In Re Adoption/Guardianship No. 10941

¹⁰² ORDER PER CURIAM. For reasons to be stated in an opinion later to be filed, a majority of the Court concurring, the Judgment of the Circuit Court for Montgomery County (Beard, J.), dated July 23, 1993, is hereby reversed and the case remanded to that court ■with directions that it forthwith grant the relief sought in the Guardianship Petition of the Montgomery County Department of Social Services. Mandate to be issued forthwith. Costs to be paid by the Respondent, Sandra L. Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

KARWACKI, Judge. This case originated with the filing of a petition for guardianship of a three year old boy in the Montgomery County Circuit Court by the Montgomery County Department of Social Services (the “Department” or “MCDSS”). We are asked to decide: (1) whether the offering of reunification services by the Department is a prerequisite to a court’s termination of parental rights where the evidence overwhelmingly suggests that the only biological parent who is resisting such termination will never be fit to regain custody of her child; and (2) whether the trial court erred as a matter of law in denying the Department’s petition for guardianship based on its finding that the termination of parental rights was not necessary to achieve permanency with the custodial grandparents. Because we answer the first question in the negative and the second question in the affirmative, we shall reverse the judgment of the trial court, denying the petition for guardianship. 1 ¹⁰³ I The Maryland General Assembly has enacted a comprehensive statutory scheme to address those situations where a child is at risk because of his or her parents’ inability or unwillingness to care for him or her.

Title 5 of the Family Law Article of the Maryland Code (1984, 1991 RepLVol.) (hereinafter “F.L.”) governs the custody, guardianship, adoption and general protection of children who because of abuse or neglect come within the purview of the Department of Human Resources. This case involves the interplay between the child welfare statutes, F.L. § 5-501 et seq., under juvenile jurisdiction, and the adoption statutes, F.L. § 5-301 et seq., under equity jurisdiction. Subtitle 7 of Title 5 of the Family Law Article concerns the protection of children who have been abused or neglected by their biological parents. Pursuant to this subtitle, certain authority figures, such as health practitioners, police officers, educators and human service workers, are required to report cases of suspected abuse or neglect.

F.L. § 5-704. The local department of social services is then required to investigate such reports. F.L. § 5-706. Thereafter, in accordance with its findings and treatment plan, the local department is required to render appropriate services in the best interests of the child, 2 including, when indicated, petitioning the juvenile court to commit the child to its care and custody.

F.L. § 5-710(a). If the juvenile court determines that the child is a ¹⁰⁴ child in need of assistance (CINA), 3 it has discretion to order that the child be committed to the local department “on terms that the court considers appropriate ... including designation of the type of facility where the child is to be accommodated, until custody ... is terminated with approval of the court” or the child turns 21 years old. Md.Code (1974, 1989 Repl.Yol.) §§ 3-820(c)(l)(ii) and 3-825 of the Courts & Judicial Proceedings Article. Such out-of-home placement can include placement in a licensed foster home, F.L. § 5-525, or placement with relatives.

During the 1970’s, nationwide concern grew regarding the large number of children who remained out of the homes of their biological parents throughout their childhood, frequently moved from one foster care situation to another, thereby reaching majority without belonging to a permanent family. This phenomenon became known as “foster care drift” and resulted in the enactment by Congress of Public Law 96-272, the “Adoption Assistance and Child Welfare Act of 1980,” codified at 42 U.S.C. §§ 670-679 (1988). One of the important purposes of this law was to eliminate foster care drift by requiring states to adopt statutes to facilitate permanent placement for children as a condition to receiving federal funding for their foster care and adoption assistance programs. Under the federal act, a state is required, among other things, to provide a written case plan for each child for whom the state claims federal foster care maintenance payments. 42 ¹⁰⁵ U.S.C. § 671(a)(16).

The case plan must include a description of the home or institution into which the child is placed, a discussion of the appropriateness of the placement, and a description of the services provided to the parents, child and foster parents to facilitate return of the child to his or her own home or to establish another permanent placement for the child. 42 U.S.C. § 675 (1). The state must also implement a case review system that provides for administrative review of the case plan at least every six months and judicial review no later than eighteen months after placement and periodically thereafter. 42 U.S.C. § 675 (5)(B) and (C). The purpose of the judicial review is to “determine the future status of the child” including whether the child should be returned to its biological parents, continued in foster care for a specified period, placed for adoption, or because of the child’s special needs or circumstances, continued in foster care on a long term basis. 42 U.S.C. § 675 (5)(C). Maryland receives considerable federal funds pursuant to this Act.

Accordingly, the Maryland General Assembly has enacted legislation to comply with the federal requirements. Under Maryland’s statutory scheme, for those children committed to a local department of social services the department is required to develop and implement a permanency plan that is in the best interests of the child. F.L. § 5-525. In developing the permanency plan, the department is required to consider a statutory hierarchy of placement options in descending order of priority.

F.L. § 5-525(c). First and foremost, the department must consider returning the child to the child’s natural parents or guardians. F.L. § 5-525(c)(1). If reunification with the biological parents is not possible, the department must consider placing the child with relatives to whom adoption, guardianship, or care and custody, in descending order of priority, are planned to be granted.

F.L. § 5-525(c)(2). If placement with relatives is not possible, then the department must consider adoption by a current foster parent or other approved adoptive family. F.L. § 5-525(c)(3). Only in exceptional situations as defined by rule or ¹⁰⁶ regulation is a child to be placed in long term foster care.

F.L. § 5-525(c)(5). If it is determined that reunification is not possible and that adoption is in the child’s best interests, the juvenile court lacks jurisdiction to finalize this plan. In re Darius A., 47 Md.App. 232, 235, 422 A.2d 71, 72 (1980); see also F.L. § 1-201. Instead, unless the parents consent to the adoption of their child, the department is required to petition the circuit court for guardianship pursuant to F.L. § 5-313.

If the circuit court finds by clear and convincing evidence, after considering the statutorily enumerated factors, that it is in the best interest of a child previously adjudicated a CINA for parental rights to be terminated, the circuit court has authority to grant the department’s petition for guardianship. Such award carries with it the right for the department to consent to the adoption of the child. F.L. §§ 5-311 and 5-317(f). The overriding theme of both the federal and state legislation is that a child should have permanency in his or her life.

The valid premise is that it is in a child’s best interest to be placed in a permanent home and to spend as little time as possible in foster care. Thus, Title 5 of the Family Law Article seeks to prevent the need for removal of a child from its home, to return a child to its home when possible, and where returning home is not possible, to place the child in another permanent placement that has legal status. With these goals in mind, we turn to the facts of the instant case. II Sandra L., now forty years of age, has had severe psychiatric problems since the age of twelve.

She has been involuntarily hospitalized at Springfield State, Holy Cross, Shady Grove Adventist and Washington Adventist hospitals for various periods of time, ranging from three months to a year. She has been diagnosed as schizophrenic, mentally retarded, and perhaps autistic. Sandra L. gave birth to her first child when she was 14 years old. The child was placed for adoption at birth.

San ¹⁰⁷ dra’s second child, Viola, born in 1988, was voluntarily placed at birth by Sandra with the maternal grandparents. At the time of the guardianship hearing in the instant case, the grandparents had filed a petition in the circuit court to adopt Viola. On June 7, 1990, Sandra L. gave birth to her third child, Ivan M., at the Shady Grove Adventist Hospital. On June 11, 1990, the hospital called the Montgomery County Department of Social Services to report concerns that the child would be at risk if he left the hospital with his mother.

After investigating, the Department filed a petition in the District Court of Maryland, which exercises juvenile jurisdiction in Montgomery County, see § 3—801(i) of the Courts and Judicial Proceedings Article, alleging that Ivan M. was a CINA. On June 15, 1990, Ivan was placed with the maternal grandparents, pending further proceedings in the juvenile court. On July 11, 1990, the juvenile court adjudicated Ivan a child in need of assistance. 4 Both Sandra and Ivan’s father, an illegal alien from Nicaragua, attended the adjudicatory hearing and signed a service agreement. That agreement between Ivan’s parents and the Department provided that all parties would undertake certain responsibilities and actions to provide for Ivan’s well being. 5 Pursuant to the agreement, the Department referred the family for a psychological evaluation by the court’s diagnostic team (“SEDS”).

The caseworker also ¹⁰⁸ referred the mother to parenting classes to begin in September. A prerequisite to attending these classes, however, was completion of the SEDS evaluation. In late July of 1990, Ivan’s father was incarcerated for raping one of Sandra’s retarded girlfriends. He was subsequently transferred to the custody of the federal Immigration and Naturalization Service, and on July 9, 1992, he was deported to Nicaragua.

During this entire two-year period, the father did not contact either the Department or Ivan. Sandra’s behavior following the rape by Ivan’s father and his subsequent deportation are illustrative of Sandra’s troubled psyche. When Sandra learned of the rape, her reaction was so severe that the police were summoned and took her to a crisis center. The crisis center arranged for Sandra to be hospitalized for a two-week period during August of 1990.

The caseworker assigned to Sandra’s case visited her at the hospital, bringing a bowl of fruit. Sandra ate all of the fruit during the visit. When the caseworker attempted to discuss plans for Ivan, Sandra became very angry. At the end of Sandra’s two-week stay at the crisis center, her psychiatrist recommended that she transfer to a community psychiatric clinic in Gaithersburg to continue treatment.

Although the Department attempted to facilitate this, Sandra refused. Instead, she moved back to her apartment. The next week, the caseworker went to Sandra’s apartment to transport her to the SEDS evaluation. When the caseworker commented that Sandra must be happy to be out of the hospital, Sandra denied that she had been in/the hospital.

When the caseworker reminded her about the fruit, Sandra said, “That wasn’t me, that was my twin sister.” 6 The caseworker nevertheless took Sandra to the SEDS evaluation, but upon arrival, Sandra refused to speak with the psychiatrist, repeatedly stating that “there’s nothing wrong with me.” Consequently, the caseworker took Sandra home. ¹⁰⁹ A family evaluation which was to include Sandra, the grandparents and Ivan was scheduled for another day. The caseworker transported Sandra to the appointment. In the waiting room, Sandra began clawing and scratching the grandmother. After the grandfather and a staff person separated them, Sandra refused to participate in the evaluation.

Other efforts to help Sandra were similarly rebuked. In October of 1990, Sandra was facing eviction from her apartment in Gaithersburg. The caseworker referred her to Adult Protective Services to help her obtain housing. Sandra moved, however, to an apartment in Takoma Park where she lived with Jose R. until her eviction in June, 1991. 7 The caseworker also attempted to arrange mental health services for Sandra through a community outreach program that specializes in case management of persons with mental illness.

On five occasions, the social worker from the outreach program tried to contact Sandra to discuss the program. Sandra, however, refused to allow the social worker into her home and threatened to call the police. From September 1991, until September 1992, Sandra lived in yet another apartment in Takoma Park. The Department’s caseworker testified at the guardianship hearing that in February 1992, she visited Sandra and discovered five cats in the apartment, cat feces all over the apartment, and cockroaches running up and down the walls.

She further testified that: “There were many things in boxes. There was something fermenting on the kitchen floor. There was a horrible smell of urine. It was very, very difficult going into the apartment.

The windows were open; however, it was very difficult staying in there and going in there.” In September 1992, Sandra, Jose R., and Jose R.’s sister and boyfriend moved into a one-bedroom apartment where they lived for exactly one month. The caseworker visited that ¹¹⁰ apartment but Sandra would not speak with her. Less than one month later, the occupants of the apartment were evicted. Jose R., his sister and her boyfriend moved into a house in Silver Spring. 8 Sandra moved into a homeless shelter where she remained until the shelter closed for the summer on April 30, 1993.

During the month of May 1993, Sandra stayed at another shelter. During this time, Sandra refused assistance in moving to a shelter that attends to mentally ill homeless persons because she was unwilling to accept the required case management and mental health services. The caseworker then tried unsuccessfully to arrange for supervised housing through the Developmental Disability Administration. The caseworker also attempted to facilitate visitation for Sandra with Ivan.

In accordance with the service agreement, Sandra was to telephone the caseworker weekly to arrange for supervised visits at the Department. The grandmother told Sandra that she could visit Ivan at any time in the grandmother’s home. Despite these arrangements, Sandra rarely visited Ivan. During one visit at the grandmother’s home, Sandra swore at the grandparents and threw furniture.

At a supervised visit at the Department, the caseworker observed that Sandra never looked at Ivan. Sandra failed to come for a third visit scheduled at the Department in March, 1992. On several occasions, Sandra talked with the caseworker at length about her desire to get her children back and that she “just wanted her parents to be dead.” In September 1992, Sandra accused her parents of having illegal custody of her children. When the caseworker assured Sandra that the grandparents’ custody was legal, Sandra became angry.

She has refused to talk with the caseworker about Ivan since that day. At the time of the guardianship hearing, neither the caseworker nor the grandmother knew where Sandra was living. ¹¹¹ Ivan has been diagnosed with severe language disabilities and developmental problems. His grandparents have been very responsive to his special needs. Initially, they enrolled him in an infant and toddler program that met three days a week.

However, when he failed to progress, his grandmother worked closely with the school system to have him placed into a special education program that meets five days a week and includes speech therapy. The grandmother attends all of the required meetings at the school. All evidence adduced at the guardianship hearing demonstrated that the grandparents were providing a stable, supportive and nurturing environment for both Ivan and his sister Viola. At the time of the guardianship hearing, the grandparents had begun the adoption process for Viola.

The grandparents also wish to adopt Ivan, and the Department wishes to facilitate this adoption. Sandra did not attend the guardianship hearing even though she had been personally notified of its date by her court appointed attorney, who offered no evidence at the hearing. On July 30, 1993, the trial court denied the Department’s Petition for Guardianship, stating that “the Movant has not proven by clear and convincing evidence that termination of the parents’ rights is in the Child’s best interest.” The trial judge agreed with the Department that it was in Ivan’s best interest to remain in the home of his grandparents; however, he denied the Department’s petition for guardianship because he determined that it was not necessary to terminate parental rights in order to achieve permanency for Ivan. The judge further found that “[t]he State did not meet its obligation to attempt to reunify the Mother and the Child by affirmatively offering and providing services.” The Department appealed to the Court of Special Appeals.

On November 16, 1993, the Department petitioned this Court to issue a writ of certiorari. On December 21, 1993, we granted the Department’s petition before any consideration of the appeal by the intermediate appellate court. ¹¹² Ill When a natural parent will not consent to the adoption of his or her child, a petition for guardianship is oftentimes filed by the child placement agency or the child’s attorney so that the agency can be granted guardianship prior to the prospective adoptive parents petitioning for adoption. See F.L. §§ 5-313, 5-317. The granting of a petition for guardianship carries with it the termination of the parental rights of both parents, as well as elimination of the need for further consent by the natural parents to an adoption of the child.

F.L. § 5—317(f). 9 Section 5-313 provides that a court may grant a decree of adoption or guardianship without the natural parents’ consent if the court finds by clear and convincing evidence that: (1) it is in the best interest of the child to terminate the natural parents’ rights, and (2) if in a prior juvenile proceeding, the child has been adjudicated a CINA. The “best interest” standard has long been the one used in deciding contested adoption cases in Maryland. In re: Adoption/Guardianship No. A91-71A 334 Md. 538, 559 , 640 A.2d 1085, 1095 (1994); Wash. Co. Dep’t Soc.

Serv. v. Clark, 296 Md. 190 , 461 A.2d 1077 (1983); Shetler v. Fink, 231 Md. 302 , 190 A.2d 76 (1962). This standard also applies in contested custody cases, id., and in cases involving termination of parental rights. In re Adoption No. 87A262, 323 Md. 12, 19 , 590 A.2d 165 (1991). The standard applies to disputes between two natural parents or between a natural parent and a third party.

In re Adoption/Guardianship No. A91-71A supra. Another important interest that must be considered, however, is the right of a parent to raise his or her child. This right, recognized by constitutional principles, common law and statute, is so fundamental that it may not be taken away unless clearly justified. “When the State initiates a ¹¹³ parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.” Santosky v. Kramer, 455 U.S. 745, 759 , 102 S.Ct. 1388, 1397 , 71 L.Ed.2d 599, 610 (1982). Justice Blackmun, dissenting in another case, described a parent’s interest as follows: “At stake here is the interest of a parent in the companionship, care, custody, and management of his or her children.

This interest occupies a unique place in our legal culture, given the centrality of family life as the focus for personal meaning and responsibility. Far more precious ... than property rights, parental rights have been deemed to be among those essential to the orderly pursuit of happiness by free men.... ” Lassiter v. Department of Social Services, 452 U.S. 18, 38 , 101 S.Ct. 2153, 2165 , 68 L.Ed.2d 640, 656-57 (1981) (citations omitted).