In Re Adoption No. 94339058

HOLLANDER, Judge. In December 1994, the Baltimore City Department of Social Services (“the Department”), appellee, filed a petition in the Circuit Court for Baltimore City seeking to terminate the parental rights of Mark M., appellant, and Sonya B. as to their sons, Marques M. and Marcus M., and for guardianship with the right to consent to adoption or long-term care short of adoption. Sonya B., is not a party to the appeal. After a two-day hearing held in May 1996, the court (Strausberg, J.) granted the petition.

Appellant has timely noted his appeal and presents the following questions for our review, which we have rephrased slightly and reordered: I. Did the trial court err in failing to make specific findings of fact?

II

Did the record as a whole justify the extreme sanction of termination of parental rights? For the reasons that follow, we shall affirm. In doing so, however, we recognize that this is a close case. Therefore, we shall set forth a rather detailed summary of the facts.

Factual Background Sonya B. and appellant are the parents of Marques, born on March 8,1989, and Marcus, born on April 4,1990. In addition to Marques and Marcus, appellant and Sonya B. had two other children: Mark M., born January 8, 1988, and Tykia B., born October 7,1986. On February 21, 1996, appellee amended its petition to include the termination of parental rights of appellant and Sonya B. with regard to Mark M. and Tykia B. Appellant has consented to the petition as to Mark M. and Tykia B. Appellant was born in 1972, and Sonya B. was born in 1969. Although the record is unclear, it appears that appellant and Sonya B. were never married.

In any event, in late 1989, after Marques was born and while Sonya B. was pregnant ⁹¹ with Marcus, appellant and Sonya separated. Sonya B. became the primary custodian of the couple’s four children. Appellant has been incarcerated for a substantial portion of Marques’s and Marcus’s lifetimes. He has an extensive criminal record, much of which is associated with narcotics.

Appellant admitted to the following: (1) he was arrested in January 1989 — two months before Marques was born — on drug possession charges, which were stetted; (2) he was arrested in August 1989 on charges of drug possession and gambling, which were stetted; (8) in January 1990 — three months before Marcus was born — appellant was arrested on charges of robbery with a deadly weapon and using a handgun during the commission of a crime, both of which were stetted; (4) in August and September 1990, he was charged with possession of narcotics with intent to distribute, and the charges were also stetted; (5) in October 1992, appellant was charged with possession with intent to distribute and assault, for which he was convicted and sentenced to a term of incarceration of four years. Appellant testified that he also “received an additional year and seven months,” but the offense that resulted in this additional term is unclear from the record. Appellant’s incarceration began in October 1992; he was released on parole in December 1995. The Department’s records were introduced into evidence.

The records indicate that, shortly after the couple separated in 1989, Protective Services reported that the children had poor nutrition, did not receive immunizations, and lived in inadequate housing. Protective Services also raised concerns about Sonya B.’s mental health. The Department paid for several items, such as furniture and groceries, and provided housing for the mother and assisted in paying her electric bill. The Department’s records also reveal that, in April 1990, the Department contacted appellant, who reported that he purchased food for the children.

According to the Department’s witness, case worker Adrian Dean, appellant told the Department that he would encourage Sonya B. “to get immunizations for the children, look for a larger apartment, supply milk and Pampers, assist with child care and supervision, and encour ⁹² age [Sonya B.] to attend counseling sessions from Mental Health.” Further, the Department’s records reflect that an Intensive Family Services (“IFS”) worker contacted appellant in May 1990 and informed him of the continued need for the children to obtain their immunizations. The IFS worker also discussed relocating Sonya B. to Section 8 housing. Dean testified that the records indicated that appellant said he was working with Sonya B. to set priorities with regard to spending her AFDC check, and he agreed to assist the IFS worker in getting Sonya B.’s rent and electric bills paid. He also said he would provide financial and emotional support to the family.

At the same time, however, appellant said he could not find employment because he was unable to obtain his birth certificate and Social Security card. If and when he found a job, however, appellant expressed the desire to have child support taken out of his salary. Appellant also said he believed that Sonya B. was providing good care to the children. 1 The Department’s records between July 1990 and August 1990 indicate that Sonya B. did not make her rent payment and could not show where she spent her AFDC check. Moreover, the Department determined that the children continued to lack proper medical care and that Sonya B. had neglected her children.

Sonya B. also alleged that there had been a lack of support by appellant. Sonya B.’s sister, Darlene B., who at the time of the hearing had custody of appellant’s older children, Mark M. and Tykia B., testified that, during 1990 and 1991, appellant “would make sure the kids had Pampers, milk, and whatever.” In October 1992, appellant was incarcerated after his conviction for possession of a controlled dangerous substance with intent to distribute and assault. In April 1993, while appellant remained incarcerated, Sonya B. abandoned her children, who were then placed in shelter care. On May 3, 1993, while ⁹³ appellant was incarcerated, the children were adjudicated Children In Need of Assistance (“CIÑA”) and committed to the care of the Department.

It is unclear whether appellant attended the CINA hearing. In August 1993, a review hearing was held, at which Marques and Marcus were formally committed to the Department for placement in their current foster home. Appellant attended the hearing and stipulated to the placement of Marques and Marcus in foster care. According to the Department’s records, appellant expressed concern about visits and correspondence with his children.

He also said that he would like to write to his children, and he provided his address at the House of Correction to the case worker. On December 17, 1993, the Department sent a letter to appellant notifying him that his children had been in foster care “for some time now.” According to Dean, the letter informed appellant that “he needs to contact the foster care worker to plan for ... his children and that there’s a time period. It says [the Department] needed the names and numbers of the family members that might be interested in the children for placement.” The letter also stated that, if no plan is made, the agency would proceed with other plans, including adoption. Dean testified that, after this letter was sent, there was no contact with appellant until the Department sent him a letter in September 1994 explaining that a “show cause hearing” had been held in which the Department had decided to pursue termination of parental rights and to plan for the adoption of the children.

Other Department records indicate that the Department accepted the permanency plan of adoption for Marques and Marcus in May 1994, but that there was not enough information about appellant at the show cause hearing in September 1994, and that it was rescheduled for November 2,1994. On September 13, 1994, the Department’s records indicate that appellant called in response to the Department’s letter and said he would not consent to the termination of his parental rights. Three days later, a case worker visited appellant in prison, and appellant said he “very much desires ⁹⁴ reunification with his children.” The Department’s records reflect that appellant indicated he believed he had made significant changes in his life: he obtained his GED while incarcerated; took a college course; attends counseling twice a week; and works as a clerk. The case worker explained the show cause process to appellant, along with the need for appellant to “show some efforts if he wanted to get his children back.” On September 20, 1994, the Department received “a very articulate” letter from appellant.

The case worker’s entry in the Department’s records indicated that appellant again said that he wanted to reunify -with his children and planned to do so. At the termination hearing, Dean testified about a letter from appellant to the Department dated September 16, 1994. 2 In it, appellant stated: “My children have always been the most important thing in my life.” The letter also indicated appellant’s regret for “[t]he road I took to have myself removed from their lives.” In December 1994, the Department arranged for the children to visit appellant in prison. It was the first time appellant had seen his children in more than two years. According to the Department’s records, the children “seemed glad to see their father and he was especially pleased to see them.” The case worker’s notes also indicated that the children “seemed to know [appellant] but they didn’t appear greatly bonded to him.” According to the Department’s records, appellant called the Department in January, March, May, and October of 1995 to ask about the children.

In two of these calls, appellant said he opposed the Department’s decision to terminate his parental rights. During the October call, appellant asked if he could visit with his children. The Department then arranged for two visits at the prison prior to appellant’s release on December 15,1995. As to the visit in November 1995, Dean testified ⁹⁵ that the children “seemed a little sad at the end of the visit, a little confused.” After his release from prison on December 15, 1995, appellant maintained monthly, one-hour visits with his children at the Department.

Dean testified that, during these visits, which also served as a sibling visit involving all four children, the children were happy to see appellant and they interacted openly. Nevertheless, after appellant’s release from prison, the Department did not offer reunification services to appellant. Dean testified that, because the Department’s plan was not to return the children to appellant, she was limited in what services she could offer to him. On February 29, 1996, however, the Department offered a service agreement to appellant.

According to Dean, appellant refused to sign the agreement because it included a provision that he enroll in drug counseling. On March 12, 1996, the Department offered a second, six-month service agreement to appellant that omitted the drug counseling provision. Appellant accepted this agreement. The only specific service provided under the agreement, however, was to “[r]efer [appellant] and/or assist him in locating adequate housing.” Dean testified that she contacted the housing department and asked about the application process.

She then wrote a letter to appellant informing him that he had to apply in person for housing assistance. The letter also included information as to where and when he should apply. Under the service agreement, appellant agreed to “obtain stable housing” and to present the Department with a plan of how he will make financial provisions to support his children. Dean testified that she did not refer appellant to employment counseling because appellant told her he had completed his GED and was searching for a job.

She did, however, suggest that appellant visit the unemployment office and look at the want ads in the newspaper. Further, Dean said that she did not refer appellant for public assistance because the children were not in appellant’s care. ⁹⁶ Dean then explained the significance of the service agreement, in light of the Department’s decision to proceed with adoption: [APPELLANT’S COUNSEL]: Why did you enter into a reunification service agreement with [appellant]? [DEAN]: We entered into the agreement so that [appellant] would have an opportunity to show in court today his seriousness about getting his children back in his care. However, I specified in the agreement that our plan was still adoption and that this was basically — a decision to change that plan would be made today because— [APPELLANT’S COUNSEL]: Do you think [appellant] is serious about having his children returned to him? [DEAN]: I do not know. [APPELLANT’S COUNSEL]: You’ve had an opportunity to have discussions with [appellant] since you were involved in the case and you’ve worked with other children and other families. In your opinion, is he serious?

Is there some kind of genuineness there? [CHILDREN’S COUNSEL]: Objection. THE COURT: Overruled. [DEAN]: I don’t know if he is serious about having his children returned to him and understanding exactly what it means to take care of small children, as I don’t know if he ever has with these particular children. Appellant testified that, around the time he and Sonya B. became separated, he had obtained work through a temporary agency, but that he had earned no more than $30 per day. He acknowledged that he had overslept for work as many as five days per month.

Appellant also admitted that, in 1990, he had been “deeply involved in selling drugs.” In addition, appellant stated that he applied for eight jobs since his release from prison, three within two weeks of the evidentiary hearing in this case. Among the jobs was that of a truck driver, although appellant admitted that he did not possess, and had not applied for, a driver’s license. Finding ⁹⁷ employment was also a condition of appellant’s parole. Until he obtained employment, appellant said that he would apply for public assistance.

Appellant also testified that he applied for public housing within a week prior to the termination hearing, and he priced rental housing in Northeast Baltimore. At the time of the hearing on May 22 and 23, 1996, appellant lived with his sister in Baltimore. At the close of the hearing, the trial court concluded that there was clear and convincing evidence to support the Department’s petitions to terminate appellant’s parental rights. In announcing its decision, the court also considered the position of court-appointed counsel for Marques and Marcus, who supported the Department’s position.

On November 17, 1997, in response to a motion filed by the Department, we issued an Order remanding the case to the circuit court for specific findings of fact, in light of our opinion in In re Adoption/Guardianship No. 95195062/CAD, 116 Md. App. 443 , 696 A.2d 1102 (1997). On December 15, 1997, the circuit court held a hearing and issued a supplemental memorandum, affirming its earlier decision to terminate appellant’s parental rights. In our order, we permitted the parties to submit memoranda to address the court’s supplemental opinion. We will include additional facts in our discussion.

Discussion A. Maryland courts and the Supreme Court of the United States have long recognized 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); see also In re Adoption/Guardianship No. 95195062, 116 Md.App. at 454 , 696 A.2d 1102 . In Walker v. Gardner, 221 Md. 280 , 157 A.2d 273 (1960), the Court of Appeals explained: ⁹⁸ [A]doption 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. Id. at 284 , 157 A.2d 273 . Nevertheless, the best interest of the child is paramount. In re Adoption/Guardianship No. 3598, 347 Md. 295, 323-24 , 701 A.2d 110 (1997); In re Adoption/Guardianship No. 10941, 335 Md. at 113 , 642 A.2d 201 .

Accordingly, Md.Code (1984, 1991 Repl.Vol., 1997 Cum.Supp.), § 5-313(a) of the Family Law Article (“F.L.”) provides: “A court may grant a decree of adoption or a decree of guardianship, without the consent of a natural parent [only] ... 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 th[at] child____” The burden of proof required by the clear and convincing evidence standard is “greater than the usually imposed burden of proof by a fair preponderance of the evidence, but less than the burden of proof beyond a reasonable doubt imposed in criminal cases.” Berkey v. Delia, 287 Md. 302, 318 , 413 A.2d 170 (1980) (quoting Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871 , 330 N.E.2d 161 (1975)); see also 1986 Mercedes Benz v. State, 334 Md. 264, 283 , 638 A.2d 1164 (1994). The evidence “ ‘should be “clear” in the sense that it is certain, plain to the understanding, and unambiguous and “convincing” in the sense that it is so reasonable and persuasive as to cause [one] to believe it.’ ” Wills v. State, 329 Md. 370 , 374 n. 1, 620 A.2d 295 (1993) (alteration in original) (quoting Maryland Civil Pattern Jury Instructions 1:8b (1984)). In order to determine what is in a child’s “best interest,” the trial court must analyze and consider the criteria outlined in ⁹⁹ F.L. § 5-313. In the case of In re Adoption/Guardianship No. 87A262, 323 Md. 12 , 590 A.2d 165 (1991), the Court •recognized the importance of specific consideration by the trial court of all the statutory factors.

It said: “In cases where parental rights are terminated, it is important that each factor be addressed specifically not only to demonstrate that all factors were considered but also to provide a record for review of this drastic measure.” Id. at 19-20 , 590 A.2d 165 ; see also In re Adoption/Guardianship No. 95195062, 116 Md.App. at 457-61 , 696 A.2d 1102 . F.L. § 5~313(c) 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; (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; ¹⁰⁰ (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. The trial court also must address the provisions of F.L. § 5-313(d) when, as here, the child has previously been adjudicated CINA. In particular, § 5-313(d) requires the court to determine whether: (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; (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____ This section is satisfied if any one of these conditions exists.

In re Adoption No. 09598, 77 Md.App. 511, 526 , 551 A.2d 143 (1989); see also In re Adoption/Guardianship Nos. CAA9210852 and CAA92-10853, 103 Md.App. 1, 28-29 , 651 A.2d 891 (1994). ¹⁰¹ On review, we must ascertain whether the trial court considered the statutory criteria, whether its factual determinations were clearly erroneous, whether the court properly applied the law, and whether it abused its discretion in making its determination. See In re Adoption/Guardianship No. 3598, 347 Md. at 311 , 701 A.2d 110 . What the Court said in In re Adoption No. 09598, is pertinent here. [O]ur function, in reviewing [the trial court’s] findings, 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 [trial court’s] determination that it would be in the best interest of [the child] to terminate the parental rights of his natural father. 77 Md.App. at 518 , 551 A.2d 143 ; see also In re Adoption/Guardianship Nos. 2152A 2153A 2154A 100 Md.App. 262, 270 , 641 A.2d 889 (1994).

B. First, we must consider whether the trial court sufficiently complied with our order of November 13,1997, instructing the court to supplement the record with “a statement from the circuit court setting forth the court’s ruling with respect to each statutory factor upon which each underlying petition is based.” In response to our order, the trial court held a hearing on December 15, 1997, and issued a supplemental memorandum. The supplemental memorandum sets forth F.L. § 5-313(c) and (d) and discusses each element of the statutory criteria as they apply to Marcus and Marques. We