In Re Adoption No. 2428 in Circuit Court for Washington County

ALPERT, Judge. The Washington County Department of Social Services (“the Department”) filed a Petition for Guardianship With the Right to Consent to Adoption and/or Long-Term Care Short of Adoption over James F., the 2V2-year-old son of Kimberly P., who was a 15-year-old “Child in Need of Assistance” at the time the Petition was filed. James, through counsel, filed an answer and Kimberly filed her notice of objection. Aileen F., natural mother of Kimberly, filed a motion to intervene which was granted.

James’s natural father consented to the Petition. At trial, the Circuit Court for Washington County (D. Moylan, J.) granted the Department’s request for relief. On appeal, Kimberly raises the following issues: I. Whether the court erred as a matter of law by finding that the required factors contained at Md. Fam.Law Code Ann. § 5-313(d)(l) had been satisfied.

II

Whether the court violated appellant’s constitutional right to the equal protection of the law by defining disability to include minority.

III

Whether the court erred in failing to make required findings of fact, in failing to support some of its conclusions, and in failing to weigh these factors ¹³⁶ appropriately when it terminated appellant’s parental rights. Because we conclude that the substantial merits of the case will not be determined by affirming, reversing, or modifying the judgment, we shall remand to the trial court for the purpose of having that court clarify its findings of fact where necessary, make additional findings of fact, and restate its conclusions of law as necessary. Md.Rule 8-604(d). Facts and Proceedings James F. was born to Kimberly P.

(appellant) on December 11, 1986. Appellant, born April 25, 1973, was 13 years old when James was born. The two lived with appellant’s mother, Aileen F., until April 30, 1987, when James and appellant were adjudicated Children In Need of Assistance. The Washington County Department of Social Services placed appellant and her son in a foster home on June 15, 1987.

They remained there until July 13, 1987, at which time appellant and child were moved to another foster home after an argument between appellant and her foster mother. They remained there until the Department could schedule an emergency hearing. At the hearing on July 23, 1987, the court placed appellant at the Jackson Unit of the Thomas B. Finan Center, a structured shelter care facility in Cumberland, Maryland, over her objection. The court committed James to the Department for foster care placement.

The Department provided transportation for James to the Finan Center to visit with appellant on four occasions. On October 8, 1987, appellant was placed at the Shining Tree Children’s Home in Washington County, as there was no foster home available or group home that would take both appellant and her son. On that date, appellant’s social worker met with Shining Tree officials to discuss services to be provided to appellant concerning James. The social worker also set up a weekly visitation schedule. ¹³⁷ On December 14, 1987, appellant entered into a service agreement with the Department.

The purported goal of the service agreement was the reunification of appellant and her son. At a review hearing on January 7, 1988, the court ordered the Department and the other professionals involved with the family to form a team to coordinate the services offered to the family. This order was the result of the concerns raised by appellant and her mother that many of the different professionals were requesting different things from them. On May 8th, James was placed in yet another foster home.

On May 27, 1988, appellant and the Department signed a revised service agreement in hopes of appellant assuming gradual responsibility for James’s care. After James’s placement in the most recent foster home, appellant decided that she did not want to visit James there or to be placed there. Instead, she wanted to return to her mother’s home. The Department decided to allow James visits with appellant in her mother’s home.

In July of 1988, James was moved to his current foster home, where he resides with Mr. and Mrs. Tunic. On July 12, 1988, appellant agreed to sign a consent to guardianship, stating that she “was tired of being treated like an adult,” and that she wanted “to be a 15 year old.” Appellant revoked this consent on August 4, 1988. In August or September, 1988, appellant was placed in the home of her mother. James did not join her.

Appellant was removed from her mother’s home on October 6, 1988, and returned to the Shining Tree program. The only explanation of this removal came from appellant, who said she was refusing to get up and go to school because her classmates were calling her names, and from her mother, who said “everything just blew up. Kim wouldn’t go to school.” The Department filed the petition for guardianship on August 28, 1988. Dr. Albert Powell, a psychiatrist, evaluated appellant and James in preparation for the guardianship ¹³⁸ hearing scheduled for December 19, 1988.

Dr. Powell recommended that James be placed for adoption. I. A. In order to terminate a natural parent’s rights to a child, the court must find by clear and convincing evidence that termination is in the child’s best interest and that certain factors exist. Md.Fam.Law Code Ann. § 5-313(a). Where a child has been declared a Child in Need of Assistance (CINA), as in the case sub judice, the court must consider “whether any of the following continuing or serious conditions or acts” set forth in § 5-313(d)(l) 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; (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.

Appellant contends that the court committed legal error in finding that her minority constituted a “disability” and, therefore, satisfied the statutory requirement of § 5—313(d)(l)(i). We agree. Disability is defined in § 5-301(c) for purposes of the guardianship and adoption statute. This definition lists mental disorders, mental retardation, chronic alcoholism, and drug addiction.

Age is not included in the definition. Therefore, appellant’s minority does not support a finding under § 5-313(d)(l)(i). (Given this holding, we need not consider issue “II”.) B. Appellee does not contest the fact that minority is not a disability under the statute. It contends, rather, that the ¹³⁹ lower court’s decision should be upheld because clear and convincing evidence exists which supports a finding under § 5—313(d)(l)(iii).

Appellee argues that the trial court acknowledged the extensive evidence supporting a finding under § 5—313(d)(l)(iii) that Kimberly could not be counted on to provide the care and control necessary for James’s physical, mental, and emotional health. It points out that the court noted her inability to be “dependable seven days a week, month in and month out”; her consistent inability “to care for the immediate and ongoing physical and psychological needs of the child for long and extended periods of time”; and her inability to provide “the food and clothing and shelter and education or other care or control necessary for the child’s physical, mental and emotional health.” Appellant quite correctly recognizes that “in order to terminate Kimberly’s natural rights over her child, the court must find by clear and convincing evidence that termination is in James’s best interests and that certain factors exist.” She further contends that, additionally, “the court must find that at least one of the serious conditions or acts contained in § 5—313(d)(1) exists” and that “if it does not find that one of these three factors exists, the Section is not satisfied and cannot support a termination of parental rights.” We disagree with the latter contention. 1 Even if ¹⁴⁰ appellant were correct, however, in light of the trial judge’s factfinding pursuant to § 5—313(d)(l)(iii), the contention becomes irrelevant. We believe that the physical and financial ability referred to in subsection (iii) relates to the natural parents’ repeated failure to provide the child with “adequate food, clothing, shelter, and education” and not to “other care or control necessary for the child’s physical, mental, or emotional health.” In regard to the child’s physical, mental, and emotional health, Judge Moylan observed: The reason why I’m going to terminate the parental rights is really based on the evidence. Probably the single most important factor in this case is time.

Time doesn’t wait for anybody and it isn’t going to with this child. The child is now two years old. According to Dr. Powell, the child is not damaged emotionally in any way and the child is very resilient. The relationship that the child has been able to form in the foster home isn’t simply because these foster parents are super people or because they have a mother or father or something like that, it is because the capacity to do that is in the child.

If the child does not get placed in a permanent situation soon, and soon, when you’re talking about a child who is just about twenty four months old, you’re talking in terms of months, and if that would not happen, the child could lose the capacity to form those types of relationships forever, for the rest of the child’s life. That’s why it’s so important. At thirteen years of age, you really had not matured to the point or at a stage of emotional development that you really knew how to provide—I guess probably the most ¹⁴¹ important thing for a parent is not doing anything spectacular or flashy, but it’s sort of being dependable seven days a week, month in and month out, you know, sort of being there and so forth and there’s nothing that really had prepared you so that you would be able to do that as a thirteen year old child. I think some of the things that have been said, it’s almost like he is a little brother.

You’ve had the parenting classes and so forth. You just need more time and there isn’t more time. If it were something that were clear that the amount of time that you needed were measurable in months, then my decision would give me a great deal more pause. But it’s not clear it’s a situation that would improve immeasurably in a certain number of months.

It is still problematical. You are experiencing enormous emotional growth and if that continues, you know, it’s clear that you’re going to be a much better person. Whether that’s going to be three months, six months from now, is very problematical and would be very iffy and uncertain. What I’m deciding the case on are the factors that Dr. Powell had talked about, the capacity right now to provide the loving, nurturing environment which is critical to this child’s best interests and welfare.

Judge Moylan, by adopting Dr. Powell’s “factors,” incorporated the following conclusions into his decision to terminate the appellant’s parental rights. I believe the ability of a family to provide nurturance and acceptance in a non-punitive way to a child is paramount. I believe that Kim is still in the process of being able to accept and use nurturance herself, that she has not sufficiently matured in her personality to be able to be responsible for providing nurturance for a two-and-a-half-year-old youngster, nor do I believe that’s going to happen within a reasonable period of time. Kim is talking about, at age 16, taking her son and making a life for ¹⁴² him and herself, which I don’t believe is a reasonable, that that’s going to happen, that she can make a sufficiently nurturing environment for her son to develop.

The second factor is that this young man has had a number of different living situations. He has, one of the concerns I always have with youngster [sic] that is in and out of a number of foster homes is whether or not they are losing the capacity to perform meaningful attachments, whether life has become so unsteady for them that they become isolated emotionally. We also note that the court was mindful of the necessity to consider the factors set out in § 5-313(c). 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 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; (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; and (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