In Re Jessica M.

ALPERT, Judge. In this case, the mother of two children determined to be in need of assistance appeals an award of custody to foster parents who intend to leave America for three years. In July, 1984, police officers in Baltimore City found three children alone and unsupervised. The children included Joseph M., about three months old, and Jessica M., about eighteen months old.

They were placed in emergency shelter care. On October 3, 1984, the Baltimore City Department of Social Services (BCDSS) filed petitions alleging that Joseph and Jessica were children in need of assistance. The petitions alleged, inter alia, that appellant, Rosemary H., their mother, was unable to provide adequate care for the children due to her use of drugs. In November, the children were placed in foster homes pending an adjudicatory hearing.

At that hearing, held January 30, 1985, Jessica and Joseph were found to be children in need of assistance (CIÑA) and were continued in shelter care pending a disposition hearing. 1 Soon thereafter, the children were placed in the home of appellees Edward and Mary P. (hereinafter “the foster parents”). ¹⁰ On April 3, 1985, a disposition hearing was held. The master recommended that the children be committed to BCDSS and recommended conditions concerning counselling for the children’s mother, care for the children, and visitation. On April 30 of the following year, a review hearing was conducted during which the children’s father signed a stipulation placing Jessica and Joseph with the foster parents.

The stipulation disclosed the foster parents' plans to move to England for a three-year period and included an agreement that they would not file for adoption while in England but would institute those proceedings only in Maryland. The children’s mother did not attend this hearing, nor did she sign the stipulation. The circuit court incorporated the provisions of the April 30 stipulation in an order dated May 15, 1986. That order was vacated pending a hearing on exceptions subsequently filed by the children’s mother.

On May 28, 1986, a de novo hearing on those exceptions was conducted in the Circuit Court for Baltimore City. The court received substantial evidence of the relative fitness of the children’s mother and of the foster parents to care for Jessica and Joseph. 2 At the conclusion of the hearing, the court overruled the mother’s exceptions. The court’s order, dated June 5, 1986, granted custody and guardianship of the children to the foster parents and allowed visitation to the mother “under reasonable circumstances given that [the foster parents] may be residing outside the Continental United States.” We are called to answer these questions: 1. Whether the juvenile court abused its discretion by awarding custody and guardianship of appellant’s children to foster parents the court knew to be leaving the country? ¹¹ 2.

Whether the juvenile court lacked jurisdiction to issue the June 5, 1986 custody order? 3. Whether the juvenile court was required to state its reasons for placing Jessica M. and Joseph M. in the custody of the foster parents pursuant to Rule 915b? 1. Visitation Appellant asserts that the June 5th order allowing her “visitation under reasonable circumstances” is illusory because the foster parents intend to leave the country with Jessica and Joseph. While appellant agrees that the children are better off with the foster parents for the time being, she contends that the anticipated move overseas, coupled with her indigency, will effectively terminate her right to visitation.

That termination, she argues, constitutes an abuse of discretion. The record demonstrates the absolute indigency of the children’s mother. She has been unemployed since 1984 and has depended on theft and charity for income. Relatives with money have displayed an unwillingness to provide any support to appellant.

While the foster parents have made vague promises to assist the mother in exercising her visitation rights, they are under no compulsion to do so. Clearly, the mother cannot afford to travel to England. While Jessica and Joseph are in England (and despite appellees’ representations to the court, the length of that stay cannot be certain), the mother will have no in-person contact with her children. Appellant’s financial incapacity to visit Jessica and Joseph in England notwithstanding, she will be able to write, to call and perhaps, to send audio or video tape recorded messages to her children.

When the children return, in-person visitation can resume. Thus, we do not agree with appellant that the court’s order precludes all visitation. The order does, however, severely limit the extent and nature of her contact. We shall now consider whether such a limited right of visitation constitutes an abuse of discretion under the circumstances of this case. ¹² The court below awarded temporary custody to the foster parents pursuant to section 3-820(c)(l) of the Courts Article, which reads: In making a disposition on a petition, the court may [] [p]lace the child ... in the custody or under the guardianship of a relative or other fit person, upon the terms the court deems appropriate[.] Md.Cts. & Jud.Proc.

Code Ann. § 3-820(c)(l) (1984). The court exercises its discretion in making a disposition pursuant to § 3-820(c) and its disposition will not be vacated absent an abuse of that discretion. See In Re David K., 48 Md.App. 714, 720-21 , 429 A.23d 313 (1981) (decided under former codification). In awarding custody, the court is called to serve the following goals: To provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle; and to provide for a program of treatment, training, and rehabilitation consistent with the child’s best interests and the protection of the public interest; To conserve and strengthen the child’s family ties and to separate a child from his parents only when necessary for his welfare or in the interest of public safety; If necessary to remove a child from his home, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents[.] Md.Cts. & Jud.Proc.

Code Ann. § 3-802(a) (1984) (emphasis added). In Montgomery County v. Sanders, 38 Md.App. 406 , 381 A.2d 1154 (1978), we articulated ten criteria to guide courts in discovering the advantages and disadvantages of separating a child from his parents when awarding custody. Although we confronted a petition to modify custody in Sanders , its criteria are equally helpful when searching for the ¹³ best interest of a child in making an original custody award. The criteria are: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health and sex of the child; (8) residences of parents and opportunity for visitation; (9) length of separation from the natural parents; (10) prior voluntary abandonment or surrender. 38 Md.App. at 420 , 381 A.2d 1154 (citations omitted).

As to the fitness of appellant, evidence adduced below demonstrates that she is now completely unable to care for these children. Indeed, she admitted as much to the chancellor. About her character and reputation, it is sufficient to state that her criminal record includes drug and prostitution related convictions. Proof of the foster parents’ characters and reputations was not offered below.

Although there is no agreement between the parties, appellant desires that the foster parents retain custody of her children until she can get her “act together.” (It is the location of that custody to which she objects.) The potential for maintaining “natural family relations” is bleak: appellant admits that she is financially and emotionally unable to fill the obligations of motherhood. The children are too young to express a preference. The foster parents are able to provide greater material opportunities affecting the future life of the children. The health of both children has improved since being removed from their parents and being placed with their foster parents.

Jessica and Joseph have been separated from their mother for most of their young lives: they were 3 months and 18 months old, respectively, when placed in emergency care; the order we now review was ¹⁴ entered two years later. During that time contact between mother and children was infrequent due, in part, to financial limitations and apparently, in part, to appellant’s lack of resolve. The eighth factor articulated in Sanders is the difficult question in this case. We have already indicated that the foster parents’ intended move to England, coupled with appellant’s poverty, will limit the opportunities for visitation.

This fact must weigh against a decision to award custody to the foster parents. Nevertheless, in light of the overwhelming evidence that appellant is now completely unfit to care for these children and unable to enlist the help of relatives or friends in that effort, we cannot say that the chancellor’s decision constitutes an abuse of discretion. Evidence offered below suggests that the foster parents have and will provide a stable, healthy and safe environment for the children. Cases involving disputes between natural parents recognize that a custodial parent may take a child out of the country notwithstanding resulting restrictions to the noncustodial parent’s visitation