In Re Adoption/Guardianship No. 2633 in Circuit Court for Washington County

HARRELL, Judge. This consolidated adoption and civil rights appeal arose following the denial of a petition for adoption of an African-American toddler, Tiffany R., filed by a Caucasian couple, Michael and Sylvia Mauk, appellants and Tiffany R.’s former foster parents, in the Circuit Court for Washington County (Moylan, J.). The circuit court followed the recommendations of the Washington County Department of Social Services (WCDSS or the Department), appellee and legal guardian of Tiffany R., and entered an adoption decree in favor of an African-American couple, John and Frances S., also appellees, who, at the time of the proceedings, already had custody of Tiffany R.’s two older brothers. ²⁷⁸ STATEMENT OF THE CASE In July 1990, Tiffany R. was removed from the home of her biological mother by the WCDSS and placed with the Mauks. One of her two older siblings, Rodney, was placed with the S. family.

Her other brother, Justin R., was placed in another foster home. On 27 September 1990, the WCDSS petitioned the Circuit Court for Washington County to designate all three R. children as Children In Need of Assistance (CINA). The circuit court granted the petition and committed them to the custody of the WCDSS. Each of the R. children remained in separate foster care homes until August 1991 when the WCDSS reunited Justin with Rodney in the S. home.

On 13 December 1991, the WCDSS filed a petition for a Final Decree of Guardianship over the R. children with the right to consent to adoption or long term care short of adoption, which the circuit court granted on. 23 June 1992. Accordingly, David A. Engle, the Director of the WCDSS, was appointed guardian of the R. children, including Tiffany. Following the granting of the decree, the WCDSS removed Tiffany R. from appellants’ care and placed her with Mr. and Ms. S., who had care and custody of both Justin and Rodney. The Mauks consequently challenged the WCDSS decision to place Tiffany R. with the S. family by filing a Motion to Intervene in the guardianship proceeding.

The circuit court granted the motion, but declined to return Tiffany to the Mauk home until completion of an evidentiary hearing to determine the best interest of the child. On 24 July 1992, the Mauks filed a Countercomplaint for Declaratory, Injunctive, and Monetary Relief in the CINA action pursuant to 42 U.S.C. § 1983 . The WCDSS responded to the Countercomplaint with a Motion to Dismiss. The Mauks requested the trial court to declare that WCDSS violated their rights under the Equal Protection Clause and to order that the WCDSS permanently return Tiffany to them.

Moreover, both the Mauks and Mr. and Ms. S. filed cross-petitions for adoption on 29 September 1992. The WCDSS filed an Answer on 2 October 1992, and requested the circuit ²⁷⁹ court to sever the § 1983 action from the adoption proceedings. On 6 January 1993, the circuit court dismissed the Mauks’ countercomplaint from the adoption action and ordered that it be brought in a separate action. Disposition of the U2 U.S.C. § 1983 Action Appellants, individually, as next friend of Tiffany R., and as taxpayers of the United States and the State of Maryland, filed a Complaint for Declaratory and Injunctive Relief with the circuit court on 22 January 1993.

In response, the WCDSS filed a Motion to Dismiss or, in the alternative, restated its Motion to Stay. On 22 March 1993, the Mauks filed not only a response in opposition to the WCDSS motion, but also filed a Motion for Partial Summary Judgment based on the circuit court’s findings of fact in the adoption proceeding. The circuit court held a hearing on 27 April 1993 to decide the WCDSS’s Motion to Dismiss or Stay. At the conclusion of the hearing, the court found that neither appellants nor Tiffany R. had a constitutionally protected liberty interest in preserving the foster family unit.

On 26 May 1993, the court issued a written order dismissing appellants’ civil rights action. The court declined to rule on appellants’ Motion for Partial Summary Judgment because that motion had become moot following the court’s dismissal of the action. Disposition of the Adoption Proceedings During a preliminary hearing held on 29 January 1993, the circuit court determined that it needed an independent expert to evaluate both the Mauks and the S. family. Judge Moylan appointed Barbara DiCocco, a social worker, to perform the evaluation.

The parties and court reconvened on 6 May 1993, at which time Ms. DiCocco presented her recommendations. DiCocco recommended that the child remain with the S. family. On 6 May 1993, Judge Moylan denied the Mauks’ adoption petition and entered a decree for adoption in favor of John and Frances S. On 27 May 1993, appellants filed an appeal of the circuit court’s decision to dismiss their civil rights action. On 4 June ²⁸⁰ 1993, their appeal of the circuit court’s decision in the adoption proceedings followed.

The Mauks’ request to consolidate both the civil rights action and the adoption action for the purposes of this appeal was granted on 3 August 1993. FACTS Tiffany R. and her two older brothers, all African-American children, were removed from the home of their biological mother in July 1990. At the time of her removal, Tiffany R. was approximately six months old and addicted to crack cocaine from birth as a result of her biological mother’s drug abuse. In addition, it was discovered that Tiffany had been a victim of sexual abuse.

On 26 July 1990, each of the R. children was placed with separate foster parents because no relative or foster home could accept all three children. The WCDSS placed Tiffany with the Mauks, a Caucasian couple, who had a reputation for working well with infants born drug-addicted. Appellants had adopted a four-year old African-American female, Janae, and a four-year old biracial male, Dustin, both of whom previously had been foster children in their care. When she entered the Mauk home, Tiffany’s development was far below average for her chronological age.

After one year in the care of the Mauks, however, Tiffany had reached the normal development range. Tiffany’s pediatrician described the transformation as miraculous and attributed it to the attention that she received from appellants while in their care. Moreover, Tiffany formed a strong sibling relationship with the Mauks’ adopted children. Within two weeks of obtaining custody of Tiffany, Sylvia Mauk began inquiring about adoption.

Mrs. Mauk testified that Tiffany’s case worker from the WCDSS informed her that if the plan changed to adoption “it was likely ... we wouldn’t be able to adopt her because she had siblings.” Another caseworker told her that decisions as to whether to keep siblings together were made on a case-by-case basis and that the WCDSS refused to commit at that juncture. By July ²⁸¹ 1991, however, the WCDSS had determined that the long-term plan for Tiffany should be placement for adoption. The WCDSS did little to ensure that Tiffany R. maintained contact with Justin and Rodney R. during her stay with the Mauks. Dr. Rebecca Hegar, a qualified foster care expert, testified that an attachment among the R. children, if broken, would lead to a “lifelong sense” of “loss” for the siblings.

Purportedly in accordance with this view, on 5 November 1991, the WCDSS made a determination to place Tiffany with the S. family for the purposes of adoption. Interestingly, Mr. and Ms. S. admitted that, prior to the WCDSS plan, they had not devoted any attention to a potential adoption of Tiffany. It is undisputed that the WCDSS made its institutional determination without consulting Tiffany’s caseworker, her pediatrician, or its own resident psychologist. Both the caseworker and the pediatrician testified at the adoption proceeding that, had they been informed of the Department’s intentions, they would have advised against it based on Tiffany’s best interest.

The WCDSS psychologist testified, in effect, that Tiffany’s removal would be warranted only where there was “an extremely good reason.” At the time that it decided to pursue an adoption plan with Mr. and Ms. S., the WCDSS decided that appellants would not be suitable adoptive parents for Tiffany. On or about 16 March 1992, the WCDSS informed the Mauks that it intended to place Tiffany R. in an African-American foster home. Initially, it cited, as an obvious reason for its decision, a desire to reunite Tiffany R. with her brothers. In addition, the WCDSS admitted that the race of the potential adoptive parents was considered, but it was unable to explain what weight that factor was given in the overall evaluation.

It noted its concern that there would be no integration of the children into the African-American community because the Mauks lived in a predominantly Caucasian neighborhood. After appellants informed the WCDSS that they intended to challenge Tiffany’s eventual removal irom their home, the WCDSS cited additional, more accusatory, reasons for its ²⁸² decision. The Department, based on statements allegedly-made by Mrs. Mauk, asserted that Mr. Mauk was not involved sufficiently in the parenting process because he worked long hours and weekends. In addition, it claimed that Mr. Mauk’s father had exhibited racial prejudice against their adopted African-American daughter for a period following her adoption.

The WCDSS never contacted anyone to confirm or deny these allegations. At trial, the Department was unable to produce any evidence to substantiate its claim in this regard. Indeed, Mr. Mauk’s father vehemently denied the allegation and testified under oath that he loved Tiffany as if she were his natural grandchild. As a final basis for its decision, the WCDSS asserted that keeping the situation status quo would overburden the Mauks with “special needs” children and, therefore, it would not be in any of the children’s best interests for Tiffany to remain in the Mauk household.

It was undisputed, however, that for the purpose of State subsidies, neither Tiffany R. nor Janae Mauk was considered a “special needs” child. On 29 March 1992, with the adoption battle well underway, Tiffany R. fell into a swimming pool. She was recovered unconscious, given CPR, and immediately taken to the hospital as a precautionary measure. The physicians who treated Tiffany advised WCDSS that it would not be in the child’s best interest, following the trauma, to remove her from the Mauk household.

Despite the hospital’s advice in this regard, the WCDSS removed Tiffany R. from appellants’ home on 31 March 1992 and placed her with the S. family. The record indicates that Child Protective Services confirmed the accidental status of the incident to WCDSS on 1 April 1992, but the Mauks were not informed of the finding until 15 April 1992. Despite the findings of Child Protective Services, Tiffany R. was not returned to appellants’ home. After a period of approximately two and one half weeks, the WCDSS, following a recommendation from its psychologist, consented to biweekly visitation between Tiffany R. and appellants.

In May 1993, however, the Department inexplicably terminated the ²⁸³ Mauks’ visitation privileges. As a result, appellants filed a countercomplaint in the adoption/guardianship proceedings, seeking, inter alia, pendente lite care of Tiffany, pending a final decision by the court on the child’s adoption. On 20 August 1992, the circuit court held a hearing to determine the pendente lite custody issue. The 20 August proceedings began what became a long and arduous task for the court of accumulating and evaluating the opposing sociological and psychological expert testimony offered by the parties.

The WCDSS and its expert witnesses recommended not only a pendente lite, but also a permanent, placement for Tiffany R. in the S. home. The only expert testimony offered in support of appellants’ position at the 20 August hearing came from Tiffany’s pediatrician. On 28 August 1992, the circuit court denied appellants’ Request for Interlocutory Injunction and granted pendente lite custody of Tiffany R. to Mr. and Ms. S. with two-hour visitation periods between Tiffany and appellants twice a week. The visits, which were supervised by a licensed social worker, began on 16 September 1992 1 and continued until May 1993.

The circuit court held a hearing to resolve the parties’ cross-petitions for adoption and consider testimony concerning the global issue of trans-racial adoption on 30 October 1992. Both parties presented expert testimony analyzing the importance of race in determining which placement would be proper for Tiffany R. Unable to make a decision based on the expert testimony and fact witnesses presented by the parties, the court took the matter under advisement. After making its preliminary findings of fact on 20 December 1992, the circuit court, on 6 January 1993, ordered that a neutral expert evaluate the S. family and the Mauks. The court appointed Barbara DiCocco, ²⁸⁴ a licensed social worker, as the court’s expert witness.

On 6 May 1993, Ms. DiCocco recommended permanent placement in the S. home. Although she acknowledged that appellants were also a suitable adoptive family for Tiffany, Ms. DiCocco concluded that “Tiffany will suffer loss again if she is sent back to the Mauks. This will be debilitating to her development and well-being.” Her ultimate conclusion was not based on the disingenuous accusations against the Mauks set forth by the WCDSS. Rather, her opinion rested on the potential for further harm to the child if she was removed yet again from an environment that the evidence suggests she considered to be her home.

Despite its protracted condemnation of the WCDSS for its atrocious handling of the case 2 , the trial court adopted the position of Ms. DiCocco and signed an Order authorizing Tiffany R.’s adoption by Mr. and Ms. S. Judge Moylan concluded, inter alia, that: The child is attached and is an integral part of that family [the S. family] and I think in her best interest I’m not prepared to take the risk and move her back to the Mauk home.... [t]o again remove her today from the S. home would be a third time for her and I’m not prepared to do that. I think it would be wrong. I think it was wrong when the Department of Social Services did it and I think it would be wrong if I were to do it now. ²⁸⁵ ISSUES On appeal, the Mauks contest the trial court’s conclusions in both the adoption proceedings and the constitutional claims brought by appellants under 42 U.S.C. § 1983 . We have rephrased and reorganized their arguments as follows: I. The trial court abused its discretion by granting the S.’s Petition for Adoption.

A. The Mauks had the only valid petition for adoption before the court. B. The WCDSS violated various statutory provisions of the Family Law Article in deciding to place Tiffany R. with the S. family. C. The trial court abused its discretion by finding that it was in Tiffany R.’s best interest to be adopted by Mr. and Ms. S. rather than the Mauks.

II

The trial court erred in dismissing the Mauks’ complaint under 42 U.S.C. § 1983 because the Mauks had standing to bring the claims. A. The Mauks have standing to state a claim under 42 U.S.C. § 1983 . B. The Mauks were denied equal protection under the Fourteenth Amendment of the Constitution.

III

The trial court erred by granting the Motion to Dismiss appellants’ 42 U.S.C. § 1983 claims. Based on our thorough review of the record and the applicable law, we conclude that Tiffany R. should remain in her current adoptive placement with the S. family. Although we find the actions taken by the WCDSS with regard to the Mauks to be reprehensible, we are forced by constitutional restraints to affirm the trial court’s dismissal of the Section 1983 action as well. I. Standard of Review The scope of appellate review of a trial court’s decision in adoption proceedings is generally limited to whether the ²⁸⁶ trial court abused its discretion or whether the findings of fact by the trial court were clearly erroneous.

Coffey v. Dept. of Social Services of Baltimore City, 41 Md.App. 340, 346 , 397 A.2d 233 (1979). If it appears that the chancellor erred as to matters of law, further proceedings ordinarily will be required unless the error is determined to be harmless. Id. Appellants do not dispute the findings of fact made by Judge Moylan.

Rather, they contend that the trial court abused its discretion in denying their adoption petition in favor of Mr. and Ms. S. because: 1) the Mauks’ Petition for Adoption was the only petition before the court; 2) the Mauks were entitled to a statutory preference due to their long-term foster parent status; and 3) it is in Tiffany R.’s best interest to be adopted by the Mauks. We disagree. A. The Validity of the S. ’s Petition for Adoption Appellants contest the validity of the trial court’s adoption order because they argue that theirs was the only Petition for Adoption before the court. It appears from the record that, as a result of a clerical error, the Petition for Adoption submitted by Mr. and Ms. S. was not consolidated properly for trial with the Petition for Adoption filed by the Mauks.

Appellants in no way allege that the court’s consideration of the S. Petition resulted in an inability to argue the merits of their own petition. Indeed, the record indicates that all parties were given full opportunity to present their respective positions at the adoption and guardianship proceedings. Even though the error was corrected later by the trial court 3 , the ²⁸⁷ Mauks request us to hold that the trial court abused its discretion, at the time of its ruling, by failing to recognize noncompliance by Mr. and Ms. S. with procedural rules allegedly governing adoption proceedings. The record is devoid of any indication that appellants raised this issue during the adoption/guardianship proceedings.

Judge Moylan, on several occasions, made perfectly clear that the court was evaluating both the Mauks’ and the S.’s petitions. Appellants never objected to the trial court’s references to, or reading and consideration of, the S. Petition. Moreover, when Judge Moylan ruled in favor of granting the S. Petition, the Mauks failed to object on the procedural grounds that they now present to us. An issue is properly before an appellate court only if was properly presented to the trial court and decided by it in the first instance.

Battista v. Savings Bank of Baltimore, 67 Md.App. 257 , 261 n. 2, 507 A.2d 203 (1986). Accordingly, we hold that this issue was not preserved for appeal. B. Alleged Statutory Violations by the WCDSS Next, appellants claim that the trial court abused its discretion by failing to recognize that the WCDSS violated Maryland law by refusing to give them the preference for adoption based on their status as long-term foster parents. Moreover, the Mauks assert that the WCDSS wrongfully withheld its consent to their Petition for Adoption based solely on the factor of race.

The trial court’s insufficient regard for the statutory violations by the WCDSS, according to the ²⁸⁸ Mauks, warrants our reversal of its conclusion in favor of Mr. and Ms. S. The Family Law Article provides, in pertinent part, that: In developing a permanency plan that is in the best interests of a child under foster care, the local department shall consider the following, in the descending order of priority: ... (3) adoption in the following descending order of priority: (i) by a current foster parent with whom the child has resided continually for at least the 12 months prior to developing the permanency plan or for a sufficient length of time to have established positive relationship and family ties; or (ii) by another approved adoptive family. Md.Code (1974, 1991 Repl.Vol.), § 5-525(c)(3) of the Family Law Article. The WCDSS claims that it factored the statutory preference into its consideration of which adoptive family to recommend, but rejected appellants in favor of the S.’s who had custody of Tiffany R.’s brothers and were of the same race as Tiffany.

Appellants seemingly assert that they were entitled to a “right of first refusal” to Tiffany based on the aforementioned portion of Section 5-525. This view is not in accordance with the plain meaning of the statute. The relevant provision clearly states that the agency must “consider” placement with a current long-term foster parent. It in no way mandates, however, that the agency must recommend placement with that parent.

Likewise, the Mauks contest the use of race, which they claim to be the “overriding” factor considered by the WCDSS in favor of the S. family. In support of their position that the extent of the WCDSS’s reliance on race was illegal, appellants cite Section 5-311(b)(2), which states, in pertinent part, that: [t]he executive head of the child placement agency may not withhold consent for the sole reason that the race or religion of the prospective adoptive parents is different from that of the individual to be adopted or of the birth parents, ²⁸⁹ where to do so would be contrary to the best interests of the child. The language of the statute demonstrates that it was enacted to resolve situations in which potential adoptive parents request consent from a child placement agency and are rejected based solely on their race or religion. In the case sub judice, however, appellants never requested the agency’s consent to adopt Tiffany R. Instead, they waited until the agency made a choice on its own and then intervened.

Thus, the WCDSS did not reject the Mauks because they were Caucasian; rather, it selected the S. family because it was a highly suitable African-American family that already had custody of Tiffany R.’s siblings. Accordingly, we hold that neither Section 5-525 nor Section 5-311 lends any support for appellants’ position. C. Trial Court’s Conclusion Regarding “Best Interest” When deciding a contested adoption case, a trial court must employ the “best interest” standard. In re: Adoption/Guardianship No. 10941, 335 Md. 99 , 642 A.2d 201, 210 (1994).

The determination as to what would most appropriately serve the welfare and best interests of the child is made at the time of the final decision rather than at the time of the first hearing. Crump v. Montgomery, 220 Md. 515, 525 , 154 A.2d 802 (1959), following remand, 224 Md. 470 , 168 A.2d 355 (1960). The trial court may evaluate any number of factors when making a decision in an adoption proceeding. M.L.E., Adoption § 48 at 230 (1960).

Each case is unique and this one is no exception. The Mauks contend that the trial court abused its discretion in finding that the S. home was the proper adoptive placement for Tiffany R. They assert that Judge Moylan “blindly followed” the recommendations of the court-appointed expert and “ignored other relevant evidence.” Indeed, a virtual myriad of expert testimony from medical, psychology, social work, and sociology professionals was presented by the parties for the trial court’s ingestion. The majority of experts ²⁹⁰ who observed both families and Tiffany’s interaction with them testified that, since her removal from the Mauks’ home, Tiffany had developed strong bonding and emotional attachments to the S. family. 4 The experts presented by appellees also emphasized that the importance of keeping Tiffany with her biological siblings would increase over time. With the exception of Tiffany’s pediatrician, all of the experts opined that transplanting Tiffany from the S. home back to the Mauks would only disrupt the child again.

Both parties produced experts to address the issue of race. The Mauks presented the testimony of a sociologist, Dr. Rita Simon, who had conducted a twenty-year study of 204 transracial adoptive families. Although she did not observe Tiffany with the Mauks or the S. family, Dr. Simon opined that children in transracial adoptive families, such as the Mauk family, generally have an enhanced sense of racial identity. In contrast, appellees’ expert, Dr. Rebecca Hegar, specifically evaluated Tiffany’s placement and then concluded that the ideal adoptive parents would provide the child with the ability to “meet their long-term needs for association ... with their kinship network, [and] with their own ethnic or racial group.” Based on this, and additional factors cited above, Dr. Hegar opined that the S. family was the proper placement.

The trial court also considered the opinions of individuals appointed by the court to make impartial determinations. Alex Bognar, an attorney appointed by the trial court to represent Tiffany R., explained that “it would not be in her [Tiffany R.’s] best interest to look to the past at what happened, but to look to the present.... I don’t think another separation would benefit her ... and it wouldn’t be in her best interest to remove her.” ²⁹¹ Moreover, the trial court acknowledged that it relied on the recommendations of Ms. DiCocco, the court-appointed expert and social worker, who observed both families and Tiffany’s interaction with them. DiCocco found that both the Mauks and the S. family were suitable adoptive families and that Tiffany’s strongest relationship was with the Mauks’ adopted daughter, Janae.

Yet, DiCocco concluded that Tiffany should remain with the S. family because Tiffany would “suffer loss again if sent back to the Mauks.” DiCocco further opined that moving Tiffany again would be “debilitating to her development and well beingt,] ... harmful and not in ... [her] best interest.” The trial court’s summation of its findings indicates that it considered thoroughly all issues raised by the parties. Although it acknowledged that the “same-racial makeup” was a factor in its decision, the court concluded that it was not the “overriding” factor. Rather, as stated supra, the court cited, as the determinative factor, the expert testimony suggesting removal from another family to which Tiffany had become attached would have a negative impact on the child’s development. We concur with Judge Moylan’s conclusion that the WCDSS committed a “grave injustice” against the Mauks when it removed Tiffany from their home.

The best interest of the Mauks, however, was not the proper focus of the trial court’s inquiry. We hold that the trial court made a well-informed and rational decision when it concluded that Tiffany’s interests would