In re Adoption/Guardianship Nos. CAA92-10852 & CAA92-10853 in the Circuit Court for Prince George's County

ALPERT, Judge. Appellant, William F. (William), appeals a decision of the Circuit Court for Prince George’s County terminating his rights as parent of Michael J. and Melvin J., twin brothers, and granting guardianship rights to appellee, the Prince George’s County Department of Social Services. Appellant presents four issues for our review: I. Whether the trial court erred in determining by clear and convincing evidence that it was in the best interest of the children to terminate William’s parental rights?

II. . Whether the trial court erred in determining that William’s incarceration constituted a “disability” under section 5—313(d)(i) of the Family Law Article?

III

Whether the trial court erred in determining that William made no effort on behalf of his sons because the State denied William his constitutional right to the opportunity to develop a relationship with his sons?

IV

Whether the trial court erred in failing to admit into evidence an office memorandum which established the twins’ paternal grandmother’s interest in obtaining custody of the twins? For reasons that follow, we reverse the trial court’s termination of William F.’s parental rights. Facts and Proceedings Melvin J. and Michael J. were born on October 20, 1991. At the time, their mother, Melvina J.

(Melvina), was only 14 years old and was herself under the care and custody of the Prince George’s County Department of Social Services (D.S.S.). 1 Ap ⁷ pellant, the children’s father, was 21 years old. He was present at George Washington University Hospital when the twins were born. Two days after the birth, Melvina and the children were discharged from the hospital. Because of Melvina’s age, a shelter care hearing was immediately held and it was determined that Melvina and the twins would be placed in the physical custody of Melvina’s stepfather and mother, Mr. and Mrs. G. Legal custody, it was decided, would remain with D.S.S. William was not present at this hearing.

Shortly thereafter, following a heated argument with her stepfather, Melvina left her mother’s house without the children and returned to live with William. On November 13, 1991, Mrs. G. brought the twins to William’s home because, as a result of her work schedule, she was no longer able to provide full-time care to them. Two days later, Melvina voluntarily placed herself and the twins in foster care with D.S.S. Melvina did not inform William prior to doing so, though they had apparently discussed foster care as an option for the children. During this conversation, William suggested that his mother, Joan W., could take care of the children until he could get himself together.

Melvina responded, “That’s up to you, I don’t really care.” On December 3, 1991, a merits hearing was convened in order to determine whether the twins were “children in need of assistance” (CIÑA). Md.Code Ann., Cts. & Jud.Proc. § 3-801 (1989). Both Melvina and William were present. The court, however, rescheduled the hearing at William’s request in order for him to obtain counsel.

William informed the court at this time that his mother would be a prospect for taking care of the children. After the hearing, Margaret Craig, who was the social worker assigned to the twins’ case, spoke with Melvina and William about their plans for the ⁸ children and discussed with them what services D.S.S. could offer. On December 12, 1991, D.S.S., after holding an administrative meeting, determined that the “permanency plan” for Michael and Melvin should be changed from reunification with their parents to adoption. The reason for this change of plan, according to Ms. Craig, was that D.S.S. felt that Melvina was “[un]able to be a stable influence on the children” and that William “did not want to have custody.” Written notice of D.S.S.’s decision was sent to William.

This notice informed William that he should contact Ms. Craig if he had any questions concerning the change in permanency plan. D.S.S. did not receive any response from William. On December 30, 1991, the rescheduled merits hearing was held; however, neither Melvina nor William was present. The court, nevertheless, proceeded with the hearing and determined that Michael and Melvin were CINA.

In January 1992, the twins’ case was transferred to the adoption unit of D.S.S., and another social worker, Marcia Goldfine, was assigned the case. On June 16, 1992, Ms. Goldfine, on behalf of D.S.S., filed a Petition for Guardianship with Right to Consent to Adoption and/or Long-Term Care, with respect to each child. The dual petitions sought to terminate the parental rights of Melvina and William and place the two children in the full custody of adoptive parents. On August 27, 1992, William filed a Notice of Objection to the petitions filed by D.S.S. In this objection, he requested that one of his family members have guardianship of Michael and Melvin until “I get myself in order.” In September 1992, while the petitions were still pending, William was arrested on drug distribution charges and placed in the Washington D.C. Department of Corrections.

He was sentenced to two years probation and required to complete a nine-month drug treatment program. On June 15, 1993, D.S.S.’s petition for guardianship was heard before the Circuit Court for Prince George’s County. At this time, William had already been sentenced on the drug charges but was still in jail awaiting ⁹ commencement of his treatment program, which was scheduled to begin the last week of June, 1993. After a one and a half hour trial, the court granted D.S.S.’s petition for guardianship as to both children and ordered that the parental rights of William be terminated.

Applying the factors set forth in section 5-313 of the Family Law Article, the court found that William had not accepted any of the services that were offered him by D.S.S. and had otherwise failed to make even a minimal effort to assume responsibility for the children. The court also found that, by virtue of his incarceration, William suffered from a “disability” under section 5-313(d)(i). This disability, the court found, rendered him “unable to care for the immediate and ongoing needs of the children.” The court concluded that the best interests of the twins would be served in the guardianship of the D.S.S. and ultimately in the care of adoptive parents. William appeals this decision, arguing that there was not clear and convincing evidence before the trial court that the best interests of the children would be served by terminating his parental rights.

He claims that D.S.S. failed in its statutory obligations by neglecting to make any effort to communicate with him and provide services that would facilitate a reunion with his children. William further claims that, by failing to extend services to him, D.S.S. denied him the opportunity to establish a relationship with his sons in violation of his constitutional right to do so. William also argues that the trial court erred in finding that his incarceration constituted a “disability” under section 5-313(d)(i). Based on our review of the record and the trial court’s application of the statutory factors, we hold that there was not sufficient evidence presented by appellee to meet its burden of establishing by clear and convincing evidence that William’s parental rights should be terminated and that the best interests of Michael and Melvin would be served in the custody of foster parents rather than in his care or the custody of a member of his family.

While there was no doubt evidence indicating that William did little to accept responsibility for his ¹⁰ sons, the evidence also established that D.S.S. failed to provide William with those services that it was statutorily obligated to provide prior to taking the extreme measure of terminating his parental rights. It was appellee’s burden in the court below to demonstrate that it had offered to provide these services and that it was in the children’s best interests to terminate William’s parental rights. We hold that the Department failed to meet this burden. Moreover, the court erred, we believe, when it found that William’s incarceration constituted a “disability.” Discussion Section 5-313(a) of the Family Law Article provides, in pertinent part, that: A court may grant a decree of adoption or a decree of guardianship, without the consent of a natural parent otherwise required by §§ 5-311 and 5-317 of this subtitle, if the court finds by clear and convincing evidence that it is in the best interest of the child to terminate the natural parent’s rights as to the child and that ...

(2) in a prior juvenile proceeding, the child has been adjudicated to be a child in need of assistance.... Md.Code Ann., Fam.Law § 5-313(a)(1989) (emphasis added). Thus, the burden in this case was on D.S.S. to establish by clear and convincing evidence that the best interests of Michael and Melvin would be achieved by permanently severing their ties with their father and placing them with adoptive parents. In determining what is in the best interest of a child, the court is required to consider an array of factors detailed in subsection (c) of 5-313: (c) Required considerations.—In determining whether it is in the best interest of the child to terminate a natural parent’s rights as to the child in any case, except the case of an abandoned child, 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; ¹¹ (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; (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 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 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.

Md.Code Ann., Fam.Law § 5-313(c). In addition to these factors, both the Court of Appeals and the Supreme Court of the United States have recognized ¹² another “important interest” that must be considered before parental rights are terminated—the fundamental right of a parent to raise his or her child. Santosky v. Kramer, 455 U.S. 745, 759 , 102 S.Ct. 1388, 1397-98 , 71 L.Ed.2d 599 (1982); In re Adoption/Guardianship No. 10941, 335 Md. 99, 112-13 , 642 A.2d 201 (1994). This right is in the nature of a liberty interest that has long been recognized and protected under the state and federal constitutions.

Id. The Court of Appeals has stated: [Ajdoption decrees cut the child off from the natural parent, who is made a legal stranger to his offspring. The consequences of this drastic and permanent severing of the strongest and basic natural ties and relationships has led the Legislature and this Court to make sure, as far as possible, that adoption shall not be granted over parental objection unless that course clearly is justified. The welfare and best interests of the child must be weighed with great care against every just claim of an objecting parent.

Walker v. Gardner, 221 Md. 280, 284 , 157 A.2d 273 (1960). The significance of a parent’s right to raise his or her child is further evidenced by the legislative policy of this state as set forth in the Family Law Article itself. The legislature has declared: (1) that it is the policy of this State to promote family stability, to preserve family unity, and to help families achieve and maintain self-reliance by: (i) responding to financial and family crisis through direct provision of family counseling and supportive services; and (ii) referral to appropriate community resources; and (2) this State has the responsibility to provide services that prevent the kind of family dissolution and breakdown that requires protective services or out-of-home placement. Md.Code Ann., Fam.Law § 4-401 (1991).

In this same vein, among the stated purposes of Title 5 of the Family Law Article is to protect children from “unnecessary separation from their natural parents.” Md.Code Ann., Fam.Law § 5-303(b)(l)(i). ¹³ With these principles in mind, we turn to the factors set forth in § 5—313(c) and their application by the trial court in this case. I. FACTORS UNDER SECTION 5-313(c) Services Offered by D.S.S. to Reunite William and his Sons The first factor that the court must consider under § 5-313(c) is “the timeliness, nature, and extent of the services offered by the child placement agency to facilitate reunion of the child with the natural parent.” § 5—313(c)(1). With respect to this factor, the trial court held that “the testimony supports the finding that [services] were made, [but] they were not accepted” by William. The court found that William made no effort to assume responsibility for the children other than filing a formal objection to D.S.S.’s petition and eliciting a call from his mother to D.S.S. Appellant contends that the court’s analysis of this factor is clearly erroneous, and that there was no evidence presented at trial that the Department made “even a half-hearted attempt to encourage or strengthen William’s parental relationship with the twins.” The trial court heard testimony from both of the social service workers assigned to the twins’ case, Margaret Craig and Marcia Goldfine.

Ms. Craig testified that during the entire time that she was assigned the case—from October 1991 when the twins were born until January 1992—she had only one contact with William. On December 3, 1991, the original date of the CINA hearing, she discussed with both Melvina and William what their plans were for the children and what services D.S.S. could provide them. Aside from this conversation, the Department communicated only with Melvina regarding the children. Ms. Craig testified: Q Is it accurate to say the Department of Social Services used as a source of information Melvina [ ] and sought out no other sources? ¹⁴ A ---- While I was the worker, Melvina was my source of information about [William], and I did not make other efforts. # H* # Q Based on what you testified, is it accurate to say that between the time the children were placed in foster care and the time that the plan was changed to adoption, there was [sic] no efforts on the part of the Department to contact [William]?

A We made efforts to try to contact him through Melvina, which was our only source. Q The Department knew at the time they were using Melvina as a source she was a rather unreliable teenager, didn’t you? £ # H* # $ A Yes. When the twins’ case was eventually transferred to the adoption unit of D.S.S. in January, 1992, Ms. Craig admitted that the Department “didn’t know anything really for sure about the father’s situation since we had no contact with him.” Indeed, it appears that the Department, although originally armed with knowledge of the address where William was living, did little, if anything, to communicate with him. Q During the time you were handling the case, you received no information indicating that- [William] had moved from the original address that you were provided?

A [William]? Q Yes. A Right. I had no indication of his whereabouts other than what I was told by Melvina.

Q Let’s put it this way. During the time you were handling the case, is it accurate to say that you had no reason to believe that had you or any other person in the Department of Social Services sent correspondence to [William] at the same address that Exhibit Number 6 was mailed, that that correspondence would not be received by [William]? ¹⁵ A To the best of my knowledge during that time, [William] was residing at Quincy Place, or that was the place that he and his family could reach him. I had no other knowledge of any other place to reach him. % * * # % * Q Despite having that information, you don’t have any record of the Department of Social Services writing to [William] and offering him any classes or visitation or anything else with regard to the twins in order to accomplish unification with his twins? A We had no address to write him to other than the Quincy Street address.

To my knowledge, we didn’t write and offer him services. Q As of January 27, 1992, did the Department have any reason to believe that the Quincy Street address was no longer the residence of [William]? A I don’t recall specifically. I believe at that time it was the only place we knew we could contact him because he had relatives and friends in that neighborhood. :js sfc Q Ms. Craig, does the Department of Social Services have any experience with coordinating efforts to locate a person who may be residing in the District of Columbia through the various agencies of the Government in the District of Columbia?

A We have an absent parent locator department. Q Was the absent parent locator department utilized in this case in an effort to locate [William]? A They may have had the case referred to them. Whether they took any action during that initial time, I am not sure.

We felt we knew where he was. Q Yet you wrote him no correspondence, is that right? A Melvina was seeing him during those times. So our assumption was that he was—that he could be located there.

Ms. Craig was asked on cross-examination: Q So as of January 27, 1992, the Department of Social Services had no information indicating [William] could not effectively parent his twin boys? ¹⁶ A In terms of actual care of them, no. Thus, the record in this case is devoid of any evidence that D.S.S. actually provided to William any of the wide range of “services” it offers. Ms. Craig was asked whether D.S.S. offered William “any classes or visitation or anything else” in order to accomplish reunification with the twins. She stated, “To my knowledge, we didn’t write and offer him services.” Melvina, in contrast, did receive counseling, parenting classes, and other services.

When asked why Melvina was offered services but William was not, Ms. Craig responded: The difference is that we felt we knew Melvina needed parenting skills training. We felt we knew she didn’t know how to parent effectively. We didn’t know anything about the father [William] at all basically and were asking him to demonstrate parenting skills. If he could demonstrate parenting skills, we could not request any further classes or training for him.

Ms. Goldfine likewise testified that during the entire time that she was assigned the twins’ case, from January 1992 until the trial, she also did not have any contact with William. Indeed, when the petition for guardianship was filed in June 1992, Ms. Goldfine had yet to make any attempt to communicate with him. It was not until September 3, 1992, nine months after first receiving the twins’ case, that Ms. Goldfine sent a letter to William’s home address requesting that he contact her so that they could “discuss plans for Melvin and Michael.” 2 William did not receive this letter, however, since he was incarcerated at the time. Apparently unaware of this, Ms. Goldfine sent four more letters via certified mail to his home address on January 20, January 28, February 3, and February 22, 1993, each of which was returned unclaimed. ¹⁷ Ms. Goldfine testified that she did not learn that William was in jail until February 18, 1993, over a year after she took the twins’ case, when William’s mother, Mrs. W., called her.

Upon discovering that William was incarcerated, Ms. Goldfine sent a letter to him in jail. William called her office after receiving this letter, but she was not in. Ms. Goldfine did not communicate with William after that. She admitted that she made no attempt to go to William’s house or to the Department of Corrections to locate him.

Ms. Goldfine testified: Q Is there any reason that you did not attempt to contact [William] for the six months you had handled the case up to September 1992? A I really had no knowledge that he was at that address. It was just at that time that I contacted him, attempted to contact him. Q Were you provided the entire file from Ms. Craig at the time you assumed responsibility for this case?

A The part that had to do with the children. Q Would you agree that at that time the files reflected the address where [William] could be contacted was 52 Quincy Street? A Yes. Q During the succeeding eight months before you wrote [William] in September 1992, you had not received any information that [William] had changed his residence, had you?

A That’s correct. Q Are you provided a vehicle by the Department of Social Services? A A car? .... There are State cars available.

Q If you request a State car and provide acceptable reason, one will be provided to you to carry out your tasks? A I use my own vehicle. Q Are you telling the Court that, in addition to having a vehicle available to you by the State, you would go so far as ¹⁸ to use your own vehicle in carrying out your responsibilities for the Department? A Yes.

Q Did you ever go out to 52 Quincy Place to meet with [William]? A No, I didn’t. Q Did you ever go anywhere between February 10, 1992, and September 1992 to try and locate [William]? A No, I did not.

The extent of Ms. Goldfine’s work on the twins’ case was summed up in her response to a question posed by counsel for appellant: Q Is this an accurate summary of your work on this case between February 10,1992, and February 18,1998, you had contact with Melvina [], you wrote to [William] on five occasions, four to the Quincy Street address and one to the jail, and sometime you contacted the absent parent locator and nothing else was done on your part? A In terms of [William] or both parents? Q In terms of [William]. A That’s correct.

An “administrative review” of the twins’ case was conducted by D.S.S. on May 7 and November 2, 1992. Ms. Goldfine admitted that when she submitted the case for administrative review, she provided no information that was not already in the twins’ file as transferred by Ms. Craig. We believe that the services offered to William and the efforts made by D.S.S. to attempt to reunite him with his sons fall short of what is required under applicable law. The legislature has specified an array of services that D.S.S. and other local social service departments are required to make available.

These services include family counseling to teach child care and parenting skills, as well as information and referral services to teach families how to locate and use community services. Md.Code Ann., § 4—402(b)(2) (1991). Rules and regulations have also been promulgated governing ¹⁹ the services to be provided to families in an effort to “help preserve family unity and stability,” COMAR 07.02.01.02.B(3), and “facilitate or maintain successful reunification of the child and parent.” COMAR 07.02.11.14.A The range of services that may be provided under these regulations includes, inter alia, family counseling, parenting classes, day care service, vocational counseling and training, and even transportation costs for family visits. COMAR 07.02.11.14.B Aside from Ms. Craig’s discussion with William on December 3, 1991, none of the above mentioned services were communicated or provided to William.

Both Ms. Craig and Ms. Goldfine admitted this at trial. It is true that attempts were made to contact William, but these attempts amounted, in total, to six letters, five of which he did not receive. Clearly, more was required of D.S.S. under the above-mentioned statutes and regulations. Moreover, we find it disturbing that by December 12,1991, less than two months after the twins’ birth, D.S.S. had already decided to change the “permanancy plan” from reunification with William to adoption.

By January, 1992, the Department had transferred the twins’ case to its adoption unit. These actions were taken by D.S.S. despite having communicated with William on only one occasion. This is plainly inconsistent with subtitle 5 of the Family Law Article, which mandates: The Administration shall provide child welfare services to a child and the child’s parent or guardian: (1) to assist in preventing the necessity of placing the child outside of the child’s home; (2) to reunite the child with the child’s parent or guardian after the child has been placed in foster care.... Md.Code Ann., Fam.Law § 5-524 (1991).

We note that the Court of Appeals has held that where “attempts at reunification would obviously be futile, the Department need not go through the motions in offering services doomed to failure.” In re Adoption/Guardianship No. 10941, 335 Md. 99, 117 , 642 A.2d 201 (1994). If no amount of services will result in reunification of the parent with his or her child, ²⁰ then the Department of Social Services need not meet its statutory obligations before seeking to terminate parental rights. Id. at 119 , 642 A.2d 201 . In In re Adoption No. 10941, the Court reversed the trial court’s ruling that the Montgomery County Department of Social Services failed to “meet its obligation to attempt to unify the Mother and the Child by affirmatively offering and providing services.” Id. at 111 , 642 A.2d 201 .

But the case sub judice is easily distinguishable from that case. In In re Adoption No. 10941, despite the mother’s continuous refusal to accept help, extensive efforts were made by the Montgomery County Department of Social Services to facilitate reunification of the mother with her child. The social worker assigned to the case scheduled a family evaluation with the mother, child, and grandparents. Id. at 109 , 642 A.2d 201 .

The case worker went to the mother’s apartment on several occasions to transport her to evaluations and other appointments. Id. at 108-09 , 642 A.2d 201 . The caseworker visited the mother in the hospital and attempted to arrange mental health services for the mother through a community outreach program. Id.

Another social worker from the outreach program tried to contact the mother on five occasions to discuss the program, but she refused to allow the social worker into her home and called the police. Id. The caseworker also attempted to arrange visitation for the mother with her child. Id. at 110 , 642 A.2d 201 .

All of this was attempted even though the mother constantly rebuked the Department’s efforts. Similarly, the case of In re Adoption 09598, 77 Md.App. 511 , 551 A.2d 143 (1989), involved “massive” efforts undertaken by the Prince George’s County Department of Social Services, the same appellee as in the