In Re Adoption/Guardianship of Mark M.

THIEME, Judge. This case involves a mother’s second appeal from a juvenile court’s refusal to grant her request for a psychological examination of her child by an expert of her choice before terminating her parental rights. On this appeal, she presents the following two questions: I. Did the juvenile court abuse its discretion by refusing to vacate the order terminating the mother’s parental rights, where the Court of Appeals had ordered further proceedings in a related case from which an appeal was pending at the time the order terminating parental rights was entered?

II

Did the juvenile court abuse its discretion by determining that the child would be harmed by the psychological examination proposed by the mother, and that the harm outweighed the mother’s need for the examination? We answer the second question in the affirmative. We need not and shall not address the first question. PROLOGUE Ms. Helen M., the appellant, is the natural mother of Mark M., who was born on March 5, 1994, and who was adjudicated a child in need of assistance (“CINA”) on April 9, 1995, by the District Court of Maryland, Montgomery County, sitting as the juvenile court.

On June 17, 1999, the Montgomery County Department of Health and Human Services (“the Department”) filed a “Petition for Guardianship with Right to Consent to Adoption or Long Term Care Short of Adoption.” The Department recommended that Mark M. be adopted by his paternal grandmother, Peggy M., with whom he had been residing since June of 1998. On February 24, 2000, in connection with the Department’s petition, Helen M. filed a “Motion for Evaluation of ¹⁰² Child.” A hearing was held on the motion on March 29, 2000, and the motion was denied. A six-day hearing on the “Petition for Guardianship with Right to Consent to Adoption” commenced on April 26, 2000 and the appellant appealed the final order that terminated the appellant’s parent rights and granted the Department’s Petition, and on June 13, 2000, the juvenile court granted the petition and terminated Helen M.’s parental rights. ACT ONE In her first appeal to this Court, Helen M. argued that it was a denial of due process to refuse her request for an examination of the child by her own expert. 1 This Court neither reversed nor affirmed on this issue, but instead remanded the case for further proceedings, “in order for the court fully to consider and determine whether such an evaluation would be harmful to Mark, and whether appellant is entitled to the requested evaluation.” In Re: Adoption/Guardianship No. 6Z99027, No. 884, September Term, 2000 (filed March 9, 2001) at 34.

At the time of the remand by this Court, an appeal was pending in the Court of Appeals from a related CINA proceeding involving visitation. In that proceeding, the juvenile court had refused a similar request by Helen M. for a psychological examination óf Mark and had denied Helen M. visitation with her son. In light of the pending appeal from the CINA proceeding, Helen M. filed a motion in this Court to stay further proceedings in the juvenile court in this termination of parental rights (“TPR”) action. This Court denied the motion. ¹⁰³ ACT TWO On July 13, 2001, in accordance with the mandate from this Court, the juvenile court held a hearing to determine whether the forensic mental examination of Mark sought by Helen M. would be harmful to him, and whether Helen M. was entitled to such an examination before her parental rights could be terminated.

Dr. John Mealy, the clinical psychologist that Helen M. proposed to conduct the examination, testified that the purpose of the examination would be to determine “to what extent [Mark’s fear of Helen M. is] a reality based perception.” Dr. Mealy had reviewed the records in this case and had also listened to testimony elicited during previous proceedings in this case from Dr. Robert Lazun, Mark’s therapist, and Dr. Joseph Poirier, a clinical psychologist who had evaluated Helen M. and her family for the Department in 1995. Dr. Mealy noted that reports of abuse conflicted with reports that Mark was well-treated by his mother, so that it was difficult to determine the quality of that relationship. Furthermore, because the attachment with his mother had been abruptly terminated with no visitation, the child had been subjected to a potentially traumatic experience. Dr. Mealy testified that, because of these complicated issues, an in-depth examination would be necessary, which would include watching Mark interact with his grandmother, teachers, or any other caretakers.

In Dr. Mealy’s opinion, it would also be important to conduct psychological testing so that he could “try and get a sense of what [Mark’s] experience is, what he thinks about, what his personality, characteristic strengths, weaknesses, what kind of thinking goes on, how his emotion is handled.” One of his goals would be to determine the extent to which Mark’s perception of his mother was based on reality, and he suggested that an evaluation of the mother could also be important in that process. He stated that in his experience children would sometimes describe their parents as horrible people, and yet when they were together in the same room with them, they would appear to have a good relationship. Dr. Mealy added that he could not envision any harm to the child from such an evaluation, and he had “no sense that ¹⁰⁴ I’ve ever traumatized a child that way.” In his experience, children responded favorably to his treatment of them. When questioned as to whether he had to talk to Mark about his mother, Dr. Mealy testified that if any discussion with Mark about his mother was too distressing for him, he would not pursue it.

If Mark handled those discussions well, however, he might even entertain the possibility of a visit with his mother so that he could observe them together. According to Dr. Mealy, the important thing would be that the evaluation be “done in a sensitive way, to him.” Dr. Mealy testified: Perhaps there should be some visitation with his mother, that I could observe, you know. I mean, that’s, in terms of a full evaluation, that’s out on the edge of it. It’s not something that I would say that I wouldn’t, that I’m going to do, but it’s something that could be sensible, as an evaluation progresses....

Dr. Mealy estimated that it would require approximately 20 hours to perform the type of thorough evaluation that was needed in this case. Although he had never met Mark, Dr. Mealy believed that the examination could be conducted without causing him any additional trauma. When questioned on cross-examination as to whether he had any opinion on whether the process would be harmful to Mark, Dr. Mealy responded that the evaluation would be conducted in a way that was safe and comfortable for Mark, and that he would not pursue avenues of inquiry that were having an adverse effect on him. Dr. Mealy acknowledged that he had no basis for determining whether Mark’s reaction to the mere mention of his mother was based on reality or not, but he felt it was important to the child’s welfare to find out whether those fears were based in reality.

Dr. Mealy acknowledged that the guiding principle in this process was first to “do no harm.” He added that, if the court was uncomfortable with the possibility that the child might be traumatized by the evaluation, he could provide the court with ¹⁰⁵ an interim report which would cover: the tests he had given up to that time; his findings; and his recommendations. Dr. Robert Lazun, a licensed clinical social worker who had been Mark’s therapist since July of 1998, testified as an expert witness for the Department. Dr. Lazun expressed his belief that the proposed examination would be harmful to Mark. According to Dr. Lazun, Mark was doing very well in the care of his grandmother and was developing a sense of trust in his caretakers and teachers.

He and Mark have been working on building relationships of trust among Mark and those with whom he interacts. Mark, however, is suspicious of anything that he associates with his mother. Dr. Lazun stated, “Mark reacts when he hears anything about, anything which reminds him, or makes him think of, the fact that he would have to have something to do with his mom.” Dr. Lazun was confident that having to go through an additional evaluation would send up a “red flag” for Mark, and that “Mark would automatically assume that it has to do with his mother.” Dr. Lazun concluded that Mark “would immediately begin to question the trust that he has in his grandmother and other people,” would “slip back, very far,” and that “he would believe that there isn’t really anyone he can trust.” Dr. Lazun added that the consequences of the examination proposed by Dr. Mealy would be “catastrophic.” According to Dr. Lazun, Mark was doing very well in the care of his grandmother and was developing a sense of trust in his caretakers and teachers. In his opinion, any kind of evaluation would be harmful to Mark at this time because he would sense a connection between the evaluation and his past life, which causes him a great deal of anxiety.

According to Dr. Lazun, Mark would sometimes express his anxiety by twisting and pulling out his hair and spitting. Also, Mark would become irritable and demanding with his grandmother. In Dr. Lazun’s opinion, Mark would be resistant to any testing procedures, and as a result they would probably not produce an accurate reading. Furthermore, the tests might cause him to distrust others and become disruptive at school and at home.

When asked about the possible impact of a ¹⁰⁶ meeting with his mother, Dr. Lazun stated that he was “speechless” and unable to imagine the impact. He further testified, however, that he had occasionally raised the subject of Mark’s mother with him over the past six months, and Mark no longer clenched his fists when she was mentioned. Instead, Mark stated in a very matter of fact way that he didn’t want to talk about it. Although Dr. Lazun stated that in his opinion Mark would be upset and lose his sense of trust in the world if psychological tests were administered to him, Dr. Lazun admitted that he was a clinical social worker, not a psychologist, and that he was not trained in the use and interpretation of psychological tests.

When Dr. Mealy was called to testify in rebuttal, he stated that any perception by Mark of the evaluation as a threatening event would be a distortion of reality and would have “little to do with the reality of the psychological evaluation as I would conduct it.” Dr. Mealy further testified that if Mark’s therapist were to advise him that any reference to the mother would produce a “catastrophic” emotional reaction in Mark, “then I wouldn’t do it, unless I gained independent confidence that it was possible by the child.” After hearing this additional evidence, the juvenile court “reaffirmed” its termination of Helen M.’s parental rights. The court issued an order stating in pertinent part: [T]he court finds by clear and convincing evidence that the evaluation requested would be harmful to the child, Mark M., and would not be in his best interest. In balancing the need to protect Mark M. from further harm with the mother’s assertion of good cause for the evaluation, the Court finds that the risk of harm to Mark M. far outweighs the mother’s need for the evaluation. Helen M. has again appealed to this Court COMMENTARY In resolving Helen M.’s appeal in the related CINA proceeding, the Court of Appeals observed that “[a] parent’s interest in raising a child is, no doubt, a fundamental right, recognized by the United States Supreme Court....” In Re ¹⁰⁷ Mark M., 365 Md. 687, 705 , 782 A.2d 332