In Re Adoption/Guardianship Nos. 2152a, 2153a, 2154a in Circuit Court for Allegany County

²⁶⁵ J. NORRIS BYRNES, Judge, Specially Assigned. The Allegany Department of Social Services sought and obtained termination of the parental rights of Appellant, Diane W., over her three minor children. In this appeal, Ms. W. challenges the trial court’s ruling by posing the following issues for review: I. Whether the trial court erred in ruling that the evidence presented was sufficient to support termination under the factors enumerated in Section 5-313 of the Family Law Article.

II

Whether the expert and other testimony was sufficient to support the termination petitions.

III

Whether a 16-year old child not wishing to be adopted is properly the subject of a termination of parental rights petition. For the following reasons, we affirm the trial court’s termination of Ms. W.’s parental rights. FACTUAL BACKGROUND On May 9, 1986, the Allegany County Department of Social Services (“DSS”) received a report from the Allegany County Sheriffs Department of suspected abuse of the four children of Walter F. and Diane W.: Peggy F.; Rebecca F. (“Becky”); Michelle F.; and Melinda F.

(“Mindy”). At the time, the children were ages 14, 10, 8, and 5, respectively. The source of the complaint that gave rise to the report of suspected child abuse was Ms. W. herself. Ms. W. reported that Peggy was engaging in sexual relations with Ms. W.’s nephew, Patrick.

The complaint triggered an investigation of the F. household by Childrens’ Protective Services. The investigation not only confirmed the relationship between Peggy and Patrick but also revealed that all four of the F. girls were being sexually abused by their father, Walter F. Moreover, the investigation revealed that Ms. W. had been present in the same room when her husband had engaged in sexual acts with daughters Peggy and Mindy. ²⁶⁶ As a result of the findings of the Childrens’ Protective Services investigation, Mr. F. and Ms. W. were charged criminally and the children were removed from the household. On May 14, 1987, the children were adjudged as CINA (Children In Need of Assistance) and were committed to the custody of the DSS. Mr. F. pled guilty to a charge of second degree rape of Peggy and Mindy and was sentenced to a term of thirty years in prison.

He remains incarcerated at this time. On April 1, 1987, Ms. W. pled guilty to two charges of child abuse, one each involving Peggy and Mindy. On May 27, 1987, she was sentenced to two consecutive five-year terms. In October of 1990, Ms. W. was released on parole.

As a condition of her parole, any contact that she has with her children must be supervised by the DSS. On September 19, 1989, the DSS filed petitions for guardianship with right to consent to adoption as to Becky, Michelle, and Mindy. (Peggy had reached the age of 18 in the interim.) Mr. F. voluntarily relinquished his parental rights. Ms. W. contested the termination of her parental rights.

On March 17 and 18, 1992, the trial court conducted a guardianship hearing. Testimony was taken from all four of the F. daughters, a psychologist who had treated Mindy, a clinical social worker who had counseled all of the girls, the foster parents of the children, personnel of Childrens’ Protective Services who had carried out the initial investigation of the report of suspected child abuse, the childrens’ case worker, and Ms. W. In addition, transcripts from the criminal proceeding against Ms. W. and statements made by Peggy during those proceedings and during the criminal investigation were introduced into evidence. The abuse suffered by the F. children defies comprehension. Mr. F. abused Peggy by having sexual intercourse with her and by forcing her to perform oral sex on him.

This abuse started when Peggy was nine years old and did not end until she was removed from the household by the DSS. According ²⁶⁷ to Peggy, the abuse occurred frequently, “whenever [her father] had the opportunity ... like every day.” Peggy testified also that she was sexually abused by her mother, who fondled private parts of her body and forced her to engage in fondling of a sexual nature. Peggy witnessed her mother sexually abusing Michelle. Peggy also witnessed her father sexually abusing Michelle.

Peggy told her mother about the abuse of the girls by their father, but Ms. W. did nothing to intervene. Mr. F. started to abuse Michelle sexually when she was about six years old. Michelle also told Ms. W. about the abuse; one time, all of the sisters went to their mother together to complain about the abuse. Ms. W. reacted by accusing the girls of lying and “smacking” them.

Michelle was physically abused by her father also; in one such incident, Mr. F. tied Michelle and her sisters to a tree in the front of their house. They were naked at the time. Becky witnessed her father engaging in sex acts with her sister Peggy “all the time.” She was eight years old when she first observed her sister and father having sex. Becky remembered seeing her father throw her younger sister Mindy down the stairs.

Ms. W. was not present at the time, but she did see the resulting cut to Mindy’s head. Mindy, who was 5 years old when the DSS intervened, remembered being sexually abused by her father and seeing her father having sex with Peggy and Michelle. She also remembered all of the girls going together to their mother to tell her what their father was doing, and that their mother did not do anything in response. Ms. W. denied that she had sexually abused her daughters.

During the criminal proceeding brought against her, Ms. W. admitted that she had been present when her husband had sexual contact with Peggy and Mindy and that she did nothing to intervene on behalf of the children. Ms. W. acknowledged, during the guardianship proceeding, that she left the children alone with her husband in the evenings even though she knew that he usually came home drunk and acted violently. ²⁶⁸ After the children were removed from the F. household and were placed in foster care, they adjusted remarkably well to their new environments. Michelle, who was 14 at the time of the hearing, and is now 16, would like to be adopted by the foster parents with whom she has been living since 1986. Those parents, Mr. and Mrs. M., testified about the many emotional problems that Michelle was experiencing when she first came to them, at age 1% and how, over the years, those problems were resolved.

Mr. and Mrs. M. would like to adopt Michelle. Mindy, who was 11 at the time of the hearing and is now 13, has lived with Mr. and Mrs. S. for more than seven years. Mindy is happy in the S. family, which she describes as consisting of her foster parents and her dog, cat and fish. Mindy would like to be adopted by Mr. and Mrs. S. Mindy’s foster mother and her psychologist, Dr. James E. Miller, described Mindy’s emotional and behavioral problems and the progress that she has made in coming to terms with the abuse she suffered.

Finally, at the time of the hearing, Becky, who was then 16, had been living with her foster mother, Betty S., for one year. Becky had lived in another foster home before that, but had moved because of “mutual problems.” Becky testified that she wants to keep living with her foster mother, but she does not wish to be adopted. While she was incarcerated, Ms. W. wrote letters to Becky, Michelle, and Mindy. Becky and Mindy corresponded with their mother and, after she was released from prison, started to attend supervised visits with her at the DSS offices.

Becky would like to continue to see her mother; Mindy was equivocal about continuing the visits. Michelle did not correspond with her mother while she was in prison and has refused to visit with her since her release. At the time of the hearing, Ms. W. was working as a bartender, on the night shift. She acknowledged that Mindy and Michelle want to be adopted and that all of the children would like to remain in the families where they now live.

She ²⁶⁹ also acknowledged that she does not know the children, that she does not know their likes and dislikes, and that she does not know their feelings. DISCUSSION I. SCOPE OF REVIEW Maryland Rule 8-131 (c) governs our scope of review. That Rule mandates: When an action has been tried without a jury the appellate court will review the case both on the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.

II

SECTION 5-313 TERMINATION FACTORS Under Maryland Family Code Ann., Section 5-313(a)(2) (1991), a court may terminate a natural parent’s rights without consent upon a finding, by “clear and convincing evidence,” that termination is “in the best interest of the child” and that the child has been previously adjudicated a CIÑA. The trial court also must consider the factors set out in Section 5-313(c) and (d) and address each one, “not only to demonstrate that all factors were considered but also to provide a record for review.” In Re Adoption/Guardianship No. 87A262, 323 Md. 12, 19-20 , 590 A.2d 165 (1991). There is no dispute in this case that the children were previously adjudged as CINA. Therefore, Ms. W’s parental rights could be terminated, without her consent, pursuant to the statute if the trial court properly found, by clear and convincing evidence, that termination of Ms. W’s parental rights is in the best interest of each of the three children.

In reviewing the evidence presented below to determine whether the trial court’s findings were clearly erroneous, ²⁷⁰ 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 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.’ ” Scott v. Dept. of Social Services, 76 Md.App. 357, 382 , 545 A.2d 81 (1988), quoting, Cecil County Department of Social Services v. Goodyear, 263 Md. 611, 622 , 284 A.2d 426 (1971). 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, supra, 76 Md.App. at 382-383 , 545 A.2d 81 . Section 5-313(c) lists an array of factors that a trial court must consider in determining whether termination of parental rights is in the best interest of the child. Specifically, the subsection provides: (c) Required considerations.—In determining whether it is in the best interest of the child to terminate a natural parent’s rights * * *, the court shall consider: (1) the timeliness, nature, and extent of the services offered by the child placement agency to facilitate reunion of the child with the natural parent; (2) any social service agreement between the natural parent and the child placement agency, and the extent to which all parties have fulfilled their obligations under the agreement; ²⁷¹ (3) the child’s feelings toward and emotional ties with the child’s natural parents, the child’s siblings, and any other individuals who may significantly affect the child’s best interest; (4) the child’s adjustment to home, school, and community; (5) the effort the natural parent has made to adjust the natural parent’s circumstances, conduct, or conditions to make it in the best interest of the child to be returned to the natural parent’s home, including: (i) the extent to which the natural parent has maintained regular contact with the child under a plan to reunite the child with the natural parent, but the court may not give any significant weight to any incidental visit, communication, or contribution; (ii) if the natural parent is financially able, the payment of a reasonable part of the child’s substitute physical care and maintenance; (iii) the maintenance of regular communication by the natural parent with the custodian of the child; and (iv) whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the natural parent within an ascertainable time, not exceeding 18 months from the time of the placement, but the court may not consider whether the maintenance of the parent-child relationship may serve as an inducement for the natural parent’s rehabilitation; and (6) all services offered to the natural parent before the placement of the child, whether offered by the agency to which the child is committed or by other agencies or professionals.

In a well-reasoned and thorough opinion, the trial court addressed each factor detailed in Section 5—313(c), applied the statutory requirements to the facts, and found by clear and convincing evidence that it was in the best interest of each girl for her mother’s parental rights to be terminated. Ms. W. argues, however, that the trial court must have erred in ²⁷² concluding that the factors supported termination, because the DSS did not, in her view, properly fulfill its role to facilitate a reunion between her children and herself. This argument is without support in the record or in the law. Ms. W. maintains that she has been willing and ready to reconstruct her life with her daughters but that her efforts to do so have been thwarted by the actions and inactions of the DSS.

Specifically, Ms. W. contends that, because she refused to admit that she engaged in sexual acts with her children, the DSS withheld services and would not facilitate a reunion, even though she tried to remain in touch with the children while she was in prison and has attended bimonthly visits with two of the children since being released. Ms. W.’s argument fails to take into account the trial court’s obligation not only to consider the factors set forth in subsection (c) of the statute but also to consider and apply the aggravating factors listed in subsection (d) in cases, such as this one, where there has been a CINA adjudication. The pertinent portion of that statute 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 in need of assistance, * * * the court shall consider the factors in subsection (c) of the section and whether any of the following continuing or serious conditions or acts exist: (ii) the natural parent has committed acts of abuse or neglect toward any child in the family; or (iii) the natural parent has failed repeatedly to give the child adequate food, clothing, shelter, and education or any other care or control necessary for the child’s physical, mental, or emotional health, even though the natural parent is physically and financially able. % % Hfi if: # * ²⁷³ (3) The court shall consider the evidence under paragraph (1) of this subsection regarding continuing or serious conditions or acts and may waive the child placement agency’s obligations under subsection (c) of this section if the court, after appropriate evaluation of efforts made and services rendered, finds by clear and convincing evidence that the waiver of those obligations is in the best interest of the child. Md.Family Law Code Ann., § 5—313(d).

The trial court considered the evidence that was presented about the factors listed in subsection (c) of the statute that relate to the DSS’s obligations—specifically (c)(1), (c)(2), and (c) (6)—and made express findings about that evidence. It evaluated evidence of DSS services that were provided to Ms. W., such as the supervised visitations with Becky and Mindy, and the DSS’s offer, refused by Ms. W., of counseling. Likewise, where there was evidence that services had not been provided, such as the determination by the DSS not to offer services to facilitate a reunion, the court considered that also. Finally, the court made an express finding under subsections (d) (1) and (d)(3) of the statute that there was clear and convincing evidence that waiver of the DSS’s obligations under subsections (c)(1), (c)(2), and (c)(6) of the statute was in the best interests of Ms. W.’s daughters.

As noted above, when the DSS intervened in 1986, the family home of Mr. F. and Ms. W. was a house of horrors. The sexual abuse inflicted on Ms. W.’s daughters regularly, over a period of years, is shocking, to say the least. It is a testament to the resiliency of the human spirit that these children have returned to relatively functional and normal lives with the love and assistance of foster families. Ms. W. was in large part responsible for the abusive conditions that her children endured.

Ms. W. admitted during her plea that she had been present when her husband had sexual contact with two of the girls. She had direct knowledge of the harm that her husband was doing to the children, yet she repeatedly left them alone with him and did nothing to intervene or to come to their rescue. The trial court, having observed Ms. ²⁷⁴ W.’s demeanor and having had the best opportunity to assess her credibility, found that her attempts, during the hearing, to deny knowledge of her childrens’ plights and to recant her plea were “simply incredible.” The trial court’s finding of clear and convincing evidence that Ms. W. committed “serious acts of abuse” against her children by failing to protect them from her husband is well-supported and reasonable; it certainly is not clearly erroneous. Relying on a Pennsylvania case for support, Ms. W. argues, however, that the trial court erred, as a matter of law, in basing its finding of “serious acts of abuse” upon evidence of past, not continuing, abusive acts.

Yet, the language of the court in In Re Involuntary Termination of Parental Rights,