Unles s the co urt find s an aba ndonm ent, i.e., if it is proceeding under (2) or (3) above, it must, in determining whether termination is in the best interest of the child, give primary cons ideration to th e safety and h ealth of the c hild and giv e considera tion as we ll to the other factors that were e numerated in FL § 5-313(c). 7 If the child had been 7 Those factors, as we paraphrase them, were: (i) the timeliness , nature, and e xtent of the services of fered by D SS to facilitate reun ion of the c hild with the parent; -12- declared CINA, the court, in determining whether termination is in the best interest of the child, was required to consider as well the additional factors that were set forth in § 5313(d). 8 The evidence presented at the TPR hearing was largely that noted above, although it was supplemented with some additional details. The social workers who prepared the various reports testified, as did Ms. F. and Dr. Carlton Munson, a social worker who prepared an attachment assessment report based on an evaluation of Rashawn and (ii) any social service agreement between the parent and DSS and the extent to which th e parties fulf illed their obliga tions unde r the agreem ent; (iii) the child s feelings toward and emotional ties with the parents, siblings, and others who m ay significantly aff ect the child s best interest; (iv) the ch ild s adju stme nt to hom e, sch ool, a nd comm unity; (v) the result of the effort the parent has made to adjust his or her circumstances, conduct, or conditions to make it in the child s best interest to be returned to the parent; and (vi) all ser vices o ffered to the pa rent bef ore plac emen t of the c hild. 8 The considerations set forth in FL § 5-313(d) are, as we paraphrase them: (i) whether the parent h as a disability that ren ders him o r her consiste ntly unable to c are for the im mediate an d ongoin g physical or p sychological n eeds of the child for long periods of time; (ii) whether the parent has committed acts of abuse or neglect toward any child in the fam ily; (iii) the parent has repeatedly failed to give the child adequate food, clothing, she lter, education , or other care or control n ecessary for th e child s ph ysical, mental, or emotional health, even though the parent is physically and financially able; (iv) the child was born exposed to certain drugs or the mother tested positive for those drugs upon admission to a hospital for delivery of the child; (v) the parent subjected the child to torture, chronic abuse, sexual abuse, or chronic and life-threatening neglect, or was convicted of certain crimes of violence committed against a ch ild or household me mber. -13- Tyrese conducted shortly before the hearing. Dr. Munson was aware that Rashawn was facing a ch ange of p lacement b ecause of aggressiv e and sex ualized beh aviors. W ith that knowledge and upon his own observation of the children s interaction with each other, he concluded that a joint placement would not be in the best interest, well-being, safety, or health of either child. He explained in his report that Rashawn s history of sexualized behaviors make it highly likely [that] sexual behaviors would be acted out on Tyrese if these siblings were in the same placement and that Tyrese would be at physical and psychological risk. Ms. Chorney commented that, except for a brief period, visitation with the children was supervised because of the unstable relationship between Ms. F. and Richard and Ms. F. s unwillingness to agree to separate visitation Ms. F. confirmed the several attempts she had made to find assisted housing. She was told that she was ineligible for county-assisted housing but eligible for Federal Section 8 a ssistance. Th e problem was that the re were n o apartme nts available. S he said that if she could live with her mother, they could pool their resources and afford a larger apartment that could accommodate the children and that her mother could watch the children w hen she w as at work . Because of her mo ther s drug h istory, howev er, DSS d id not regard the mother as an acceptable resource. The court noted the undisputed fact that Rashawn and Tyrese had been found to be CINA, and it therefore proceeded to consider the factors set forth in FL § 5-313(c) and (d) in determ ining w hether it was in their bes t interest to termina te Ms. F . s paren tal rights. -14- Relying in part on Dr. Munson s report and testimony, it found, first, that the children had health and safety needs th at would b e better add ressed throu gh services that DSS could provide if granted gu ardianship. Turning to the re maining factors in § 5-3 13(c), the court found th at DSS h ad made abunda nt efforts to provide M s. F. with serv ices, and tha t, although DSS fulfilled its obligations under the service ag reements, it just wasn t working. Despite her effort, but due to her disabilities and limitations, Ms. F. just wasn t able to comply with all of those . . . services to facilitate reunification that the Department provided her. The court stated that, because of the children s age and because they had been out of the home for so long nearly two years it was not sure that they had much attachm ent left to Ms. F. or to each o ther. The court found the children s adjustment to their foster homes troubling, but improving. The court complimented Ms. F. on her effort to adjust her circumstances and maintain contact with the children but made no clear finding as to the adequacy of her adjustmen t or contact. T he implicatio n is that the co urt found the adjustm ent inadeq uate to provide a safe and healthy environment for the children, but its actual statement is less than clear on that point. It did find that Ms. F. lacked the financial resources to provide for the children s financial and material needs. It said that Ms. F. had done a pretty good job of m aintaining co ntact with D SS, but that it w as not suff icient to guara ntee the saf ety and health of the children. The court did not explain the connection between any lack of contact with DSS and the safety and health of the children. Finally, as to the § 5-313(c) -15- factors, the court found tha t no further services could b e provided that wo uld help return the children to Ms. F. Turning then to the § 5-313(d) factors, the court concluded that Ms. F. did have a disability that limited h er ability to care fo r the children , and that, due to that disability and her circumstances, she did neglect the children. The neglect was not intentional, but it was a fac t. The cour t found n one of the other § 5-3 13(d) facto rs applicable . Upon its consideration of all of the statutory factors, the court found by clear and convicting evidence that it was in th e best interest o f the children to grant the D SS petition, a nd, in accordance with that finding, it entered the two judgments, one for Rashawn and one for Tyrese. In the Court of Sp ecial Appeals, M s. F. attacked some of the Circuit Court s findings with respect to the various factors, contending that they were either unsupported by more specific factual determinations or otherwise clearly erroneous. After reviewing the record, the appellate court held that there was amp le support for the trial court s findings. T he thrust of Ms. F. s arg ument w as that DS S had no t provided a dequate services tailored to Ms. F. s needs and that Ms. F. lost custody of the children in the CINA proceeding and lost her parental rights in the TPR case because she was home less, . . . her disability preve nted her fro m curing th at condition , and the D epartmen t failed to tailor its services to remove those barriers to reunification. She made no attack on the statute itself. The Court of Special Appeals disagreed, concluding that throughout the -16- two years that Rashawn and Tyrese were in foster care before the TPR hearing, Ms. F. was provided with ample services aimed at reunification and that she had not identified in the record any other available programs that were specifically tailored to her needs as a person with cognitive disabilities. Although still complaining that DSS failed to provide adequate services to her and that some o f the Circu it Court s co nclusions w ere wron g, Ms. F. h as substantia lly broadened her argument in this Court. She now attacks the structure and validity of the statute itself, tacitly at least contending that, by focusing on the best interest of the child, the statute is unconstitutional. In that regard, she argues first that a court may not terminate the parental righ ts of a paren t absent a sh owing th at the paren t is presently unfit or proof of other exceptional circumstances. She adds that parental rights may not be termina ted wher e the basis f or the CIN A findin g, and the p rimary obstacle to reunification, is lack of permanent suitable housing, thereby implying that the lack of suitable housing, even over a four or five year period, cannot be regarded as either evidence of unfitness or an exceptional circumstance. DISCUSSION The Ap propriate Stan dards for Te rminating Pa rental Rights In se ekin g to d isma ntle t he statuto ry con struc t ena cted by the Gen eral A ssem bly, Ms. F. borrow s in part from cases invo lving custody disputes betwe en a parent and a third -17- party and in part from out-of-S tate TPR cases that are m ostly inapposite. We shall turn first to the custody cases and consider their relevance to the issue at hand. The great majority of custody (and visitation) disputes, of course, are between the child s paren ts, neither of w hom, at leas t since the ad option of o ur State Eq ual Rights Ame ndme nt (Md . Decl. o f Rts., A rt. 46), ha s any pref erence over th e other in that rega rd. In that setting, the governing standard, here and throughout the country, is and long has been th e child s best inte rest. See Mc Dermo tt v. Dough erty, 385 Md. 320, 353-55, 869 A.2d 751, 770-71 (2005). Custody and visitation decisions in disputes between the parents are made based on what the court finds to be in the child s best interest. That decision generally lies within the sound discretion of the trial judge and is rarely disturbed on app eal. See Domingues v. Johnson, 323 M d. 486, 4 92, n.2, 5 93 A.2 d 1133 , 1136, n .2 (1991). A different element, though not a different standard, comes into play when the dispute is between a parent and a third party, for in that setting, there is a legal p referen ce. In those c ases , we have rec ognized that p aren ts have a f undame ntal, Con stitutionallybased right to raise their children free from undue and unwarranted interference on the part of t he State , includin g its cou rts. See, most re cently, Koshko v. Haining, 398 Md. 404, 921 A.2d 17 1 (2007); also McD ermott v. D ougherty , supra, 385 Md. 320, 869 A.2d 751; Shurupo ff v. Vockroth , 372 M d. 639, 814 A.2d 54 3 (2003); Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977). Even in those cases, however, we have not discarded the -18- best interest of the child standard, but rather have harmonized it with that fundamental right. We have created that harmony by recognizing a substantive presumption a presumption of law and fact that it is in the best interest of children to re main in the care and custody of their parents. The parental right is not absolute, however. The presump tion that prote cts it may be reb utted upon a showin g either that the parent is unfit or that exceptional circumstances exist which would make continued custody with the parent detrimental to the best interest of the child. In McD ermott, the Court made clear that, in a parent-third party custody dispute, the initial focus must be on whether the parent is unfit or such exceptional circumstances exist, for, if one or the other is not shown, the presu mption applies and the re is no need to inquire fu rther as to where the best interest of the child lies. In Koshko, we extended that ap proach to parent-third party visitation disp utes as we ll. Custody and visitation disputes, even between a parent and a third party, are on a different plane than TPR proceedings. As we pointed out in Shurupo ff, [w]e regard TPR proceedings as unique different in kind and not just in degree. Shurupo ff, 372 Md. at 657, 814 A.2d at 554. That, we said, is true for two reasons. First, a TPR judgment does not just alloca te access to a child but co nstitutes a total res cission of th e legal relation ship between parent and child, and that rescission is generally final. Unlike custody or visitation orders, it is not subject to reconsideration merely upon a showing of changed -19- circumstan ces on the p arent s part. Se cond, in cu stody and visitatio n cases the S tate is essentially neutral, providing only a judicial forum for resolution of the dispute between two private parties. In TPR cases, the State is a moving party, acting in its capacity as parens patriae. It is seeking to te rminate the e xisting paren tal relationship a nd transfe r to itself, hopefu lly for re-transfer to an adoptiv e family, the pa rental rights tha t emanate from that relationship. Nonetheless, our case law has been clear and consistent, that, even in contested adoption a nd TPR cases (and in perman ency plan pro ceedings th at may inevitab ly lead to a TPR case), where the fundamental right of parents to raise their children stands in the starkest contrast to the State s effort to protect those children from unacceptable neglect or abuse, the best interest of the child remains the ultimate governing standard.9 Most 9 See Wash. Co. Dep t Soc. Serv. v. Clark, 296 Md. 190, 198, 461 A.2d 1077, 1081 (1983), (citing cases dating back to 19 58 for the p rinciple that w hen the Sta te seeks to terminate parental rights without the consent of the parents, the matter should be determined on the b asis of what is in the best interests of the child ); In re Adoption No. 10941, 335 Md. 99, 113, 642 A.2d 201, 208 (1994) ( We have made clear, however, that the controllin g factor in a doption an d custody cas es is not the n atural paren t s interest in raising the ch ild, but rather w hat best serv es the interest o f the child ); In re Adoption/Guardianship No. 3598, 347 Md. 295, 301, 701 A.2d 110, 113 (1997) ( [T]he best interest of the child stan dard con tinues to be th e uncom promising standard in all adoption proceedings . . . . ). Although those cases were decided before Troxel v. Granville , 530 U.S . 57, 120 S . Ct. 2054, 1 47 L. Ed .2d 49 (20 00), we h ave contin ued to view th e best in terest of the child as a par amou nt cons ideratio n. See In re Mark M., 365 Md. 687, 705-06, 782 A.2d 332, 342-43 (2 001); In re Yve S, 373 Md. 551, 570-71, 819 A.2d 10 30, 1041 -42 (2003 ); In re Billy W., 386 Md. 675, 684, 874 A.2d 423, 429 (2005) ( the best inte rests of the ch ild may take pre cedence over the pa rent s liberty interest in the course of a custod y, visitation, or adoption dispute ). -20- recently, in In re Karl H., 394 Md. 402, 416, 906 A.2d 898, 906 (2006), involving an attack on a change in a permanency plan from reunification to reunification and adoption, we noted: A State s role in a child s care and protection should take on utmos t import ance, w hile a pa rent s rig ht may no t be abs olute. A parent s rights may be diminished, [ w]hen there is a conflict between the rights of the parents or legal guardian and those of the child, the child s best interest shall take preced ence. C OM AR 0 7.02.11 .07(A ). All of those cases recognize and give full appropriate weight to the fundamental right of the parents, as indeed they must, but they all recognize as well that the right of the parents is not absolute and that it must be balanced against the fundamental right and responsibility of the State to protect children, who cannot protect themselves, from abuse and neglect. The point was well made in In re Mark M., supra, 365 Md. at 705-06, 782 A.2d at 343, and confirmed in In re Yve S., supra, 373 Md. at 570, 819 A.2d at 1041: That fundamental interest, however, is not absolute and does not exclude other important considerations. Pursuant to the doctrine of parens patriae, the State of Maryland has an interest in caring for those, such as m inors, who canno t care for themselves. We have held that the best interests of the child may take preceden ce over the parent s liberty inter est in the cou rse of a custod y, visitation , or adop tion disp ute. . . . . As we stated in In re Adoption/Guardianship No. A91-71A, 334 Md. 53 8, 640 A.2d 10 85 (1994), the child s w elfare is a consideration that is of transcendent importance when the child m ight oth erwise be in jeo pardy. In light of that well-established case law, it is not surprising that the General Assembly, in enacting former FL § 5-313 and current FL § 5-323, has maintained the best -21- interest of the child standard as the overriding statutory criterion in TPR cases. There are, howev er, three critical ele ments in the balance tha t serve to give heightene d protection to parental rights in the TPR context. First and foremost, is the implicit substantive presumption that the interest of the child is best served by maintaining the parental relationship, a presump tion that may be rebutted on ly by a showing that the paren t is either unfit or that exceptional circumstances exist that would make the continued relationship detrimental to the child s best interest. That presumption, which emanates from parent-third party custody disputes, is not expressly articulated in the statute and, for that reason, is u sually not men tioned wh en discussin g the variou s statutory factors , but it may be necessary as a Constitutional matter and, even if not, it is implicit from the statutory scheme. The notions of unfitness and exceptional circumstances have a different connotation in TPR cases than they do in custody and visitation disputes, however. In a custody case, unfitness means an unfitness to have custody of the child, not an unfitne ss to remain the child s pa rent; excep tional circum stances are th ose that w ould make pa rental custody detrime ntal to th e best in terest of the child . The deficiencies that may properly lead to a finding of unfitness or exceptional circum stances in a cus tody case will no t necess arily suffi ce to jus tify a TPR judgm ent. For one thing, those de ficiencies may be tempora ry and correctable sufficiently severe to warrant denying custody or visitation at a particular point in time, but with the understanding that the custody or visitation decision is subject to reconsideration upon a -22- showing of changed circumstances. As noted, however, a judgment terminating parental rights, once enrolled, is not subject to discretionary reconsideration based merely on the parent s chang ed circu mstanc es. See, however, FL §§ 5-326 and 5-327, permitting modification or rescission of a guardianship order under certain limited circumstances. To justify a TPR judgment, therefore, the focus must be on the continued parental relationship, not custody. The facts must demonstrate an unfitness to have a continued parental relationship with the child, or exceptional circumstances that would make a continued parental relationship d etrimental to the best interest of the child. Th e terms are the same, b ut their mean ing and w hat must be shown are quite diff erent. The second element that serves to protect the parental relationship is that, in a TPR case, the kind of unfitness or exceptional circumstances necessary to rebut the substantive presumption mu st be established by clear and con vincing evidence, no t by the mere preponderance standard that applies in custody cases. The State must overcome a much higher substantive burden by a higher standard of proof. Third, and of critical significance, the Legislature has carefully circumscribed the near-bou ndless discre tion that cou rts have in o rdinary custod y cases to determ ine what is in the child s b est interest. It has se t forth criteria to g uide and lim it the court in determining the child s best interest the factors formerly enumerated in FL § 5-313(c) and (d) an d now s tated in FL § 5-323. T hose facto rs, though c ouched a s considera tions in determining whether termination is in the child s best interest, serve also as criteria for -23- determining the kinds of exceptional circumstances that would suffice to rebut the presumption favoring a continued parental relationship and justify termination of that relation ship. We agree with Ms. F. that poverty, of itself, can never justify the termination of parental rights. The fundamental right of parents to raise their children is in no way dependent on their affluence and therefore is not diminished by their lack thereof. Nor will homelessness, alone, or physical, mental, or emotional disability, alone, justify such termination. That is not wh at the statute permits, howeve r.10 What the statute appropriate ly looks to is wh ether the pa rent is, or within a reasonab le time will be , able to care for the child in a way that does not endanger the child s welfare. As former FL § 5313(c)(1) and current § 5-323(d) make clear, primary consideration must be given to the safety and health of the child. The statute does not permit the State to leave parents in need adrift and then take away their children. The court is required to consider the timeliness, nature, and extent of the services o ffered by D SS or othe r support ag encies, the so cial service ag reements between DSS an d the paren ts, the extent to w hich both p arties have f ulfilled their 10 FL § 5-525(c)(2), which is part of the statute dealing with out-of-home placement and foster care, expressly provides that a child may not be committed to the custody or guardianship of DSS and placed in an out-of-home placement solely because the child s parent or guardian lacks shelter or solely because the child s pa rents are financially una ble to provid e treatment o r care for a c hild with a d evelopm ental disability or men tal illness . -24- obligations u nder those agreeme nts, and w hether add itional services would b e likely to bring about a sufficient and lasting parental adjustment that would allow the child to be returned to the parent. Implicit in that requirement is that a reasonable level of those services, designed to address both the root causes and the effect of the problem, must be offered educational services, vocational training, assistance in finding suitable housing and emp loyment, teach ing basic pa rental and d aily living skills, therap y to deal with illnesses, disorders, addictions, and other disabilities suffered by the parent or the child, counseling designed to restore or strengthen bonding between parent and child, as relevant. Ind eed, the requ irement is m ore than im plicit. FL § 5- 525(d), de aling with foster care a nd out-of -home p lacement, e xplicitly requires D SS to ma ke reason able efforts to preserve a nd reunify fa milies and to make it possible for a child to saf ely return to the child s hom e. There are some limits, h oweve r, to what the State is require d to do. Th e State is not obliged to find em ployment fo r the parent, to f ind and pa y for perman ent and su itable housing for the family, to bring the parent out of poverty, or to cure or ameliorate any disability that prevents the parent from being able to care for the child. It must provide reasonable assistance in helping the parent to achieve those goals, but its duty to protect the health an d safety of the children is no t lessened an d cannot b e cast aside if the parent, despite that assis tance, re mains u nable o r unw illing to p rovide approp riate care . The State is not required to allow ch ildren to live p ermanen tly on the streets or in -25- temporary shelters, to fend for themselves, to go regularly without proper nourishment, or to grow up in permanent chaos and instability, bouncing from one foster home to another until they reach eighteen and are pushed onto the streets as adults, because their parents, even with reasonable assistance from DSS, continue to exhibit an inability or unwill ingnes s to prov ide min imally acc eptable shelter, s ustena nce, an d supp ort for th em. Based upon evidence of the ef fect that such circumstanc es have on the child, a co urt could reasonably find that the child s safety and health of the child is jeopardized. Recognizing that children have a right to reasonable stability in their lives and that permane nt foster care is generally not a preferred o ption, the law requires, w ith exceptions not applicable here, that DSS file a TPR petition if the child has been in an out-of-home placement for 15 of the most recent 22 months. See FL § 5-525.1(b ). The court s role in TPR cases is to give the most careful consideration to the relevant statu tory factors, to m ake specif ic findings b ased on th e evidenc e with resp ect to each of them, and, mindful of the presumption favoring a continuation of the parental relationship, determine expressly whether those findings suffice either to show an unfitness o n the part of the parent to remain in a parental relatio nship with the child or to constitute an exceptional circumstance that would make a continuation of the parental relationship detrimental to the best interest of the child, and, if so, how. If the court does that articulates its conclusion as to the best interest of the child in that manner the parental rights we have recognized and the statutory basis for terminating those rights are -26- in proper and harmonious balance.11 This Case Apart fro m her attack on the struc ture of the sta tute, Ms. F. s principal co mplaint is that DSS did not pro vide adeq uate service s to her. She complain s that she w as unab le to secure housing without assistance and that DSS did not provide her with housing assistance. It is tru e that she w as unable to secure ho using at lea st housing a dequate for her and the children. It is not true that DSS failed to provide her with assistance. The 11 As noted, Ms. F. cites a number of out-of-State TPR cases in support of her theories. None of them require a different view than that we have taken. Three of the cases are from New Jersey. In Guardianship of K.L.F., 608 A.2d 1327 (N.J. 1992) and Guardianship of J.C., 608 A.2d 1312 (N.J. 1992), the court construed the New Jersey statute as requiring the State to make an affirmative demonstration that the child s best interests will be substantially prejudiced if parental rights are not terminated. K.L.F., 608 A.2d at 1329. The State s argument in both cases was that the children would suffer psychological harm if separated from their foster parents. Although the court recognized that serious and lasting emotional or psychological harm to children as the result of action or inaction by the parents can constitute injury sufficient to justify termination of parental rights, it fo und ins ufficie nt evide nce in th e respe ctive rec ords to s uppor t such a finding . In Guardianship of J.C., the court remanded the case for further proceedings on that issue. Matter of Baby M., 537 A.2d 1227 (N.J. 1988) involved an action by the natural parents of Baby M. to terminate any parental rights possessed by a woman who acted as a surrogate mother. Massachusetts has adopted the view, as a matter of its own State law, that the State may not attempt to force the breakup of a natural family without an affirmative showing of parental unfitness, but it has defined unfitness in terms of whether returning the child to the natural parents would be seriously detrimental to the welfare of the child. Petition of Department of Public Welfare to Dispense with Consent to Adoption, 421 N.E.2d 28, 37 (Mass. 1981), quoting in part from Custody of a Minor (1), 389 N.E.2d 68 (Mass. 1979) and Bezio v. Patenaude, 410 N .E.2d 1 208 (M ass. 198 0). That is not substantially different from the conclusions we reach here. An Alabama case cited by M s. F., Ex parte T.V., has yet to be released for publication. -27- record shows, and the court properly found, that she received substantial help from DSS in attem pting to locate su itable ho using. The basic problem seemed to be that, because of her sporadic employment, much of it part-time, at entry-level wages, Ms. F. was unable to afford an apartment large enough to accommodate her and the children unless (1) she lived with her mother, or (2) she was a ble to qualify fo r Govern ment hou sing assistanc e and find an apartm ent either in a public ho using proje ct or that acce pted hous ing assistanc e tenants. D SS quite p roperly declined to regard the m other, in light of her drug-dealing h istory, which on one or mo re occasions caused Ms. F. and the children to be evicted, as an acceptable resource for the children. The drug-dealing evictions apparently made Ms. F. ineligible for at least some government housing assistance, and, to the extent she was eligible for Section 8 voucher assistance, as she claimed, there were no apartments available. The record shows that DSS provided referrals and transportation to local housing agencies and helped her prepare ap plications, bu t it obviously had no author ity to change the rules applica ble to such units or to make a local public housing agency accept Ms. F. as a tenant or provide Section 8 assistance when there were other families ahead of her on the waiting list. Ms. F. has not indicated with any particularity what more DSS was required to do or, indeed, could reasonably have done. Ms. F. also comp lains that DSS refuse d to return the children to her, notwithstanding her lack of suitable housing and stable employment, and then made a -28- point of the diminished contact and bonding between her and the children. With the children having been found CINA and placed in the custody of DSS due to neglect arising from lack of housin g, DSS w as not oblige d to return the children to M s. F. when she still had no adequate housing and, in the view of DSS, the conditions that caused the children to be CINA had not been alleviated. Ms. F. did have and, for the most part, did exercise weekly visitation with the children. Access to them was never denied. Notwithstanding our rejection of Ms. F. s principal complaints, we shall direct that the judgments of the Circuit Court be vacated and that the cases be remanded for further proceedings, for two reasons. The first is a concern over some of the court s findings, at least as articulated. As noted, FL § 5-313(c) required that the co urt give primary consideration to the safety and health of the children. The court seemed to resolve that factor by noting that the children had special needs health and safety needs which are better served by granting the Department the guardianship. The court did not identify those n eeds but sim ply adopted c ounsel s arg ument tha t the children s safety required that they be given a chance for an opportunity to have all those services that they need that th e Departm ent can . . . prov ide if I grant th e guardian ship. The court did not indicate w hat services D SS could provide if g uardiansh ip was gra nted that it cou ld not provide otherwise. Whatever the court had in mind, that is not a clear or sufficient explanation of w hy the safety and health of the children req uired termination of M s. F. s parental rights. Even Dr. Munson s opinion that a joint placement of Rashawn and -29- Tyrese was not appropriate would not suffice to establish that a continuation of the parental relationship would be detrimental to the health or safety of the children. One of the co nsiderations in former § 5 -313(c) is the children s feelings tow ard and emo tional ties with the [children s] natural pa rents. As to that, all the cou rt could find is th at it was not su re Ra shaw n and T yrese had much attachm ent left to Ms. F . Given the State s burden to establish by clear and convincing evidence Ms. F. s unfitness or exceptio nal circum stances that w ould mak e continua tion of the p arental relation ship detrime ntal or th e childre n s bes t interest, th at is not a suffici ent find ing, to b e not s ure. The cou rt, as noted, co mplimen ted Ms. F . on her eff ort to mainta in contact w ith the children but made no finding as to the adequacy of that effort. Although concluding that Ms. F . had done a pretty good job of m aintaining co mmun ication with DSS, it found that the effort was not sufficient to guarantee the safety and health of the children. The court did not explain the connection between any lack of communication, to the extent there was any such lack, and the safety and health of the children. Principally, the problem is that the court, understan dably in light of the statutory language and not having the benefit of the views we express in this Opinion, did not relate the findings it made with respect to the statutory factors to the presumption favoring continuation of the parental relationship or to any exceptional circumstance that would suffice to re but that presumption. Th at needs to be done . On remand, the co urt will have to make c lear and specific findings w ith respect to each of the releva nt statutory -30- factors and, to the extent that any amalgam of those findings leads to a conclusion that exceptional circumstances exist sufficient to rebut the presumption favoring the parental relationship, explain clearly how and why that is so. We suggest that, since eighteen months h ave elapse d since the M ay, 2006 hea ring, the parties be given th e opportu nity to offer evidence of what has occurred in the meantime and the current status of Ms. F. and the children.12 JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE JUDGMENTS OF CIRCUIT COURT FOR FREDERICK COUNTY AND REMAND TO THAT COU RT FOR FURTHER PROC EEDIN GS IN C ONFO RMA NCE W ITH TH IS OPINION; COSTS IN THIS COURT AND IN COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 12 We do not regard this Opinion as changing any substantive law. By requiring trial courts to relate their findings as to the statutory factors to the presumption favoring a continuation of the parental relationship and to the two circumstances that would rebut that presumption parental unfitness or exceptional circumstances that would make continuation of the parental relationship detrimental to the best interest of the child the Opinion clearly requires a som ewhat different articulation o f findings by the trial court than had previously been regarded as permissible. Accordingly, we intend that that aspect of this Op inion be ap plied to the ca se at hand b ut otherw ise prospec tively only, and that it not apply to cases in which, as of the date the mandate is issued, a final TPR judgment has been entered by a C ircuit Court a nd no time ly appeal is pen ding from that judgm ent. -31- Circuit Co urt for Frede rick Coun ty Case Nos. 10-Z-05-03248 & 10-Z-05-030249 IN THE COURT OF APPEALS OF MARYLAND No. 7 September Term, 2007 In Re: Adoption/Guardianship of: Rashawn H. and Tyrese H. Bell, C. J. Raker Harrell Battaglia Greene Wilner, Alan M. (Retired, specially assigned) Cathell, Dale R. (Retired, specially assigned), JJ. Conc urring o pinion by Cathe ll, J., which Bell, C.J. joins. Filed: December 11, 2007 I concur in the judgment. I write to make clear my position. As I read the majority s opinion, it incorporates that either a finding of unfitness or exceptional circumstances must be found after the statutory provisions are addressed in order for parental rights to be terminated under the statute. I have a strong belief that the Constitutions of the United States and Maryland are paramount to any statute that may be enacted. In my view, the fundamental constitutional right of parents to raise their children is to be addressed normally by an initial finding of either parental unfitness or extraordinary circumstances. Before a trial court addresses the statutory factors it should address the unfitness/extraordinary factors prior to considering elements in the statute. In simplified form, I believe that the majority has the cart before the horse, but, nonetheless, has arrived at the right destination, albeit in reverse. Chief Judge Bell joins in the concurrence. -1-
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