In Re Adoption/Guardianship of Harold H.

ADKINS, J. Appellant, Mojisola A., asks us to review the decision of the Circuit Court for Prince George’s County to terminate her parental rights with respect to her son, Harold, who was born on February 7, 1995. The unfortunate victim of a severe stroke in 2001, when she was only 41, appellant has resided in a nursing home since that date, while Harold lived elsewhere. Asserting her constitutional rights as a parent, applicable statutes, and judicial precedent, Ms. A. argues the circuit court erred in terminating her parental rights on the grounds of her stroke-induced neurological deficits. Mindful of Ms. A’s lamentable plight, we are nonetheless persuaded that the circuit court acted within its discretion and without error in terminating her rights in order to preserve Harold’s best interests.

BACKGROUND Mojisola A. (Ms. A.) is the mother of Harold H. She had children through a previous marriage to Mr. Akin S., and after divorcing Mr. S., Ms. A. became involved with Harold’s father. Harold was born on February 7, 1995, in North Carolina. 1 Harold developed a close relationship with Mr. S., and with the children of Mr. S. and his mother. Harold and his mother moved to Maryland before Harold was four years old.

The parties agree that, from his birth through March 6, 2001, his mother took good care of Harold and was a fit parent. On March 6, 2001, Ms. A. suffered a severe stroke, possibly arising from injuries she sustained in a 1999 car accident. ⁵⁶⁷ After the stroke occurred, Ms. A. was hospitalized, suffered serious complications, and almost died several times. On October 9, 2001, Ms. A. left the hospital and entered Heartland Homes Healthcare facility (“Heartland”), which is a nursing home. As a result of the stroke, Ms. A. suffered damage to the right hemisphere of her brain.

When Harold’s mother was hospitalized by this stroke, he was initially cared for by Ms. A.’s brother in California. Then Harold went to live with family friends in Prince George’s County, Maryland. On March 25, 2002, these friends brought Harold to the Prince George’s County Department of Social Services (“DSS”), requesting that he be placed in foster care. DSS worked for a period of time to reunify Harold with his biological father, Mr. H. To do this, DSS arranged visits between Harold and his father in Maryland and North Carolina.

This did not work out, however, and Mr. H. was “greatly relieved” when DSS suggested that he give up his parental rights or allow Harold to be adopted. Harold was never especially happy to be with his father, and has no particular attachment to him. Harold’s first foster mother, Ms. W., took care of him until July 2005. Harold still has a positive relationship with Ms. W., whom he calls “grandma.” DSS was worried about the long term possibility of Ms. W. caring for Harold, as she is elderly and has no willing or able family members to care for Harold if she becomes unable to do so.

Therefore, in July 2005, DSS arranged for Harold to be transferred to another foster home, and he was placed with a new foster mother, Ms. McC. Ms. McC. is a schoolteacher, and Harold has done well in her care. Ms. McC. facilitates contact with Harold, his mother, and his half-sister, and she is willing to allow continued contact with his family and accommodate his potential future adoption by one of them. Currently, Harold receives weekly therapy, as arranged by DSS, to allow him to cope with the changes in his life.

Harold has adjusted well in school, is a “B” student, and has no behavioral problems. Harold has bonded with his current foster family, ⁵⁶⁸ and he refers to Ms. McC. as “Mom.” Harold also gets along well with Ms. McC.’s adopted son, Andre, who is Harold’s age. Harold has a brother-like relationship with Andre, and they play video games, basketball, and complete their homework together. Ms. A. remains in residence at the Heartland nursing home.

Dr. James Lewis, a clinical psychologist and neuropsychologist, performed a court-ordered neuropsychological evaluation of Ms. A. in July 2004, and has reviewed Heartland’s records about her condition since that evaluation. Dr. Lewis testified that Ms. A.’s medical records show that she suffered from a right-hemisphere hemorrhagic stroke. Dr. Lewis stated that a hemorrhagic stroke causes the greatest morbidity, which means long term permanent deficit. Ms. A.’s left-brain IQ measured 83, which is at the bottom of the low average range, and her right brain IQ measured 65, which is in the mentally retarded range.

She tested in the “severely brain impaired range” on skills concerning “thinking, planning, judgment, reasoning, awareness of oneself and others.” Dr. Lewis testified that there is no reason to expect major recovery of function. Moreover, he stated that he sees the most improvement in patients like Ms. A. in the first six to twelve months after the stroke. According to Dr. Lewis, “sudden spontaneous recovery of function from her stroke that did not occur in the first five years ... does not happen.” Ms. A. also suffers from dementia, and has an inability to grasp the severity, nature, and extent of her medical problems. For instance, she shows unawareness that she has suffered a stroke.

Further evidence of Ms. A.’s dementia is seen through her actions at the nursing home. She has been observed carrying her own feces in a container, without being aware of it. She also asks for medication that she has already taken. Since Dr. Lewis evaluated Ms. A. in 2004, her condition has worsened, as she now shows “more disorientation, more confusion,” and now requires assistance with maintaining her bowel and bladder control.

Although she does not need assistance ⁵⁶⁹ with her eating or bathing, she needs “prompts and cues” to reorient her to her surroundings as she moves through different areas of the nursing home. Ms. A.’s social worker designee at the nursing home testified that she believes the best condition Ms. A. can expect to attain is “assisted living” status, which would still require 24-hour supervision. The Department of Social Services social worker testified that Ms. A. cannot make independent decisions for herself, and therefore, could not be expected to make decisions for Harold. The social worker designee for Ms. A. at Heartland confirmed that Harold’s mother has no financial decisions to manage, as Maryland Medicaid is paying for her nursing home care.

Ms. A. is capable of conversing with others, and testified in this case. Her testimony, however, revealed some of her confusion. At the trial, she said Harold was 9, when he was actually 11. She testified that she “[had] no idea” why she came to the nursing home, and had “no idea why I’m there.” She said she had resided in the Heartland facility since 1999 (immediately after her car accident), when it was actually 2001.

Ms. A. stated that she does not want the court to terminate her parental rights because she believes she can take care of Harold. Although she has not driven since 2001, she testified that she can drive Harold to school. She also said she could help him with homework, cook for him, and make sure he sees the doctor. She admitted that she cannot have Harold live with her at the nursing home, but could not explain how she could take care of Harold while she lives at Heartland.

Ms. A. testified that “I love [Harold] with my whole heart.” Harold loves his mother also, and continues to visit her in the nursing home periodically. The frequency of the visits is not clear from the record. LEGAL PROCEEDINGS After a shelter hearing, a master declared Harold a child in need of assistance on April 23, 2002. The circuit court ratified ⁵⁷⁰ this decision on May 15, 2002.

After an unsuccessful effort to terminate the rights of Harold’s parents in 2004, DSS re-instituted proceedings to terminate parental rights in 2006. 2 There was a hearing held on March 1 and 2, 2006 in the Circuit Court for Prince George’s County. Harold H.’s father was notified by publication, but filed no objection, and he did not appear at the hearing. The attorney representing Harold agreed with DSS that Ms. A. has a disability, and her parental rights should be terminated. On March 2, 2006, the circuit court granted DSS’s petition to terminate the parental rights of Mr. H. and Ms. A. Ms. A. then filed this appeal, in which she asks the following question: Did the trial court err in finding that Appellant had a disability and in using this erroneous finding to justify termination of her parental rights?

STANDARD OF REVIEW In termination of parental rights cases, the standard of review is “whether the trial court, in making its determination, abused its discretion or made findings of fact that were clearly erroneous.” In Re Adoption/Guardianship No. 3598, 347 Md. 295, 311 , 701 A.2d 110 (1997). In such cases, “the greatest respect must be accorded [to] the opportunity the [trial court] had to see and hear the witnesses and to observe their appearance and demeanor.” In re Adoption/Guardianship No. J970013, 128 Md.App. 242, 247-248 , 737 A.2d 604 (1999) (citation omitted). Therefore, the circuit court’s determination is given great deference, unless it is arbitrary or clearly wrong. Id. at 248 , 737 A.2d 604 .

DISCUSSION Md.Code (1984, 2004 Repl.Vol), section 5-313(a) of the ⁵⁷¹ Family Law Article (FL) 3 authorizes a court to grant a decree of guardianship under certain circumstances, without a natural parent’s consent, “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.” One of these circumstances is when, “in a prior juvenile proceeding, a child has been adjudicated to be a child in need of assistance.” FL § 5-313(a)(2). FL section 5-313(c) requires that the court shall give “primary consideration to the safety and health of the child,” and it identifies the particular factors that must be considered by a court deciding a termination of parental rights case. We address those later. As the statutory provisions must be considered against the backdrop of a parent’s constitutional rights, we pause to review those rights first.

The United States Supreme Court and the Maryland Court of Appeals have repeatedly recognized the fundamental rights of parents to raise their children as they choose. See Santosky v. Kramer, 455 U.S. 745, 753 , 102 S.Ct. 1388, 1394-95 , 71 L.Ed.2d 599 (1982); Troxel v. Granville, 530 U.S. 57, 66 , 120 S.Ct. 2054, 2060 , 147 L.Ed.2d 49 (2000); McDermott v. Dougherty, 385 Md. 320, 334-51 , 869 A.2d 751 (2005). Thus, any termination of parental rights under FL section 5-313 must not violate these fundamental rights. See In re Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 669 , 796 A.2d 778 (2002)(hereafter referred to as “No. 36 ”).

As the Court of Appeals explained, “Maryland has declared that a parent’s interest in raising a child is a fundamental right that cannot be taken away unless clearly justified.” Id. at 670 , 796 A.2d 778 . In addition, “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.” In Re Adoption/Guardianship No. J970013, 128 ⁵⁷² Md.App. at 247, 737 A.2d 604 (citation omitted). The Supreme Court underscored the importance of strictly applying this standard when it concluded, “[i]f anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.” Santosky, 455 U.S. at 753 , 102 S.Ct. at 1394-95 . Nevertheless, the Court of Appeals has recognized that “the best interests of the child may take precedence over the parent’s liberty interest in the course of a custody, visitation, or adoption dispute.” Boswell v. Boswell, 352 Md. 204, 219 , 721 A.2d 662 (1998).

Moreover, “the controlling factor in adoption and custody cases is not the natural parent’s interest in raising the child, but rather what best serves the interest of the child.” In re Adoption/Guardianship No. 10941, 335 Md. 99, 113 , 642 A.2d 201 (1994). Court Of Appeals 2002 Decision In In re Adoption/Guardianship No. 36 In No. 36, the Court of Appeals faced an arduous task in reviewing a trial court’s decision to terminate the parental rights of Mr. F., the father, who had diminished cognitive functioning. In this important decision, the Court vacated the lower court’s decision, finding insufficient proof to meet the stringent requirements in termination cases: Our holding today reflects the idea that fundamental constitutional rights, i.e., the child rearing rights at issue here, can only be completely terminated upon the clearest and most convincing evidence that the parent, however poor, uneducated, or disabled, cannot and will not, even with proper assistance, be able to sufficiently parent his children in the reasonable future. Id. at 699-700, 796 A.2d 778 .

The Court of Appeals also declared a strong presumption that the best interests of a child, generally, are met by not terminating the parental rights of natural parents: ⁵⁷³ In cases where the termination of parental rights is involved, there is, as we have said, a strong presumption that the child’s best interests are served by maintaining parental rights. It is only when clear and convincing evidence exists that the child’s best interests are served by termination, may a parent’s constitutional right to parent his child be permanently foreclosed. Id. at 692 , 796 A.2d 778 . Ms. A. maintains that she stands in the same position as Mr. F., and that No. 36 is compelling precedent for reversal in this case.

We see material distinctions between the two cases, which we discuss below. Mr. F.’s cognitive functioning and abilities in No. 36 differed markedly from Ms. A.’s current condition. In No. 36, the circuit court terminated the parental rights of Mr. F., because of his diminished intellectual abilities. See id. at 679 , 796 A.2d 778 .

These deficits temporarily resulted in an inability to provide food for his two children and loss of electricity. In reversing that decision, the Court of Appeals held that DSS failed to provide the father with any specialized services to assist in parenting with his intellectual and cognitive skill levels. See id. at 682 , 796 A.2d 778 . The Court also focused on key facts about Mr. F.: [The father] proffers that he has completed his education, obtained a driver’s license, has secured employment, and maintains his own residence, indicating that he can, in fact, parent his own children.

Id. at 684 , 796 A.2d 778 . 4 In contrast, Ms. A. has lived in a nursing home facility since 2001, and has enjoyed only brief visits with Harold. 5 Ms. A. ⁵⁷⁴ possesses none of Mr. F.’s enumerated skills and accomplishments. She cannot drive, does not hold a job, and cannot maintain a residence independently of a nursing home. Her inability to provide for Harold’s care and residency, despite her love for him, is a critical distinction between this case and No. 36. There are other distinctions.

In No. 36, the Court of Appeals also considered inadequate the expert testimony that Mr. H. was disabled and unfit to parent. When assessing the psychiatrist’s evaluation, the Court of Appeals opined: Dr. Blumberg’s testimony was, admittedly, conjectural and speculative. A parent’s right to parent should rarely, if ever, be terminated based upon conjectures and speculation. The record even reflects that there was little basis for the conjectures and speculation furnished by Dr. Blumberg.

Id. at 685 , 796 A.2d 778 . Additionally, the Court criticized