Scott v. Prince George's County Department of Social Services

ROSALYN B. BELL, Judge. Martine Scott appeals a decision of the Circuit Court for Prince George’s County which terminated all her legal rights as the parent of John and Lilly Scott, twins born to Ms. Scott on November 25, 1980. On June 4, 1987, the circuit court, pursuant to Md.Fam.Law Code Ann. § 5-313 (1984), granted the Prince George’s County Department of Social Services’ (Department) petition to terminate Ms. Scott’s rights, finding that the Department proved by clear and convincing evidence that it was in the twins’ best interest that all legal and physical ties to their natural mother be severed. 1 We affirm the circuit court’s decision. ³⁶³ Ms. Scott presents us with three issues to resolve. Specifically, she contends: —She was denied due process of law because, contrary to the doctrine of res judicata and/or collateral estoppel, the trial court considered evidence from an earlier unsuccessful termination of parental rights trial to meet the constitutionally required level of clear and convincing evidence. —She was denied her due process right to a fair trial because of the cumulative adverse effect of several erroneous evidentiary rulings. —She was denied due process because the evidence did not support the trial court’s determination that it was in the best interest of her children to terminate her parental rights. —Background— Martine Mwenda (Martine Scott)* 2 met Ronald Lewis Scott, the twins’ father, in 1978.

Martine Scott turned out to be a lady of mystery, apparently connected to several foreign embassies. Their relationship blossomed during 1978, 1979 and 1980, with Ronald Scott dividing his time between his wife and Martine Scott. Martine Scott, a frequent traveler, often left the country for trips to Europe and Africa. She appeared to have an unknown and unlimited source of income and used several different names and birth dates.

In 1979, Martine Scott, pregnant with Ronald Scott’s unborn son, Ronald, Jr. left the United States. She returned in 1980, informing Ronald Scott that she had left Ronald Jr. with her mother in either Belgium or Africa. ³⁶⁴ In 1980, the relationship between Ronald Scott and Mar-tine Scott grew troubled and, according to Ronald Scott, interspersed with frequent fights and Martine Scott’s trips abroad. On November 25, 1980, John and Lilly, twins, were born to Martine Scott. 3 After the birth of the twins, Ronald Scott was an infrequent visitor at Martine Scott’s household, but had visited enough to form the opinion that her mothering efforts were careless and sporadic. He also stated that Martine Scott was never satisfied with any of the live-in baby-sitters she had hired.

She supported the twins (and for a time Ronald Scott) from an unknown source of income, leading him to believe that her occupation had something , to do with the Embassies of Zaire and/or Cameroon since she attended many of their social functions. 4 Ronald Scott stated that Martine Scott was frequently away from home, and wanted only to hire the cheapest baby-sitter she could find. She also practiced what Ronald Scott termed “witchcraft”. 5 On January 28, 1981, Martine Scott, angry with Ronald Scott’s lack of interest in the twins, took the infants to his job and left them with him. He took them to the personnel office, indicating that he had no idea who they were. 6 The ³⁶⁵ police were called and the twins were turned over to the Department. After a hearing on January 30, 1981, the Prince George’s County Juvenile Court committed the infants to the Department’s care.

The Department placed them in a temporary foster home. On February 17, 1981, the Department returned the twins to Ms. Scott, but continued to provide some assistance. 7 In June 1981, the Department closed the case, finding that the children were not at risk. Martine Scott refused the Department’s offer of further aid. Later that summer, the Department received reports that Martine Scott had left the infants in a hot car.

Near the end of August, apparently angry at the local health department for removing her from its needy families assistance program, 8 Martine Scott deposited the infants at the local health department. She did retrieve the infants a short time later, and while there, intentionally struck one of the local health department workers. The Department reopened the case. On February 19, 1982, Martine Scott called the Department and asked that it remove the twins from her home.

The social worker arranged to visit Martine Scott to discuss her problems. On February 24, Ms. Scott called the Department and stated that she had left the children unattended and that the house key was in the mailbox. A social worker called the police and the twins were removed from the home. The Department sheltered the twins overnight, and after a hearing the juvenile court returned the twins to Ms. Scott.

The juvenile court also ordered a psychiatric evaluation of Ms. Scott, which was begun in March by Dr. Joseph ³⁶⁶ Poirier. 9 On April 22, 1982, the children were again taken by the Department after a C & P Telephone Company employee heard the twins crying. This employee called the police, who found the toddlers unattended, eating food from the floor and wearing extremely dirty diapers. The police also found a large quantity of marijuana in the house and arrested Martine Scott when she arrived home. The juvenile court returned the twins to her in May with the understanding that Martine Scott, who was an illegal alien, would be leaving the country pursuant to a plea bargain in a federal drug case.

Ms. Scott was to take the children to Zaire where she had family. On October 1, 1982, a Prince George’s County deputy sheriff went to Ms. Scott’s home to serve her with an arrest warrant. He found the twins naked and in the care of a young girl who spoke no English. The house held no food, and Ms. Scott could not be found.

The juvenile court once again placed the children in foster care. The Department attempted without success to locate either Ms. Scott or a family member through the Zairian Embassy. In March of 1983, the Department placed the children with a potential adoptive couple. 10 In August of 1983, having received no word from Martine Scott, the Department filed a petition for guardianship and termination of parental rights, pursuant to Md.Fam.Law Code Ann. § 5-313. A month after filing the petition, the Department received a letter from Ms. Scott dated April, 1983, apparently mailed from Paris, France.

Ms. Scott wrote that she was unable to return to the United States, and requested that the twins be sent to her. The Department wrote to Ms. Scott, informing her that her children ³⁶⁷ were being considered for adoption. She replied that she was returning to the United States and that the children were not to be so placed. The Department remained unaware of Ms. Scott’s whereabouts until January of 1984, when she was arrested and jailed in Prince George’s County for alleged narcotics violations.

While Martine Scott was jailed, the Department made efforts to sustain her maternal relationship with the twins. Ms. Scott did not cooperate in any of these efforts. She refused to disclose the names and addresses of any relatives who could serve as potential foster parents, demanding instead that the children be returned to her. 11 The Department arranged visitation with the children until Ms. Scott was transferred to a District of Columbia prison. 12 She then told the Department to arrange no further visits. She wrote physically threatening letters to the social worker resulting in the social worker’s request to be removed from the case. —First Trial— In early January of 1985, the Circuit Court for Prince George’s County heard the Department’s petition to terminate Martine Scott’s parental rights, which had been filed by the Department in August of 1983.

Martine Scott had been missing for at least nine months. She was able to visit with the four-year-old twins at the courthouse and at the jail. During the trial, she wrote a letter to the trial judge, accusing him of engaging in sexual improprieties with her. On February 4 the circuit court denied the Department’s petition to terminate Ms. Scott’s parental rights.

The trial court, however, issued an order, stating, “I have read all ³⁶⁸ these records, and unless this lady gets her act together, she will never get these children back.” The trial court ordered Ms. Scott to engage in private psychological therapy, to disclose her mother’s address so that the Department could investigate a possible relative-placement for the twins, to reveal the names and addresses of other family members in Zaire who might serve as potential placements, to maintain contact with the children and the Department, to execute a service agreement 13 with the Department, and, in general, to cooperate with the Department. The Department was ordered to help arrange and pay for Ms. Scott’s private psychological therapy and the twins’ psychological counselling, to investigate possible placements with blood relatives, to ascertain Ms. Scott’s immigration status, to arrange visits between Ms. Scott and the children, and to ensure that communications from Ms. Scott reached the children. The Department assigned a new social worker to the case—the new social worker had a reputation of being an easy person with whom to get along. It was the Department’s hope that this worker would be able to succeed where the others had failed.

Pursuant to the court order, the Department had prepared a service agreement and had sent a copy to Martine Scott’s attorney at the time, so that he could review the agreement in advance with his client. At the social worker’s first visit, Martine Scott became very upset when presented with the service agreement and threatened to shoot and/or kill the social worker. The Department also presented Martine Scott with a list of all area licensed therapists. The social worker suggested that perhaps Ms. Scott could choose one with her attorney’s help, in accordance with the trial court’s order.

She ada ³⁶⁹ mantly refused to select a therapist. She refused to reveal the name and address of her mother. 14 She did not communicate regularly with her children. In fact, Martine Scott refused to discuss any of the provisions of the trial court’s order with the Department. Because Martine Scott refused to take any steps toward fulfilling the trial court’s order, the Department concluded there was no prospect that she would ever cooperate with them.

The Department filed a second petition to terminate Ms. Scott’s parental rights in March of 1986. —Second Trial— The trial on the second termination proceeding lasted 22 days. Many of the facts presented by the Department in this trial had been presented at the first trial but to a different judge. The trial court at the second trial admitted this evidence because a complete understanding of what had occurred after the denial of the first petition could only be gained by considering what had preceded the petition. In other words, the court allowed the evidence of events from before the first termination trial in order to have a context for subsequent events.

The trial court stated: “[T]he special nature and circumstances of the case presently before it is of such a high magnitude that the entire case must be heard in order that the context in which these events transpired may be properly presented and addressed. Failure to do so would be misleading to the trier of fact in its determination of what is in the best interests of these twins. The Court cannot and will not address these issues in a time-encapsulated vacuum.” At the conclusion of the second trial, the Court granted the Department’s petition to terminate Ms. Scott’s parental rights. ³⁷⁰ CONSTITUTIONAL GUARANTEES —Burden of Proof— We are asked to determine whether appellant was denied constitutional due process when her parental rights were terminated at the second trial. Specifically, appellant contends that the trial court, contrary to the doctrine of res judicata, erroneously allowed the Department to use evidence from the first trial to meet its burden of proof in the second.

We hold that the trial court was not prevented by the doctrine of res judicata from using this evidence to meet the constitutionally required clear and convincing level of proof. We do not hold today that res judicata could never apply to successive termination actions, but rather that here the new evidence showed changed circumstances which justified a changed result. We begin our explanation by examining due process guarantees in the context of termination of parental rights. Freedom of personal choice in family life matters is a fundamental liberty interest protected by the Fourteenth Amendment of the United States Constitution.

Santosky v. Kramer, 455 U.S. 745, 753 , 102 S.Ct. 1388, 1394 , 71 L.Ed.2d 599 (1982). This interest has long been recognized by the United States Supreme Court. 15 Therefore, when the State seeks to terminate the relationship between a parent and child, it must use procedures which comport with due process. Santosky, 455 U.S. at 753 , 102 S.Ct. at 1394 , citing Lassiter v. Department of Social Services, 452 U.S. 18 , ³⁷¹ 24-32, 101 S.Ct. 2153, 2158-62 , 68 L.Ed.2d 640 (1981). 16 The Supreme Court in Santosky emphasized the importance of this interest, stating: “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life____ When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” Santosky, 455 U.S. at 753-54 , 102 S.Ct. at 1394-95 (footnote omitted).

The question before the Supreme Court in Santosky was whether New York State laws, 17 which provided for termination of parental rights upon a finding of permanent neglect supported by a “fair preponderance of the evidence,” violated constitutional due process standards. Santosky, 455 U.S. at 747 , 102 S.Ct. at 1391 . The Supreme Court held that “[b]efore a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.” Santosky, 455 U.S. at 747-48 , 102 S.Ct. at 1391-92 . The Santosky Court found the preponderance standard deficient because it resulted in an almost equal allocation of risk of an erroneous termination between the parent and the State, an allocation the Court found unacceptable because of the importance of the ³⁷² interest involved.

Santosky, 455 U.S. at 765-66 , 102 S.Ct. at 1401-02 . Maryland’s parental right termination statute, Md.Fam. Law.Code Ann. § 5-313, explicitly adheres to this standard of proof by providing that parental rights may only be terminated “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____” § 5-313(a) (emphasis added). There is nothing in the Maryland statute that prohibits or in any way refers to consecutive termination actions.

The United States Supreme Court has never directly addressed the question of when, if ever, successive parental termination actions violate due process. Nor has the Court ever addressed what role, if any, res judicata would play in such a situation. As part of its factual and procedural narration in Santosky , however, the Supreme Court did note this was not the first time the State had brought a termination action against the Santoskys. “Respondent [the State] had made an earlier and unsuccessful termination effort in September 1976. After a fact-finding hearing, the Family Court Judge dismissed respondent’s petition for failure to prove an essential element of Fam.Ct.Act § 614.1.(d).

See In re Santosky, 89 Misc.2d 730 , 393 N.Y.S.2d 486 (1977). The New York Supreme Court, Appellate Division, affirmed, finding that ‘the record as a whole’ revealed that petitioners had ‘substantially planned for the future of the children.’ In re John W., 63 App.Div.2d 750, 751, 404 N.Y.S.2d 717, 719 (1978).” Santosky, 455 U.S. at 751 n. 4, 102 S.Ct. at 1393 n. 4. 18 While we recognize that the issue of whether and under what circumstances successive termination actions ³⁷³ would violate a parent’s right to due process was not squarely before the Santosky Court, the Supreme Court had the opportunity to but did not say that successive actions offended due process. The Supreme Court’s approval of the practice is expressed in the following passage: “The disparity between the adversaries’ [parental and the State] litigation resources is matched by a striking asymmetry in their litigation options. Unlike criminal defendants, natural parents have no ‘double jeopardy ’ defense against repeated state termination efforts.

If the State initially fails to win termination, as New York did here ..., it always can try once again to cut off the parents’ rights after gathering more or better evidence. Yet even when the parents have attained the level of fitness required by the State, they have no similar means by which they can forestall future termination efforts. “Coupled with a ‘fair preponderance of the evidence’ standard, these factors create a significant prospect of erroneous termination.” Santosky, 455 U.S. at 764 , 102 S.Ct. at 1400 (emphasis added). It is, therefore, apparent that the clear and convincing evidentiary standard was meant to counteract any potential unfairness to the parent which could result from successive termination actions. “ ‘Increasing the burden of proof is one way to impress the fact-finder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate’ terminations will be ordered.” Santosky, 455 U.S. at 764-65 , 102 S.Ct. at 1400-01 , quoting Addington v. Texas, 441 U.S. 418, 427 , 99 S.Ct. 1804, 1810 , 60 L.Ed.2d 323 (1979). A parent’s procedural protection against an unfair termination action, be it a first, second, or even third action, is the heavy burden of clear and convincing evidence carried by the State.

Due process, standing alone, will not afford appellant the relief she seeks. We turn next, therefore, to the doctrine of res judicata. ³⁷⁴ —Estoppel by Judgment— Because appellant’s argument involves the sometimes abstract concepts of due process and res judicata, we adopt the example used by the trial court to illustrate. The first trial can be conceptualized as a glass container into which evidence was placed. Appellant argues that once the evidence was placed into the container and the first trial judge determined that the level of evidence had not risen to a clear and convincing level, his order would serve as a stopper, and at no time in the future could more evidence be introduced.

Instead appellant argues, at any future hearing a new container must be used and only evidence of facts after the first trial judge denied the petition can be introduced into the new container. We hold that all of the “old” evidence, all evidence which was actually introduced or could have been introduced together with the new evidence was properly placed into the first container and viewed as one. This was necessary for the trial court to have a better view of what had happened in the lives of the children. The court may then measure all of the evidence together to determine if it has reached the clear and convincing level.

We explain. Both res judicata and collateral estoppel are branches of the broad doctrine known as estoppel by judgment. Res judicata, also known as claim preclusion, is direct estoppel; that is, if a suit between the same parties is upon the same cause of action, the judgment in the earlier suit is an absolute bar to a later suit, not only as to all matters which were actually litigated in the earlier suit, but as to all matters which could have been litigated. Collateral estoppel, sometimes referred to as issue preclusion, operates so that even if the causes of action are different, a factual issue actually litigated in the first case is conclusive in the second.

Klein v. Whitehead, 40 Md.App. 1, 13-14 , 389 A.2d 374 , cert. denied, 283 Md. 734 (1978). The distinction between res judicata and collateral estoppel is maintained in Maryland, and thus, is not merely ³⁷⁵ of academic interest. Klein, 40 Md.App. at 15 , 389 A.2d 374 . Collateral estoppel may sometimes be asserted even where res judicata will not apply.

For example, a second cause of action may be different from the first, and, therefore, res judicata will not act as a bar. If, however, a factual determination has been made i.e., a particular issue was litigated in the first action, it will be conclusive in the second. MPC, Inc. v. Kenny, 279 Md. 29, 33 , 367 A.2d 486 (1977). 19 In keeping with the admonition of Klein , we will consider the two doctrines separately. —Res Judicata— In Maryland, as in most states, the “evidentiary test” is used to determine whether a cause of action is the same for res judicata purposes. If the same evidentiary facts would sustain both actions, the two causes of action are the same for purposes of invoking res judicata.

MPC, Inc., 279 Md. at 33 , 367 A.2d 486 . Substance, not form, is controlling, so that the subject matter of the litigation and not merely the pleadings should be examined when applying the test. Whitaker v. Whitaker, 60 Md.App. 695, 701 , 484 A.2d 314 (1984), cert. denied, 302 Md. 682 , 490 A.2d 719 (1985). Applying the same evidence test to the two termination trials in the case sub judice, we cannot conclude that the same evidence could have sustained both actions.

The trial court found at the first termination trial that the Department had failed to establish, by clear and convincing evidence, that it would be in the best interests of the twins to forever sever their ties with their mother. But the first trial did not result in the return of the twins to appellant. The trial judge in the first action gave the proverbial “second chance” to appellant—she was to follow the terms ³⁷⁶ of the court order he issued. It was appellant’s failure to make any attempt to comply with that order which made the second trial qualitatively different from the first.

Additionally, res judicata extends “only to the facts and conditions as they existed at the time of the first judgment and does not bar the fresh litigation of an issue which is appropriately subject to periodic redetermination, as subsequent facts and changed conditions may alter the status of the thing being evaluated.” Towers v. Director, Patuxent Institution, 18 Md.App. 248, 250 , 306 A.2d 597 (1973) (emphasis added). See also Whittle v. Board of Zoning Appeals of Baltimore County, 211 Md. 36, 45 , 125 A.2d 41 (1956); Jack v. Foster Branch Homeowners Ass ’n, 53 Md.App. 325, 333 , 452 A.2d 1306 (1982). Child welfare seems to be a particularly appealing subject for periodic redetermination because children can be quickly and irretrievably scarred by negative circumstances. Changes in custody decrees are a classic example.

A child custody order may be modified upon a showing of a strong reason affecting the welfare of the children. Krebs v. Krebs, 255 Md. 264, 266 , 257 A.2d 428 (1969). 20 In the case sub judice, following appellant’s line of reasoning to its logical conclusion could produce disturbing practical results. The Department would be required to wait after any unsuccessful termination trial until independent new evidence reached a clear and convincing level. Without the evidence of prior events, it would be a rare situation indeed where the independent new evidence would be egregious enough to sustain a new action within a short ³⁷⁷ period of time.

Thus, while the parent or parents might be benefitted, the children would suffer. Other jurisdictions which have been presented with precisely this issue have also held that res judicata poses no barrier to a second action to terminate parental rights, and does not limit the evidence which can be considered at the second action. We briefly review these holdings and the rationales behind them. In Matter of Newman, 49 Or.App. 221 , 619 P.2d 901 (1980), the first parental right termination action was dismissed and the State refiled two years later.

The Court held that the second termination proceeding was not barred, and proof was not in any way limited by principles of res judicata. Newman, 619 P.2d at 903 . The Court reasoned that for res judicata purposes a termination action was not so much a particular proceeding, but rather a group of facts which might or might not entitle the State to prevail. If a new substantial fact arises, 21 a new termination proceeding may be warranted.

Newman, 619 P.2d at 904 . Evidence adduced at an earlier termination proceeding may be essential in determining a parent’s qualifications as a fit parent in the later proceeding and therefore must be admitted. 22 Newman, 619 P.2d at 905 . In In re Juvenile Appeal, 190 Conn. 310 , 460 A.2d 1277 (1983), the State filed a successful parental rights termination action after a previous petition had been dismissed. On appeal, the Court held that because the first proceeding had not been dismissed on the merits, res judicata would not bar the second successful petition, and evidence of events prior to the first petition was therefore admissible.

In re ³⁷⁸ Juvenile Appeal, 460 A.2d at 1281-82 . 23 Although the Court resolved the issue on this basis, it went on to state the following, citing concern with problems which might arise in the future from successive termination petitions: “The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies. “Because the issue of whether termination of parental rights is appropriate must be decided upon the basis of conditions as they appear at the time of trial, the doctrines of res judicata and collateral estoppel ordinarily afford very little protection to a parent who has once successfully resisted an attempt to terminate his rights to a child. Parents have a constitutionally protected right to raise and care for their own children. This right is not free from intervention by the state, however, when the continuing parens patriae interest of the state in the well being of children is deemed by law to supersede parental interests. An adjudication that a ground for termination did not exist at one time does not mean such ground has not arisen at a later time.” In re Juvenile Appeal, 460 A.2d at 1282 (citations omitted).

The Court went on to note that other jurisdictions had adopted variations of the “material change in circumstances standard.” 24 This standard allows the State, upon a threshold showing of a material change in circumstances, to admit evidence of events occurring prior to any earlier attempts to terminate. In re Juvenile Appeal, 460 A.2d at 1282-83 . ³⁷⁹ In People in Interest of J.R., 711 P.2d 701, 703 (Colo.App. 1985), the Court held that res judicata does not bar a second action because, although the policy of limiting litigation is sound, that policy should not be applied to deprive the State of its parens patriae role. The Court observed that the protections “afforded by the doctrines of res judicata and collateral estoppel are sustained in termination proceedings by the continued requirement that the state meet its burden of proof before parental rights are terminated.” There should be, the Court cautioned, sufficient additional facts to justify the trial court’s different conclusions. The protective purpose of res judicata, to protect persons from unnecessary relitigation, is preserved as long as there are new evidentiary matters at issue.

People in Interest of J.R., 711 P.2d at 703 . We think the rationales used by our sister jurisdictions should apply to the case sub judice. If the State had brought the second petition to terminate appellant’s rights and had alleged nothing new, there is no doubt that it would be barred by res judicata. But there were new facts and circumstances introduced at the second action which could not have been introduced at the first.

Although the court did not terminate appellant’s parental rights in the first action, her children remained in the custody of the State and she was ordered to work with the Department toward reunification. In order to help appellant toward this end, the trial court ordered that there be a private psychological therapist for appellant, contact with her mother, visits with the children, and counselling for the children. It appears in the case sub judice that the Department made an effort to comply with the order. Appellant rejected a service agreement designed to facilitate reunification.

She did not regularly