In Re Adoption/Guardianship No. J970013

MOYLAN, Judge. The appellant, James L., challenges a judgment in the Circuit Court for Prince George’s County, Judge Robert Woods presiding, whereby his parental rights were terminated with respect to his son, Kevon T. The appellant raises the following issues for our consideration: 1. Did the trial court err in finding that the appellant’s incarceration was tantamount to a disability thus rendering him incapable of providing adequate care for his son? 2. Did the trial court err in holding that the Department of Social Services was relieved of its statutory obligation to provide the appellant with the appropriate services?

Perceiving no error, we shall affirm the judgment of the trial court. Background In November of 1991, Kevon T. was born to the appellant and Jacqueline T. 1 The appellant and Jacqueline apparently met while both were incarcerated at the Lorton Correctional Facility and working in the garment shop. Although Kevon was conceived while his parents were incarcerated, Jacqueline ²⁴⁶ was released prior to giving birth to Kevon. The appellant, however, is serving a sentence of twenty years to life for a drug-related first degree murder.

He has been incarcerated since 1974. The appellant is currently 44 years old. Because of the appellant’s continuous incarceration, he earned an insignificant sum of money working within the correctional facility. Shortly after Kevon’s birth, the appellant sent Jacqueline approximately $140 per month for child care.

He later learned, however, that Jacqueline was apparently using the money to buy drugs rather than to care for Kevon. The appellant then lost his job within the facility and stopped sending Jacqueline money. At the time of trial, the appellant earned approximately $21 per month. While incarcerated, the appellant has participated in a concerned fathers’ group, has graduated from a drug program, and has been involved in stress and anger management programs.

Between September of 1995 and January of 1997, the appellant had attempted to contact his son through the Prince George’s County Department of Social Services (hereinafter “DSS”). For example, the appellant requested the telephone number of Kevon’s foster family, and he was provided with the phone number. The appellant called twice. The appellant also requested visitation with Kevon.

Beginning in February of 1998, Kevon met with the appellant in the facility, where the appellant talked to Kevon and bought him a soda. Kevon did not recognize the appellant. Kevon was brought to the correctional facility on three additional occasions in 1998 to meet with the appellant. Marsha Goldfine, a social worker for the DSS, testified at trial that despite Kevon’s visits with the appellant, Kevon did not seem to be becoming more familiar with his father.

In March of 1997, the DSS filed a petition in the circuit court for guardianship with right to consent to the long-term care of Kevon. 2 Beginning on October 19,1998, a hearing was ²⁴⁷ held in the circuit court with regard to the termination of the appellant’s parental rights. At the conclusion of the three-day hearing, the trial court granted the DSS’s petition for guardianship and accordingly terminated the appellant’s parental rights with respect to Kevon. This timely appeal followed. Standard of Review In In re Adoption/Guardianship No. 95195062/CAD, 116 Md.App. 443 , 696 A.2d 1102 (1997), we discussed the appropriate focus in cases involving the termination of parental rights.

We there said: In decisions regarding the termination of parental rights, the best interest of the child has long been the guiding standard. Indeed, the child’s welfare is of “ ‘transcendent importance.’” Termination of parental rights, however, implicates the fundamental constitutional right to raise one’s own child. Because the right “is so fundamental ... it may not be taken away unless clearly justified.” 116 Md.App. at 453-54 , 696 A.2d 1102 (citations omitted). We further noted that “the State bears the heavy burden of proving, by clear and convincing evidence, that termination of a parent’s rights serves the best interests of the child.” Id. at 454 , 696 A.2d 1102 .

Additionally, [i]n reviewing the evidence presented below to determine whether the trial court’s findings were clearly erroneous, our function * * * is not to determine whether, on the evidence, we might have reached a different conclusion. Rather, it is to decide only whether there was sufficient evidence — by a clear and convincing standard — to support the * * * determination that it would be in the best interest of [the child] to terminate the rights of [the natural parent]. In making this decision, we must assume the truth of all of the evidence, and of the favorable inferences fairly deducible therefrom, tending to support the factual conclusion of the trial court. In re Adoption No. 09598, 77 Md.App. 511, 518 , 551 A.2d 143 (1989).

Moreover, in a case involving termination of ²⁴⁸ parental rights, “the greatest respect must be accorded the opportunity [the trial court] had to see and hear the witnesses and to observe their appearance and demeanor.”... Where the best interest of the child is of primary importance, “the trial court’s determination is accorded great deference, unless it is arbitrary or clearly wrong.” Scott [v. Dept, of Social Services,] 76 Md.App. [357], 382-83 [ 545 A.2d 81 ] [1988], In re Adoption/Guardianship Nos. 2152A, 2153A 21514A 100 Md.App. 262, 269-70 , 641 A.2d 889 (1994). Long-Term Incarceration as a Factor When determining whether the termination of parental rights is proper, a trial court is obligated to consider the multitude of factors enumerated in Md.Code Ann., Fam. Law § 5-313. 3 A court is additionally obligated to make “express findings of fact with regard to each statutory factor before a decision granting a petition to terminate parental rights may be sustained.” In re Adoption/Guardianship No. 95195062/CAD, 116 Md.App. at 460 , 696 A.2d 1102 .

In the case sub judice, there is no dispute that the trial judge expressly set forth his decision for terminating the appellant’s parental rights and the factors on which he based his decision. On this appeal we are concerned only with the adequacy of Judge Woods’s consideration of the factor described in § 5-313(d)(l)(i), which provides: (d) Considerations following juvenile adjudication. (1) In determining whether it is in the best interest of the child to terminate a natural parent’s rights as to the child in a case involving a child who has been adjudicated to be a child in need of assistance, a neglected child, an abused child, or a dependant child, the court shall consider the factors in ²⁴⁹ subsection (c) of this section and whether any of the following continuing or serious conditions or acts exist: (i) the natural parent has a disability that renders the natural parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for long periods of time[.] A definition of the term “disability” can be found in Md.Code Ann., Fam. Law § 5-301(c).

That section provides: (c) Disability. — “Disability” means: (1) a mental disorder, as defined in § 10-101 of the Health-General Article; (2) mental retardation, as defined in § 7-101 of the Health-General Article; (3) alcohol dependence, as defined in § 8-101 of the Health-General Article; or (4) drug dependence, as defined in § 8-101 of the Health-General Article. In the instant case, the trial court, when terminating the appellant’s parental rights with respect to Kevon, explained as follows: You would like to say, Mr. L., we’d like to do something for you. Had he testified that I am getting out of prison tomorrow, I have got a job, I am going to do whatever I can do, I want to take my child back and start anew, I would have seriously considered that. The problem is Mr. L. has been sentenced from 20 to life.

Twenty years has passed. We know he’s not coming up for [parole for] a couple of years, two or three years before he is reconsidered with no guarantees. For whatever reason, he’s not going to get out of jail, and the possibility exists that he could be in jail for the rest of his natural life. ... And while I don’t find that jail in and of itself, based upon the ease law even though I find no case really on all fours, is a disability, I find that it is in the best interest of the child, considering all of the factors in reference to the ²⁵⁰ father, that he cannot give the child and has not in the past given the child the adequate food, clothing, shelter, and education or any other care or control necessary for the child’s physical mental or emotional ties, but it says even if the parent is physically and financially able, he’s not physically, he’s not financially able, but emotionally I guess he is able____ I really would say to the Court of Special Appeals if this case goes up, this is just an exception to jail not being a disability because of the factual nature of the case itself.

(Emphasis supplied). The appellant maintains that despite case law to the contrary, the trial court erroneously determined that the appellant’s incarceration was, in fact, a disability under § 5-313(d)(1)(i). In support of his position, the appellant relies on our decision in In re Adoption/Guardianship Nos. CAA9210852 and CAA92-10853, 103 Md.App. 1 , 651 A.2d 891 (1994) (hereinafter “Adoption CAA92 ”), and he concludes: [A] “disability” means a physical or mental illness or addiction. The record here does not reflect that the appellant father has any such condition.

Accordingly, the court erred in concluding that he suffers from a disability. In Adoption CAA92, we addressed for the first time whether a parent’s incarceration could constitute a “disability” within the meaning of Md.Code Ann., Fam. Law § 5-301(c). Specifically, William F., the father of twin sons, had been convicted of drug distribution and sentenced to two years probation along with a requirement that he complete a nine-month drug treatment program.

At the time of the hearing before the circuit court on the issue of the twins’ guardianship, William F. was still incarcerated and was awaiting the commencement of his drug treatment program, which was scheduled to being approximately two weeks after the hearing. 103 Md.App. at 8-9 , 651 A.2d 891 . The trial court concluded that William F.’s incarceration was, in fact, a disability, because he was “unable to care for the immediate and ongoing needs of the children,” as required ²⁵¹ by § 5 — 313(d)(l)(i). William F. appealed and challenged the termination of his parental rights on the basis that the trial court erred in finding that his incarceration constituted a “disability.” Judge Alpert, writing for our Court in Adoption CAA92, explained: The question of whether a parent’s incarceration constitutes a “disability” is an issue of first impression in this state. We agree with the appellant that the court erred when it found that William’s imprisonment was a “disability,” for several reasons.

First, the term “disability” is defined in section 5-301(c) and is expressly limited to mental disorders, mental retardation, chronic alcoholism, and drug addiction. Md.Code Ann., Fam. Law § 5-301(C). Even assuming the definition of “disability” was not so limited, this Court has refused to expand by judicial fiat the definition of this term to include other impediments to a parent’s ability to care for his or her child.

In In re Adoption No. 2428, 81 Md.App. 133, 138 , 567 A.2d 139 (1989), for example, we held that a mother’s minority did not constitute a disability on the basis that it was not included