L.F.M. v. Department of Social Services

WENNER, Judge. Upon this appeal we are asked to decide whether, following a termination of parental rights and the placement of a ³⁸¹ child into a confidential prospective adoptive home, the natural grandparents have standing to petition for visitation. Background The children involved in this appeal are twin boys, who were born on May 1, 1983, to C.W. and her husband, G.W. In December of 1983, when they were seven months old, the children were removed from the home of their natural parents by appellee, Baltimore County Department of Social Services (BCDSS) following allegations of abuse and neglect. They were adjudicated by the Circuit Court for Baltimore County to be children in need of assistance and placed in a foster home.

Their parents received counseling and visited the children while they were in foster care. In July of 1984, the parents asked BCDSS to place the children for adoption after C.W. admitted striking one of them. The parents had apparently come to the conclusion that they were overwhelmed and were unable to cope with the demands of rearing the children. Although C.W.’s sister had offered to adopt them, the parents felt that adoption into an unknown family would be best for the children.

On July 26, 1984, BCDSS filed petitions, in the Circuit Court for Baltimore County, for guardianship with the right to consent to the adoption of the children. The petitions were consented to by both parents. On the following day, the court named BCDSS guardian of the children with the right to consent to their adoption, and both children were placed in the same prospective adoptive home shortly thereafter. E.M. is the paternal grandmother of the children.

She and her husband, L.F.M., are the appellants. 1 They claim to have developed a warm and loving attachment to the children through a series of visits with them which began at ³⁸² their birth and continued through a part of the time when they were in foster care. On May 1, 1984, E.M. celebrated the children’s first birthday with them at the home of their maternal grandmother. That was the last time that either of the appellants saw the children. Visitation was halted by the foster mother, who felt that visitation by both sets of grandparents had become “too much.” According to appellants, despite their repeated telephone calls to BCDSS regarding visitation, BCDSS did nothing to promote visitation between appellants and the children; nor did BCDSS inform them of the guardianship proceedings.

E.M.’s son told her in late July or early August of 1984 that adoption proceedings were underway. Appellants’ attorney contacted BCDSS and requested a meeting between BCDSS, the appellants, and the prospective adoptive parents to determine whether visitation with appellants would be in the children’s best interests. In November of 1984, after BCDSS had rejected this proposal, appellants filed a petition in the Circuit Court for Baltimore County seeking visitation with the children. In their petition they alleged that under the grant of jurisdiction to the equity courts contained in Md.Code Ann., Fam.

Law, § 1-201 (1984), the court was empowered to order grandparental visitation. BCDSS opposed the petition. It argued, inter alia, that appellants had no right to seek visitation with the children under the Maryland adoption statutes, Md.Code Ann., Fam. Law, §§ 5-301 et seq.

(1984). The prospective adoptive parents were granted leave to intervene using the names John and Mary Doe. They took the position that: the natural parents had voluntarily consented to the termination of their parental rights; BCDSS, the children’s legal guardian with the right to consent to their adoption, had advised the Does that it would consent to their adoption of the children; the Does intended to file petitions for adoption in January of 1985; the Does wanted to maintain the confidentiality and anonymity of the adoptions; and that neither the Does nor BCDSS believed visita ³⁸³ tion by the appellants was in the children’s best interests. 2 Counsel was appointed by the court to represent the children. Counsel for the children did not object to a hearing on the issue of whether visitation would be in their best interests. 3 In early January of 1985, C.W. wrote a letter to the court in which she stated that she and her husband felt that they had been manipulated into consenting to the adoption of their children, that they deeply regretted their decision, and that they wanted the children returned to them.

Their letter was treated by the court as a petition to intervene and a motion to vacate the guardianship order. Appellants then filed a motion to vacate the guardianship order in which they alleged that the granting of the guardianship with the right to consent to adoption without adequate notice to them, had deprived them of a protected liberty interest without due process of law. More specifically, they asserted that the notice provision contained in Md.Code Ann., Fam. Law, § 5-322 (1984), was unconstitional in that it failed to require that notice of the guardianship proceedings be given to them.

The Attorney General was permitted to intervene on behalf of the State of Maryland, pursuant to Md.Code Ann., Cts. & Jud.Proc. § 3-405(c) (1984), to defend the constitutionality of Family Law Article, § 5-322. In March of 1984, a hearing was held by the court (Jacobson, J.). In a bifurcated proceeding, the court first heard testimony concerning the consent of the natural parents to the termination of their parental rights. After ³⁸⁴ finding that the parents had given knowing, voluntary and informed consents, the court denied their motion to vacate the guardianship order. 4 The court then heard arguments from the remaining parties as to the propriety of appellants’ motion.

After considering those arguments, the court concluded that appellants lacked any constitutional or statutory basis upon which to seek visitation with the children, declined to hear testimony on the merits of appellants’ petition, denied appellants’ motion to vacate the guardianship order, and dismissed their petition for visitation. It is from that order that this appeal was taken. Issues Presented The questions presented to us, as framed by the appellants, are: 1. Did the lower court err in. dismissing appellants’ petition because both before and after the lower court’s decree which terminated parental rights, appellants were entitled to an opportunity to be heard as to visitation with their grandchildren; 2.

Were the grandparents’ rights under the Due Process clause of the United States Constitution and the Maryland Declaration of Rights violated by the termination of parental rights by judicial action on July 27, 1984, without any notice to the grandparents? If such was premised upon Md.Code Ann., Family Law, Section 5-322 (1984), was such statute unconstitutional; and 3. Alternatively, even if issues 1 and 2 are answered in the negative, is it in the best interest of appellants’ grandchildren that all interested parties, including appellants, be heard on the merits of visitation and the permanent plan for the grandchildren? ³⁸⁵ For reasons which we will later explain, our answer to the first two questions is no. As we do not believe that Maryland law provides a mechanism through which a court can hear the merits of a petition for visitation by “all interested persons, including [grandparents]” in a case involving the termination of parental rights followed by an adoption by strangers, we will also answer no to the third question. 1. and 2.

We view appellants’ first two arguments as essentially the same. They contend that, as grandparents, they have a constitutionally protected right under the due process clause of the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights to visit their grandchildren; and that, therefore, they were entitled to notice and an opportunity to be heard before their grandchildren were placed under the guardianship of BCDSS with the right to consent to their adoption. They claim that Md.Code Ann., Fam. Law, § 5-322 (1984) 5 is unconstitutional because it fails to re ³⁸⁶ quire that notice of state action be given to them, as grandparents who had been exercising their grandparental right of visitation.

We disagree. Appellants assert that “[a]bsent abuse or parental objection, the right to maintain a relationship of love with one’s flesh and blood, whether the ... love of a parent for a child or ... grandparental love of a grandchild, is firmly recognized in Maryland law.” Appellants cite no authority for this proposition, and we have found none. Indeed, implicit in that very statement is the recognition that the source of grandparental visitation is parental permission, and this had been the historical rule. At common law, grandparents had no legal right to visit or communicate with their grandchildren if to do so was forbidden by the parents.

See 59 Am.Jur.2nd, Parent and Child § 92. While it appears that prior to the termination of their parental rights, C.W. and G.W. had not objected to visitation between the appellants and their children, once their parental rights had been terminated the parents were no longer in a position to grant “visitation rights” to the appellants. We do not question the sincerity or the depth of the affection that appellants feel for their grandchildren. That affection, however, simply does not translate into a constitutionally protected liberty interest.

It is true that “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 , 94 S.Ct. 791, 796 , 39 L.Ed.2d 52 (1974) (citations omitted). This “family life” liberty interest has been recognized most frequently within the context of husband-wife or parent- ³⁸⁷ child relationships. E.g., Stanley v. Illinois, 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972); Loving v. Virginia, 388 U.S. 1 , 87 S.Ct. 1817 , 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965); Armstrong v. Manzo, 380 U.S. 545 , 85 S.Ct. 1187 , 14 L.Ed.2d 62 (1962); Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed.2d 1070 (1925). In some cases the “family life” interest has been recognized in relationships other than those of husband-wife or parent-child.

See, e.g., Moore v. East Cleveland, 431 U.S. 494 , 97 S.Ct. 1932 , 52 L.Ed.2d 531 (1977) (a grandmother and two grandsons); Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438 , 88 L.Ed. 645 (an aunt and her niece). The United States Supreme Court, in a decision regarding the rights of foster parents, has suggested that foster parents may have a limited constitutional “liberty” interest in the foster family. Smith v. Offer, 431 U.S. 816, 843-46 , 97 S.Ct. 2094, 2109-10 , 53 L.Ed.2d 14 (1977). In each of the cases we have examined, however, which extended the “family life” liberty interest beyond the marital or parent-child relationship, the petitioning party had had, at some point, either actual or legal custody of the child or children involved.

Appellants in this case have never had, or sought, custody of their grandchildren. They seek only to continue visitation with them and we have found no authority to suggest that the visitation appellants enjoyed prior to May 1, 1984, was a constitutionally protected liberty interest. 6 ³⁸⁸ Because appellants lack a constitutionally protected liberty interest in visitation with their grandchildren, we hold that Family Law § 5-322 is not unconstitutional in that it failed to require that notice of the pending guardianship proceeding be given to them. 7 3. Appellants argue alternatively that, under Maryland statutory law, the court was empowered to award them visitation if it determined that to do so would be in the children’s best interests. As authority for this proposition they point to the broad language of Md.Code Ann., Fam.

Law, ³⁸⁹ § 1-201, which defines the jurisdiction of equity courts and which specifically provides that “[a]n equity court has jurisdiction over ... visitation of a child.” As additional authority they cite former Md.Code Ann., Cts. & Jud.Proc. § 3-602(4) (1984), which provides in pertinent part: At any time following the termination of a marriage, the court may consider a petition for reasonable visitation by one or more of the grandparents of a natural or adopted child of the parties whose marriage has been terminated, and may grant such visitation if the court believes it to be in the best interests of the child[.] 8 This statute was originally enacted by Ch. 276, Laws of 1981. Both this court and the Court of Appeals have recently had occasion to examine the history and the legislative intent of this enactment. In Skeens v. Paterno, 60 Md.App. 48 , 480 A.2d 820 , cert. denied, 301 Md. 639 , 484 A.2d 274 (1984), the lower court had awarded liberal visitation to the father of a child born out-of-wedlock, and provided in the decree that while the father was overseas on Navy duty his parents could exercise his right to visit with the child. The child’s mother and her parents appealed.

They argued that the grandparental visitation awarded in the decree was not permitted by Maryland law. They took the position that Section 3-602 limited court authorized grand-parental visitation to situations in which a marriage had been terminated. After reviewing the history of Ch. 276, Laws of 1981, we affirmed the judgment of the lower court. Judge Adkins, writing for this court, held that Section 3-602 did no more than restate existing law as to grandpa-rental visitation in the context of the termination of a marriage; it did not limit the power of a court to grant custody and visitation to grandparents under other circumstances.

Id. at 61, 480 A.2d 820 . We said further that: It may well be ... that custody shall be granted to a grandparent (as against a parent) only under exceptional ³⁹⁰ circumstances. That may also be true as to grandparental visitation ... But here [the father’s] absence on naval duty constituted such a circumstance.

While he was away, an important way for him to maintain contact with the child—and for the child to maintain contact with the paternal side of his family—was through [the father’s] parents. Id. (citations omitted). In other words, although the paternal grandparents would surely develop their own relationship with their grandchild, the “rights” that they were exercising were those of their son, the child’s father, to maintain contact with his child.

In Evans v. Evans, 302 Md. 334 , 488 A.2d 157 (1985), the Court of Appeals held that language of Section 3-602 did not limit the class of individuals entitled to seek visitation rights to only biological parents, adoptive parents and grandparents. In Evans , as part of a divorce proceeding, the trial court had awarded visitation to a non-adoptive stepmother who had lived with and cared for the child for over five and one-half years, beginning when the child was eighteen months old. On appeal, this court, in an unreported opinion, vacated that part of the decree which granted visitation to the child’s stepmother. The Court of Appeals reversed.

It held that the trial court was empowered to grant visitation to other categories of persons than grandparents, parents or adoptive parents, and remanded the case to this court to review the trial court’s determination that visitation with the stepmother would be in the best interest of the child. In the case sub judice, however, we do not believe that the grandparental visitation statute and the cases decided under it can be read apart from the Maryland Adoption statutes. 9 Statutes which grant visitation to grandparents ³⁹¹ are of relatively recent vintage. See generally, Note, Statutory Visitation Rights of Grandparents: One Step Closer to the Best Interest of the Child, 26 Catholic U.L.Rev. 377 (1977). Adoption statutes are much older.

Adoption has been defined as the means by which the legal relationship of parent and child is created between those not related as such by nature. 2 Am.Jr.2d, Adoption § 1. Adoption was unknown to the common law and exists in the Anglo-American system of jurisprudence only by virtue of statute. Winter v. Director of the Department of Welfare of Baltimore City, 217 Md. 391 , 143 A.2d 81 , cert. denied, 358 U.S. 912 , 79 S.Ct. 242 , 3 L.Ed.2d 233 (1958). Maryland has provided a statutory scheme for adoption for almost a century, ever since the enactment of Ch. 244, Laws of 1892. 10 That statute was enacted with no statement of purpose, and appears to have been primarily concerned with the effect of adoptions on inheritance and distribution of estates.

The 1892 Act did provide that “[t]he effect of [a] decree of adoption shall be to entitle the child so adopted to ... the same rights of protection, education and maintenance as if born to [the adopting parent] in lawful wedlock, and the natural parents of such child shall be freed from all legal obligations toward it____” The 1892 Act remained in effect without substantial change for more than 50 years. In 1945, a commission was appointed to study the Maryland adoption laws. In 1947, acting upon the recommendation of the commission, the General Assembly substantially revised and up-dated the adoption laws with the enactment of Ch. 599, Laws of 1947. See generally, Strahorn, Changes Made by the New Adoption Law, 10 Md.L.Rev. 20 (1949). ³⁹² The statute as enacted was almost identical to the statute proposed by the commission.

See, Report of the Commission to Study Revision of Adoption Laws of the State of Maryland, Baltimore Daily Record, June 1, 1946. Ch. 599, Laws of 1947, began with a statement of legislative policy which, for the first time, acknowledged the need for protection of . the familial integrity of the adopting parents as well as the protection of the natural parents and of the child: The General