Hicks v. Prince George's County Department of Social Services

Levine, J., delivered the opinion of the Court. This appeal arises out of a “Petition for Guardianship With Right to Consent to Adoption And/Or Long-Term Care,” filed by the Prince George's County Department of Social Services (for convenience referred to herein as the County), which was consolidated for hearing with a related petition for adoption filed by foster parents of the minor child, Donna Hicks (Donna), who is the subject of these proceedings. The Circuit Court for Prince George’s County denied both petitions. An in banc panel of three judges, however, convened pursuant to Art. IV, § 22 of the Maryland Constitution, to which the County had submitted ⁹⁵ reserved points and questions, reversed the chancellor and granted the County’s petition.

Donna’s natural mother, Linda Hicks, appellant here, took an appeal to the Court of Special Appeals, but we granted certiorari before the case was heard by that court. We agree that the chancellor’s decision should be reversed, but, for reasons that follow, we remand to the circuit court for further proceedings. The events culminating in this dispute began shortly after appellant’s marriage — her second — to Donald Guy on October 27, 1972. She was a registered nurse who had suffered since 1968 from alcoholism and drug abuse.

Donna was born on May 30, 1973. Prior to her birth, however, the Guys were experiencing serious marital discord. Their marriage took a decided turn for the worse some three months before Donna’s birth, when Mr. Guy informed appellant that he wished to sever the marriage and to place their expected child for adoption. Although appellant initially acquiesced, she ultimately decided against adoption.

When she brought the child from the hospital to their home in Cheverly, her husband reacted violently and began heaping considerable abuse on appellant. She found herself unable to cope with this situation and began drinking heavily. Conditions deteriorated to the point where a representative of Catholic Charities found it necessary to remove Donna and appellant’s other daughter by her first marriage. The older daughter ultimately went to live with her father.

These developments led to a finding by the Circuit Court for Prince George’s County, sitting as a Juvenile Court, that Donna was a dependent child in need of care and supervision, and to a decision that she be committed to the care and custody of the Department of Social Services for temporary placement. In September 1973, Donna commenced to reside with foster parents (the Bakers) in Prince George’s County. She continued to live with them until March 1974, when she was described as suffering from cerebral palsy, a diagnosis which later was proved incorrect. At that time, when she was nine months’ old, her custody was transferred to another foster couple (the Covers), who were the petitioners ⁹⁶ in the adoption proceeding heard by the chancellor.

Given the erroneous diagnosis of cerebral palsy, the Bakers believed themselves emotionally incapable of dealing with a child stricken with such a disease. It was after Donna began to live with the Covers, who accepted her on the assumption that she was afflicted with cerebral palsy, that the earlier diagnosis proved to be incorrect. In any event, Donna has continuously resided with the Covers since March 1974, and according to the evidence appears to have responded favorably to that environment. Following Donna’s placement in the Baker home, appellant continued to reside in Prince George’s County and therefore visited her daughter regularly.

She maintained the same schedule even after moving in November 1973 to Baltimore City, where she found employment as a registered nurse at a hospital. Her visits virtually ceased in December, however, when she entered a treatment program for alcoholics in Baltimore. It was during this period that she met her present husband, also a recovering alcoholic, whom she later married in April 1975. She began drinking again in early 1974, but after entering Alpha House, a short-term treatment center, she discontinued her drinking, and has not done so since February 21, 1974.

This represents by far her longest period of abstinence since the onset of her drinking problems. In March 1974, appellant and Mr. Hicks entered Just House, where they successfully underwent a long-term treatment program. There, she was advised by the director of that program, as she had previously been counselled at Alpha House, that she not visit her daughter while undergoing treatment and recovery. She complied and visited her only twice during the first 18 months of Donna’s stay at the Cover household.

Appellant did, however, maintain telephone contact with the County. On these occasions, she reported to county social workers the progress made by her and Mr. Hicks, who had recovered to the point where he was operating a successful home improvement business. She included in her reports the news of her marriage to Mr. Hicks, the birth of their son in June 1975, ⁹⁷ and their occupancy of an attractive house in the city, as each event occurred. On September 22, 1975, two years and four days from the date on which the juvenile court judge had signed the order assuming jurisdiction over Donna’s case, a county social worker wrote to appellant: “Your daughter, Donna Guy, has been in foster care for two years now.

Our Agency would like to make a definite plan for Donna’s future. You have had very little involvement with and shown little interest in Donna since I became her caseworker over a year ago. I would like to see her placed permanently in her foster home. In order to do this it is necessary to obtain your consent to grant guardianship of Donna to the Prince George’s County Department of Social Services so that she may be released for adoption. “Foster care is meant to be only a temporary placement for a child until a permanent plan can be arranged.

Please give careful thought to this matter and consider what would be in the best interest of Donna. You may call me collect.... I am waiting to hear from you.” This letter elicited an immediate response from appellant, who promptly went to Prince George’s County to see the social worker. On that occasion appellant refused to sign a consent to adoption and commenced a schedule of weekly visits with Donna.

Appellant then filed a petition seeking a review of the juvenile court commitment. Following a hearing on that petition in January 1976, the juvenile court master, before whom appellant and her husband testified, requested a report from the Department of Social Services of Baltimore City on the Hicks’ and on their home. The master then concluded the hearing with this observation: “Well, I can tell you this. The Court is definitely impressed with the progress of the mother and her ⁹⁸ present husband and they have indicated to my satisfaction ... their real honest desire to have this child returned... .” A representative of the Department of Social Services promptly visited the Hicks’ home in Baltimore and then forwarded to the County a report that was favorable to appellant, recommending that Donna be returned to her.

The County never delivered a copy of the report to the master or to appellant, but instead filed its guardianship petition in April 1976, after obtaining a consent to adoption from Mr. Guy. The chancellor heard testimony from appellant and the Covers, and both county and city employees of the Department of Social Services. In general, the city social workers, who were thoroughly acquainted with the Hicks and their home, but not with the Covers, strongly supported appellant in her efforts to have Donna. Conversely, the county social workers, who were familiar only with the other side of the picture, were equally firm in recommending that the petitions be granted.

Additionally, a pyschiatrist, who was also unfamiliar with the Hicks’, testified that it would be detrimental to Donna for her then to be taken from the Covers. At the conclusion of the hearing, the chancellor denied both petitions, but, as we have indicated, the in banc panel, which heard the case only on an appeal taken by the County, reversed and granted the guardianship petition. Appellant advances six grounds for reversal in this Court, all of which focus on errors allegedly committed by the court in banc. Among those arguments are claims that her rights to procedural due process under both the Federal and State Constitutions, and her right to equal protection under the Federal Constitution, were violated by the County.

She also contends that the court in banc lacked jurisdiction because the appeal to that tribunal was not properly perfected. But see Medical Examiners v. Steward, 207 Md. 108, 111 , 113 A. 2d 426 (1955) (court in banc had power to decide question of its own jurisdiction). We need not reach any of the questions posed by appellant, even assuming arguendo that we can ⁹⁹ review alleged errors of the court in banc, but see Buck v. Folkers, 269 Md. 185, 187 , 304 A. 2d 826 (1973); State Roads Comm. v. Smith, 224 Md. 537, 540 , 168 A. 2d 705 (1961); Costigin v. Bond, 65 Md. 122, 124 , 3 A. 285 (1886), since, in any event, the chancellor misapplied the controlling statute. Prior to 1973, when § 75 was added, the consent requirement in cases of both guardianship preceding adoption and adoption was governed solely by Maryland Code (1957, 1966 Repl.

Vol., 1972 Cum. Supp.) Art. 16, §§72 and 74. In a long line of cases, we have read those provisions, particularly § 74, 1 to mean that adoption should not be granted over parental objection unless that course was clearly justified, since such proceedings result in drastic and permanent severing of the strongest and most basic relationships. Dawson v. Eversberg, 257 Md. 308, 313 , 262 A. 2d 729 (1970); Lippy v. Breidenstein, 249 Md. 415, 420 , 240 A. 2d 251 (1968); Beltran v. Heim, 248 Md. 397, 401-402 , 236 A. 2d 723 (1968); Walker v. Gardner, 221 Md. 280, 284 , 157 A. 2d 273 (1960).

This has not meant, of course, that the natural ¹⁰⁰ parent is permitted an absolute, arbitrary veto. Walker v. Gardner, 221 Md. at 284 ; Lagumis v. Ex Parte Lagumis, 186 Md. 97, 106 , 46 A. 2d 189 (1945); Nutwell v. Pr. Geo’s Co. Soc. Serv., 21 Md. App. 100, 106 , 318 A. 2d 563 (1974).

The primary considerations are the welfare and best interests of the child. Lippy v. Breidenstein, 249 Md. at 420 ; Walker v. Gardner, 221 Md. at 284 . Nevertheless, as one commentator was moved to observe from our earlier cases, adoption will not be decreed “over the expressed objection of the natural parent or parents, save in very