In Re Adoption/Guardianship Nos. J9610436 & J9711031

exclusion, Primary Policy provided coverage no to Mrs. Megonnell $20,000.” beyond the occurrence Accordingly, respectfully I dissent.

796 A.2d 778 In re NOS. J9610436 and ADOPTION/GUARDIANSHIP County.

J9711031 in the Circuit Court for Carroll 58, Term, Sept. No. 2001. Appeals Maryland.

Court of April (MacDonald Hecker, P.A., brief), Fred S. Hecker & on Westminster, petitioner. for (J. Curran, Jr.,

Nancy Hopkins, Atty. Joseph C. Asst. Gen. brief), Baltimore, Atty. Maryland, respondent. Gen. of for Gardner, Thompson Eisenberg, Débra Lewis Ye- Deborah lin, Center, Wardlaw, Young, Public Lauren Justice Kenneth Center, Sachs, Wilmer, Maryland Disability Stephen Law H. Curiae, Baltimore, Pickering, Cutler & of Amici brief Center, Maryland Regional Public Justice The Practitioners’ (As Only): Network for and and Part I Fathers Families Center, Maryland County, The Law Arc of Anne Arundel States, Maryland, Indepen- The Arc of The Arc of the United Now, Making Independent Living, Mary- dence for Choices Council, Maryland Adapt, Independent Living land Statewide People Maryland petitioners, and on the Go of for amici curiae RAKER, ELDRIDGE, C.J., BELL, and Argued before BATTAGLIA, HARRELL, JJ. CATHELL, and WILNER, CATHELL, Judge. parent rights, parental

Prior to a termination state constitu- fundamental federal the child have perhaps relation- parent/child the maintenance rights tional amendments, constitutional relationship, absent ship. This statutes, or state abrogated by federal unreasonably cannot be by the practices, administrative regulations, or state federal funds, by the “safer or or state qualify federal need parents the same where rights These are course doctrine.” Constitutions, our to be disabled. Under alleged children are entitled to the no less citizens disabled are poor The Constitutions protections. of constitutional range full any other area of fully as as welfare area apply the social in matters strong presumption There is American life. cases, that the “best rights parental relating to termination terminating child, bymet generally, are interests” of parental In parents. termination parental rights of natural most insures the cases, presumption that it is this rights and constitutional fundamental parent’s deference to a proper that we commence perspective It from this right parent. is of this case. our review Right Parenting a Fundamental

I. as under the Consti- rights protected fundamental are Certain i.e., right rearing, to child Among rights tutions. those consistently law has reaffirm- Supreme Court case parenting. parental rights. ed Boswell, Md. 217- v. recently

We stated in Boswell 662, (1998), 20, that: 721A.2d 668-69 right to the care and parent

“A has a fundamental Supreme child. The United States custody of his or her care, rights parents regarding of the upheld has the Court of children in several con- custody, management and their education, religion. and See texts, including rearing, child 1526, Yoder, 205, 92 32 L.Ed.2d v. 406 U.S. S.Ct. Wisconsin 670 (1972) mandatory (overturning schooling

15 a law in the face parental authority religious liberty); of Amish claims of Illinois, 645, 1208, Stanley v. 405 U.S. 92 S.Ct. 31 L.Ed.2d (1972) (discussing right parents 551 the of to raise their Massachusetts, children); 158, 166, Prince v. 321 64 U.S. (1944) 438, 442, 645, (observing 88 L.Ed. 652 that ‘the S.Ct. care, custody, child in and nurture the reside first the Oklahoma, 535, 541, parents’); v. 316 62 Skinner U.S. S.Ct. (1942) 1110, 1113, 1655, (stating 86 L.Ed. 1660 right encompassed parent’s rear a child is within ‘basic civil rights’).... Supreme long history affording Court’s protection parents rearing in the realm of child Browneller, family acknowledged in v. 115 life Wolinski (1997): 285, 299, 30, Md.App. 693 A.2d 36-37 parent’s liberty ‘A Fourteenth Amendment in interest fit, raising his or her children as she sees without undue State, long interference has been a of that facet private family realm of affairs over which Supreme draped has a cloak of constitutional protection.’ Court Court, In Supreme Maryland accordance has in parent’s raising declared that a interest a child is a right that away clearly fundamental cannot be taken unless justified.

... [T]his Court has held that the best interests may precedence parent’s child liberty take over the interest visitation, custody, the course of a dis- adoption pute .... ignore The best interest standard does not parents importance interests and their to the child. cases, recognize We in almost all it the best child to opportu- interests have reasonable maximum nity develop loving relationship close with each parent.” citations [Some omitted.] 557, 1243, See v. 394 Stanley Georgia, U.S. 89 22 S.Ct. (1969); Oklahoma, L.Ed.2d see also Skinner v. 316 U.S. 535, 1110, (1942); 62 S.Ct. 86 L.Ed. 1655 Jacobson v. Massa- chusetts, 11, (1905). 197 U.S. 25 S.Ct. 49 L.Ed.

671 Most, 705, M., 687, A.2d In 782 recently, in re Mark 365 Md. (2001), parent of 332, notion this Court reiterated the 342-43 right: fundamental ing as a is, doubt, a raising a child no in parent’s

“A interest by the States Su right, recognized United fundamental Supreme and this States Court. United preme Court right encompassed long basic civil has avowed the Court Granville, 530 Troxel v. rearing family life. See child (2000) 2060, 49, 57, 66, 2054, 147 57 120 L.Ed.2d S.Ct. U.S. fun the protects Amendment (stating that ‘the Fourteenth concerning the right parents of to make decisions damental children’); also care, their See custody, control of 1388, Kramer, 745, 753, 102 455 U.S. S.Ct. Santosky v. (1982) 1394-95, 599, (discussing ‘the funda 71 L.Ed.2d 606 care, in custo liberty parents interest of natural mental Illinois, child’); 405 v. management Stanley of their dy, and 1212-13, 551, 645, 651, 1208, 558- 92 31 L.Ed.2d S.Ct. U.S. (1972) (stating rights to and to raise conceive ‘[t]he 59 ’ “essential,” and that have deemed one’s children been in the integrity family protection of unit has found ‘[t]he ... Clause of Fourteenth Amendment Due Process ... Equal Protection Clause of the Fourteenth Amendment (internal omitted)). ...” Ninth Amendment citations and the too, raising a Maryland, parent’s has a declared interest away so that it be taken child to be fundamental ‘cannot Boswell, 204, justified.’ Md. clearly Boswell v. 352 unless (1998) 662, 218, (citing A.2d re No. Adoption 721 669 In 99, (1994)).” 10941, 112, Md. A.2d 201 335 642 745, Kramer, 1388, 71 v. 455 Santosky In U.S. 102 S.Ct. (1982), States Supreme L.Ed.2d 599 Court the United rights allegations of parents reaffirmed the when there are proceeding in a to terminate neglect and are involved had rights. Santosky, Prior to some states parental their a of a parental rights upon based minimal standard terminated Santosky, In the Su- preponderance “fair the evidence.” that, preme preponderance held ‘fair evi- Court “the ... violates the Due Clause dence’ standard Process 768, 102 Amendment.” Id. at S.Ct. Fourteenth L.Ed.2d at 616. The Court concluded that in order termi- parent-child relationship, nate and convincing “clear evi- proof dence” standard of was needed. Before the Court propér addressed the standard to proceed- use termination ings, again recognized it weight given parental rights: liberty

“The fundamental parents interest of natural care, custody, management the and of their child does not evaporate simply because parents have been model temporary custody or have lost of their child to the State. strained, blood relationships parents Even when are retain vital in preventing interest the irretrievable destruction of family their If anything, persons life. faced with forced parental dissolution of their rights have a more critical need procedural protections than do resisting those state family intervention into ongoing affairs.” 753, 1394-95, Id. at 102 S.Ct. at 71 (emphasis L.Ed.2d at 606 added). laws, applicable State require- order to meet the

ments of the Federal Constitution and 24 Article Maryland of Rights, Declaration contain protections certain First, for parents. Maryland presumes law that reunification with parent the natural is in the child’s “best interest.” Additionally, Maryland’s requires law the court must consider the nature and extent of by services offered the child placement agency to facilitate reunion of with the child the natural parent prior to a parental rights. termination of Spe- (1984, cifically, Maryland Repl.Vol.), Code 1999 section 5-313 Article, Family case, Law the section at issue in this Maryland’s already bolsters stringent statutory standards that must be satisfied before termination of parental rights can occur. only Maryland

Not long recognized have courts this notion child, right the fundamental to rear a but courts have emphasized that this right may fundamental not be terminated clearly justified. unless In In re Adoption/Guardianship No. 10941, 99, 105, 201, 335 (1994), Md. 642 A.2d 204 we noted: “Maryland receives pursuant considerable federal funds to Assem- Maryland General Accordingly, the Act.1 this [federal] require- the federal comply with legislation bly has enacted law was of this important purposes of the most “One ments.” adopt states to by requiring care drift foster eliminate as a for children placement permanent to facilitate statutes care funding for their foster receiving federal condition 104, 642 A.2d at Id. at programs.” adoption assistance foremost, depart- Nonetheless, “First and we held that: natural to the child’s returning the child consider ment must at 204-05. 642 A.2d Id. guardians.” parents Bailie, Parties in Child “Neglected” A. The Other Kathleen the Role Poverty Parents in Proceedings: Protection Them, Fordham L.Rev. Represent Who Lawyers of 2285, 1998) applica- problems (May, in largely reac- adoption processes, passed rights and abuse2 in our nation. most cases of child tion to the terrible well-being of the nation’s safety for the While concern may actually harm goal, children is a laudable the ASF piece this of in Because new process: some children the child mainly contemplates cases severe legislation federal maltreatment, in child who are the poor families abuse neglect may soon be suspected system welfare because ignored. the neglect perhaps as are poverty that involve

Cases family preservation and candidates for compelling most also a Unfortunately, poverty is services. reunification and, thus, that cannot be allevi- problem one deeply-rooted such, for child new time lines quickly. As the ASF’s ated actually apart to tear families may cases work protective Act of “Adoption and Child Welfare “Act" is the Assistance 1. This (1988). 1980,” 670-679 codified at 42 U.S.C. sections judice. abuse in the case sub 2. There is no evidence of child who would otherwise have in rebuilding succeeded their lives.

Finally, charges neglect effectively poor parents render powerless. having The strain of one’s away children taken extremely distressing parents in poverty, who are often undereducated and unworldly. This stressful situation and, therefore, parents weakens further exacerbates the of power already imbalance favors the state in child protection proceedings. clearly The state is in control neglect proceedings, for only present not does it the case to court, but its ‘adversary,’ parent, is unfamiliar with legal proceedings. such, intricacies parents As effectively are often rights. unable assert their piece legislation newest of federal affecting the child system welfare Adoption and Safe Families Act of —The may continue to poor needy disserve families. 1997— Intended to make safety children’s health and primary protective focus of child proceedings, the ASF forces child give up parents welfare officials to sooner than before. indigent parents may Because difficulty have correcting their families’ situations with speed with which the government federal requires, now may the ASF actually to hurt work children dissolving loving, salvageable families.” original.] [Alterations in [Endnotes omitted.] Additionally, although we applicability need decide its case, present Congress recognized has also rights that the protected. disabled are no less The Americans With Disabilities Act is an expression of public policy federal in all Watkins, areas.3 Chris Beyond Status: The Americans with 3. The amicus brief filed in this applicability case also notes the of the (“ADA”). Americans with Disabilities Act It asserts that it should be applicable in proceedings the area of termination parents where the are disabled.

675 Labeled People Rights and the Parental Act Disabilities Retarded, 82 Cal. Mentally or Disabled Developmentally 1415, (1995), notes: 1469 L.Rev. individuals qualified all essentially protects II

“Title activi- programs discrimination in disability from a entities, legislatures including state public ties of all courts. suggest to regulatory language nothing in the

There is enacting apply legislatures should that this directive rights.” parental laws, making decisions about judges or to Adoption with the attempting comply Accordingly, when courts, must, 1997, agencies and Families Act of and Safe expressed has also least, Congress recognize at the that the disabled taken to insure steps that extra be concern discrimination, may it inadvertent however subject are not given in a case. be and state of the federal importance and role

Due to the it and because specifically, in this case generally statutes Adoption Assistance context of the federal is also within the Maryland Act of 1980 and Title 5 Welfare and Child judice, sub we the case Family Law Article that we address 10941, No. re: portion Adoption/Guardianship include a of In (1994). 103-06, 201, Judge 203-05 Md. 642 A.2d Court, Karwacki, comprehensively addressed writing for the adop relating to child statutory scheme the state and federal lead, here, tion, potential termination which can as it did Judge Karwacki stated: parental rights. compre- Assembly has enacted Maryland “The General situations where statutory to address those hensive scheme inability parents’ of his or her a child is at risk because Family 5 of him or Title unwillingness to care for her. (1984, RepLVol.) Maryland Law Code Article ‘F.L.’) (hereinafter adop- custody, guardianship, governs because of abuse protection of children who general tion and 676 neglect4 purview

or within of Department come the the of Human Resources.... 1970’s,

During grew regarding the nationwide concern the who large number of children remained out of the homes of childhood, biological parents throughout their their fre- another, from quently moved one foster care situation to majority thereby reaching belonging perma- without to a family. phenomenon This known as ‘foster nent became by Congress care drift’ and resulted the enactment of 96-272, ‘Adoption Public Law and Child Assistance 1980,’ §§ at 42 Welfare Act of codified U.S.C. 610-679 (1998). importance purposes of the of this law was to One drift requiring adopt eliminate foster care states to permanent placement a statutes facilitate for children as receiving funding condition to for federal their foster care programs. and adoption assistance act, required, among Under the federal a state is other things, provide plan a written case for child for each whom the state claims federal foster care maintenance 671(a)(16). § 42 payments. plan The case must U.S.C. a description include the home or institution into which child is a placed, appropriateness discussion of the and a placement, description provided the services to the parents, parents child and foster facilitate return child to his or her own or to home establish another 675(1). permanent § for 42 placement the child. U.S.C. implement system The state must also a case review provides for plan administrative review of the case at least judicial every eighteen six months and review no later than placement periodically months after 42 thereafter. 675(5)(B) (C). § purpose judicial U.S.C. of “neglect” implies, generally, knowing 4. The term a deliberate or ne- bar, glect. knowing neglect In the case has never been established. children; supports attempted (cid:127)The record that the father to care for his neglect he did not to make efforts to care for them. child’ future status is to ‘determine review biologi- its returned to child should be including whether specified period, care for foster continued parents, cal needs special child’s or because of the adoption, placed long on a term circumstances, in foster care continued 675(5)(C). § basis. U.S.C. to pursuant funds considerable federal

Maryland receives Assembly has Maryland the General Accordingly, Act. this requirements. comply with the federal legislation to enacted scheme, children com- statutory for those Maryland’s Under depart- the of social services department to a local mitted implement permanency a develop to required is ment § F.L. 5-525. of the child. that is in the best interest plan department permanency plan, the developing In the hierarchy placement of statutory a to consider required 5-525(c). § F.L. descending priority. order of options returning foremost, must department consider First and the If guardians. parents or child’s natural the child to the the possible, is not biological parents with the reunification to child with relatives placing consider the department must custody, in de- or care or adoption, guardianship, whom If granted. to be planned are scending priority, order of depart- possible, then the with is not placement relatives or parent foster adoption by a current must consider ment adoptive family.... approved other convincing by clear and

... If circuit court finds the evidence, statutorily fac- considering the enumerated after previously a child tors, interest of it is in the best terminated, to parental rights for be adjudicated a CINA authority grant department’s to circuit court has carries with it the award guardianship. for Such petition adoption of the to consent to the right department for the 5-317(1). §§ 5-311 and child. F.L. legis- and state overriding theme of both the federal in his or her permanency a child should have

lation is that Thus, Family Law Article seeks Title 5 of the life.... home, to child from its for removal of a prevent the need and where re- possible, its home when return a child to turning possible, place home is not the child in another legal that has cita- permanent placement status.” [Some tions omitted.] judice. now turn to facts of the case sub

We History II. Procedural 10, 1997, July County Department On the Carroll Social (CCDSS) Guardianship Services filed Petition Right Adoption Long-Term to Consent to Care Short children, Tristynn minor Adoption (petitioner) of Mr. F.’s D. (Edward), (Tristynn) and Edward F. and for the termination petitioner’s parental rights as the minor children. The mother, H., children’s natural Ms. consented to the termi- parental rights prior nation of her as both children to the filing petition. parental rights The termination of (TPR) 23, began on hearing June took a total of five days year.5 August over the course of more than a On 2000, following hearings, conclusion of the Circuit County Court for Carroll issued Memorandum and Order parental rights terminating petitioner’s granting and CCDSS with guardianship right of the minor children the to consent to adoption long-term adoption. care short of Petitioner and/or timely appeal Special Appeals noted a to the Court of from unreported opinion, Special that In an Order. the Court of trial Appeals judgment.6 affirmed the court’s 11, 2001, petitioner On June filed Petition for Certiorari and Public Center filed a Petition and the Justice Memoran- dum in Support participate thereof and asked to as amici 15, granted petitions August curiae. We both 2001. Peti- 23, 1998, 24, 1998, Specifically, hearing 5. the dates were: June June 29, 16, 1999, 1999, 20, January July July and 1999. commented, Judge Murphy, dissenting, part, Chief are “Rare that, rights parental ground cases in which are terminated on the even there, ‘though [parent’s] good parent] [to effort and desire be a cases, [parent’s] ability simply every is not.’ In these rare reason parent able effort should be made to assist the and termination should very Adoption/Guardianship he the last resort...." In re Nos. J9610436 J9711031, (Court 11, 2001) Special Appeals May and No. 1579 (Dissent, Murphy). C.J. Court, propriety of the this in his brief to presents, tioner For rea- rights. parental of his trial court’s termination and herein, of the trial court the orders we reverse sons stated petitioner’s pa- that appellate court terminated intermediate rights. rental of Facts

III. Statement sons, was born on June Tristynn, of the two The oldest and married and H. who were never petitioner to Ms. was births of both children relationship at time of the their perma- that has testified he volatile. Petitioner apparently avoids with Ms. H. and relationship his nently terminated in the to the was no evidence record with her. There contact and ultimately abandoned the children Mrs. H. contrary. In consoli- rights. parental to of her consented termination J-96-10624, adju- child was each dated cases J-96-10436 to of assistance.7 dicated be need birth, Tristynn lived his six months after approximately

For into Tristynn subsequently came and Ms. H. petitioner 28, 1995, of six age at the on December the care of CCDSS help in months, and asked for petitioner went to CCDSS when was no testified there caring for his child. Petitioner family living had been electricity apartment in the where had no to he brought Tristynn he CCDSS at the time bearing was no other evidence Tristynn. There food feed neglect and no evidence abuse. Petitioner on the issue of get [my] kids back thought going “[I] [I] stated that back on.” [my] electricity turned When got once [I] him, relationship an adversarial children were returned into petitioner and CCDSS came existence. between care, 25,1996 April and on Tristynn in foster placed CCDSS uncle, Mr. with his maternal aunt Tristynn went live 1997, 30, Mr. and Eventually, April on Mrs. W. and Mrs. W. longer Tristynn; no care for he they could told CCDSS (CINA) in Tristynn in Assistance to be a Child Need of 7. was found 21, and Edward Order dated March 1996 Juvenile case J-96-10436 6, August CINA in Juvenile Case No. J-96-10624 was found to be a 1996. 680 placed uncle, with petitioner’s

was then aunt and who were parents.8 licensed care foster 30, 1996, May Edward positive

On was born and he tested at birth for amphetamines problems. and had severe medical Edward was treated for two weeks in the neonatal intensive Hopkins care unit at Hospital. Johns Edward’s mother alcohol, medication, marijuana abused over the counter and during but it pregnancy, her is not certain whether her behavior caused Edward’s medical conditions. Edward en- 18, tered the care of on June CCDSS when he was three old, at which immediately placed weeks time he was in foster care with non-relatives Mr. Mrs. M.9 and permanency plan

The initial for both children was to return parent. 13,1997, to May petition- them the home either On permanency plan er was informed that changed CCDSS’s had plan from a to guardianship right reunification with the adoption. consent to That plan adopted by was the court on 10,1997. June adequacy of the reunification provided services

petitioner by disputed. CCDSS are claims that CCDSS provided petitioner services adequate ultimately were and they unsuccessful. We shall hold that adequate. were not Specifically, shortly Tristynn CCDSS states that after entered care, began foster him arranging super CCDSS for to have with petitioner,10 vised visits they CCDSS claims that had scheduling problems with petitioner from beginning Tristynn petitioner’s 8. continues to live with aunt uncle at the time decision, adopting Tristynn. of this are interested in It should time, 10, period through be noted that for a brief December 1, 1997, Tristynn March was removed from the care of Mr. and W. Mrs. aftercare, placed amounting and was with his mother gap to a 25, April April Tristynn time between 1996 and 1997 when placed petitioner's aunt and uncle. M., 9. Edward continues to reside with Mr. and Mrs. both of whom are adopting interested in Edward. fact, roughly Tristynn In it was four months after entered foster care arranged petitioner begin supervised before CCDSS visits with Tristynn. schedule that the initial visitation testified visitation. CCDSS petitioner’s to accommodate changed frequently had to be petitioner at one occasion and that on least work schedule Further, claims minute. CCDSS a visit the last cancelled children, dem- early petitioner during his visits with that children, to unable in for the was caring trouble onstrated to him techniques repeatedly care shown child remember worker, age-appropriate difficulty choosing in social had children, Tristynn to help and was not able toys for the Moreover, that in states verbal skills. CCDSS beginning his Tristynn seeing supervised petitioner visits when started later and di- together, supervision needed petitioner and Edward chil- to for the two properly to understand how care rection dren, give proper to both attention when how them special to medical together, are understand the children dietary needs Edward. visitation, peti- other Additionally, states that than CCDSS CCDSS, and request not services from tioner did additional social as to his The deny so far need services. went assigned petitioner petitioner worker assist claimed truthful, infor- provided inadequate was not cooperative, mation. a

Finally, practice entering usual into unlike CCDSS’s seeking months agreement every new service six with those assistance, only CCDSS entered into Services one Social (on 1996) petitioner July goal had Agreement with agreement required to obtain petitioner reunification. classes, electricity apartment, complete in his parenting attend drug program, complete violence an alcohol and domestic evaluation, analysis, submit random urine confirm ad- visits, keep completely his intent to truth- vance scheduled be CCDSS, drug ful with the and remain and alcohol free.11 classes, parenting parents attended as well as a Petitioner group, petition- but worker anonymous the social believed petitioner The record does not indicate that was involved in domes- respect any drug either of the children or tic violence had from free. alcohol addictions which to remain very progress. er made little Petitioner finished the first phase program, of a domestic violence but allegedly could not complete phase the second alleged cognitive due limita- Also, tions. petitioner completed drug and alcohol evalua- tion, concluding with the evaluator that he did not need treatment. petitioner

A social worker also noted that prepared never budget, presumably household for when oc- reunification curred, up plan or came with a for child care other than suggesting family that a living by member close could care for CCDSS, According petitioner them. has reduced mental capacity that him incapable parenting renders the children on his own. record,

Insofar as we have been able to discern from the any specialized CCDSS never offered designed services to be particularly helpful parent to a with the intellectual and cognitive alleges skill levels possessed by petition- CCDSS are by er. We are informed the amicus that brief such services include, They according are available. to petitioner’s expert witness, services,” Hardesty:12 management Mr. “case “fami- ly services,” support and individual “community supported services,” services,” living arrangement “drop in and “Division of Vocational Rehabilitation” services. Other witnesses testi- services, advising services, fied that financial family support programs other were from available various entities such Chance, Flying as to Success, Target, Colors various Associa- (ARC) entities, tion Retarded Citizens and numerous other entities, private public. None of these services were Moreover, by utilized CCDSS.13 the record does not reflect sought CCDSS might utilize services that be available Hardesty specifically 12. qualified expert Mr. was developmen- as an in tal disabilities. 13. The Developmental amicus brief also describes state licensed Ser- Groups, Growing Together Program vices of Parents and Children Together, Program through public and The Infants and Toddlers school systems. Administration, even Disabilities Developmental through the on the toward termination relying in its drive it was though workers, disabled petitioner of its opinion fact that ours.)14 (Their term, impairment. of mental by reason intelligence particular of one person that a emphasize We another, from but neither may be different quotient level they simply what He or she is or enhanced. impaired them is beings eyes inherently lesser are no are. There law. allegations of CCDSS counters the

Petitioner claiming that him with sufficient services provided fight through a label. You have very go life with “It is hard to separate individuals just We have to constantly. a word. Retarded just like like ‘retarded’ because from the word. We use words habit— morning. word getting up going shopping every in the week going give people help, but what you be there if are ‘retarded’ must giving them calling retarded and not someone the hell is the sense anything? inevitably Unless help, used to hurt. it is If the label is not used to aim, goal is in fact the diminishment is the unless the that place no in child parent, label has almost mentally labeled retarded welfare law.” Politics, Law, Jr., and. the Presumptions Hayman, L. Justice: Robert of 1202, (1990) (endnote Parent, 1269 Mentally Harv. L.Rev. Retarded 103 omitted). ‘ agree humanity, we must that: 'In the cause for beings. All men are human beings All human are valuable. commentary.” the rest is And all Blatt, Retardation quoting In and Out Mental Id. at Burton of (1981). law, mentally parent is an retarded perspective of the “FROM the mentally parent faces the sub- oxymoron-in-waiting. retarded Each that, longer will soon no by legal prescription, she likelihood stantial meanwhile, parents, toward a mentally drifts The retarded be. class systematic large part termination eugenicist due in to vision: vulgar fictions—and in parental rights the law's more their —-one retreats, extinction of the strategic utter part some definitional small to generations been altogether must have improbable. Three class is not all; enough as much. after the law has said ‘mentally parents, removing retarded' labeled ... In children from gives parental rights, the law effect to terminating parents' and in those ultimately us all.” conception diminishes of human worth omitted). (endnotes Id. at 1203 by minimal, inadequate, services offered CCDSS to him were Moreover, inappropriate particular for his situation. peti- education, proffers completed tioner that he has obtained a license, employment, driver’s has secured and maintains his residence, can, fact, indicating own in parent that he his own children.

Specifically, petitioner claims that while CCDSS did refer classes, parenting him for him complete asked for a domes- tic program, drug violence and referred him for a and alcohol evaluation, petitioner CCDSS failed to offer services in a significant manner-—in a manner for him. In reasonable other words, CCDSS did not offer reunification services tailored petitioner’s address alleged needs. Petitioner asserts that CCDSS did not fulfill its as a social department by role service seeking programs specific out petitioner’s parenting defi- ciencies, programs that primary would aid and ultimate failure, goal of reunification. it argued, CCDSS address its services to his specific discriminatory need has a impact. apparently

We note that did petition- CCDSS not even offer literacy, er services to assist him with petitioner even after 3,1996 signed July Agreement Social Services and fulfilled obligations how, it forth. emphasizes set Petitioner even changed plan after CCDSS from a for to a plan reunification guardianship for right adoption, to consent to he classes, parenting continued to attend participate in Parent’s Anonymous, and continued all that doing, he had been includ- ing visiting regular on a Additionally, basis.15 until the deci- Special sion Appeals, petitioner the Court of visited with both consistently, roughly children two per hours week. doing do, He was all was proffers he asked to that he was being participation offered programs numerous 15. Petitioner also plan continued these activities after the new was adopted by the Circuit Court and after CCDSS filed a Petition for Guardianship Right with Adoption Long to Consent to or Term Care Adoption Short of petitioner’s parental and for of termination rights.

685 he type person alleged to the of was have been offered should by to CCDSS. be 1997,

Additionally, the fall of there was evidence M.D., request, Blumberg, psychiat- conducted a Neil CCDSS’s 16that Blumberg reported Dr. petitioner. ric evaluation of impairment and suffered from serious intellectual petitioner parent. unfit to Dr. petitioner as disabled and categorized was not and could not Blumberg testing noted that standard inability to petitioner’s of read well. completed be because spe and the lower court’s reliance on the CCDSS’s testimony Blumberg in to report cific and of Dr. this case petitioner’s of mental capabilities their assessment support testimony was, inappropriate. Blumberg’s Dr. admitted was right parent’s parent A ly, conjectural speculative. ever, rarely, upon conjectures if should be terminated based even was little speculation. The record reflects there Dr. conjectures speculation basis for the furnished Blumberg Dr. also failed to furnish Blumberg. Additionally, probability. pre of opinions any degree medical We testify expert as a that is his he called to medical as sume expertise.17 of apparent field 30, Blumberg’s report, dated 1997 was into

16. Dr. October admitted 23, hearing 1998 Dr. Exceptions evidence at an on June at which Blumberg testified. Beyond Watkins in Status: Act 17. Chris The Americans Disabilities People Developmentally Rights or and the Parental Labeled Disabled of Retarded, (1995), Mentally Cal. L.Rev. writes: interpreting cases statutes those in force Illinois and “Other like expert testimony Louisiana have relied on that has more to do with presumptions group than actual about characteristics observation experts’ presumptions This individual behavior or abilities. reliance lightens requires courts: burden on the it resources and time abilities, parenting rely evaluate an individual's and it is much easier to opinions experts only who two or three with the on the need hours support parent to reach their conclusions. These conclusions in turn inadequacy developmenlallv presumptions par- about disabled presumptions inadequacy replace .... When ents courts allow inquiry, parents erect hurdles la- individual insurmountable lor developmentally mentally retarded. beled disabled responding questions why When to as to not perform he did petitioner on that tests are sometimes utilized to measure levels, intelligence quotient and adaptability Blumberg Dr. categorize testified: I would probably ‘Well his intellectual mean, disability. I it impairment really as—a does hamper him; read, judgment very he’s—he—he cannot his is limited.” added.) (Emphasis also I’ll “Usually, give He testified: an Personality individual Minnesota Inventory— Multi-facet but, read, Mr. F. was unable so the test couldn’t be MMPI— administered.”

We are informed the amicus brief that MMPI is not Moreover, applica- used measure mental “retardation.” tion and use of the MMPI are not limited only people can to which Dr. Blumberg read. The extent on a relies person’s inability to in find “impairment” read order to mental troubling, especially or “retardation” is it in when is used proceedings to determine whether parental terminate remain, rights. regrettably, large portions There of our popu- lation that past, are described as illiterate. In major portions population of our Many have been illiterate. new- country may comers to our not be in languages literate by experts speak understood who do not language. their We suspect illiteracy disproportionately would also is present among poor. literacy, present, very While when is a positive aspect parenting, only, it is not the or even the predominant, being parent. only many. factor It is one Dr.

Ultimately, Blumberg proffered: “Q. intellectually impaired enough [Petitioner] that he couldn’t parent? be a fit

IA. think so.

Q. Okay. you wrong?' Could be certainly A. That is a possibility.” Dr. Blumberg’s speculation evidentiary is of insufficient value Moreover, for all of the reasons stated parent above. should not, normally, deprived permanently be her funda- parental rights upon of, mental a response question to such a “I think so.” developmen- contrast, Hardesty, expert an

In Michael C. supervisor disabilities, employment was petitioner’s tal who Mr. petitioner’s behalf. Palsy, Cerebral testified United ethic, and to petitioner’s strong work Hardesty testified to for United Cerebral as a house counselor petitioner’s duties Hardesty petitioner’s stated that Palsy. Specifically, Mr. toileting, like dress- providing had assistance duties included disabilities, as such feeding persons profound to with ing, and quadriplegia. file and overseeing petitioner’s CCDSS caseworkers18

Some his chil- petitioner and sitting supervised in on visitations fact, did, high a amount in need petitioner dren testified that for the chil- visitation sessions to care supervision at the view, would dren, that, unsupervised visitation and in their caseworkers, howev- endanger safety the of the children. food, er, attempted bring albeit recognize petitioner did that eat, children always engaged able to the food Edward was not improve and his play, ability in an learn demonstrated paying in through progress skills his attention parenting instance, acted caring petitioner for children. For sought the chil- appropriately during the visits and to teach Also, to wash hands and share. the caseworkers dren their Tristynn petitioner happy “Dada” and was testified called with Edward were more petitioner, to see and while the visits petitioner difficult for Edward would at times seek petitioner, Finally, observing for comfort. a social some of the worker with petitioner visits testified that when needed assistance during help, visits to ask for and that children he knew while, view, currently unsuper- for ready in he was not her visitation, could learn given opportunity, petitioner vised essence, to a necessary skills. In testified even CCDSS degree reasonably future was certain reunification if possible, probable. thirty-eight-year-old

Petitioner is a African-American male. graduated high He from school in 1982 and has maintained referring 18. We social workers Deborah Ramelmeier and are to CCDSS Ilelga Anderson. cook, steady employment maintenance/cleaning person, as a years gradua- and for six as a house counselor—all since his from high acknowledged school. Petitioner has his diffi- tion enrolled, culty reading voluntarily with has and without he CCDSS, in im- prompting reading from remedial classes to prove reading ability. has parenting his He attended classes half per approximately years two times week for three and a Anonymous. and he has attended Parents Petitioner has little abuse, history drug history or alcohol and no of child abuse townhouse, neglect. or willful now in a two He lives bedroom which includes bedroom for himself and one which would be boys shared were to be allowed to live with him. parents He testified that his to his and that if live close home problems he were encounter the children while his care, know to call parents help. he would CCDSS Finally, petitioner super- contends that the short visits under conditions, permits, vised which is all that now CCDSS render nearly it impossible any regularity to establish with the chil- dren, appropriate but that with assistance from the sources he successfully parent can his children. care, in placement

Since the childrens’ foster the record to, adjusting reflects that the children are both and doing well in, Tristynn placements well their foster homes. had several in during April his first sixteen months foster care. On 1997, Tristynn placed petitioner’s was with aunt and uncle (Mr. F.). and Mrs. still Although He is under their care. showing developmental delays, Tristynn some is as described happy and is with his parents, comfortable foster but shows petitioner displays negative affection no reactions after adopt Tristynn, expect visits. Mr. and Mrs. F. wish to but Tristynn relationship with petitioner. continue his

Edward, upon hospital his release from at about two the old, M., placed weeks with Mr. and Mrs. licensed foster parents training with special to care for needs children. De- spite problems, require his medical which regular monitoring cyst because of a on his brain and food and environmental allergies, adjusted has he well foster care. Mr. and Mrs. father, M. want Edward to know his but stated that Edward irrita- visiting petitioner and seems difficulty in has had adopt Edward at the and Mrs. M. wish visits. Mr. ble after litigation. this end of Discussion

IV. Review Adoption of a. —Standard of (1984, 5-313 Repl.Vol.), section Maryland Code (FL)19 the trial court mandates Family Law Article determining wheth- forth therein when follow the standard set reads, in That to be terminated. section parental rights are er part:

“(a) adoption a decree of may grant In court general. —A a natural without consent of guardianship, or decree by §§ and 5-317 of this required 5-311 parent otherwise subtitle, convincing if court finds clear and evidence child to terminate the that it is in the best interest as to child and that: parent’s rights natural (2) juvenile proceeding, in a the child has been prior assistance, neglected a child in adjudicated to be need child; child, child, dependent an or a abused (c) determining it Required considerations. —In whether child to a natural the best interest terminate case, rights any except child in the case of parent’s as child, give: the court shall an abandoned (1) safety to the and health of the primary consideration child; and

(2) to: consideration

(i) nature, timeliness, of- and extent of the services the to facilitate by placement agency the child reunion fered parent; child with the natural the 5-313 are to this citation.

19. All references to section (ii) any social agreement service between the natural parent placement and child agency, the and the extent to parties obligations which all have fulfilled their under the agreement;

(iii) feelings the child’s toward and emotional ties with the parents, siblings, any child’s natural the child’s and other may significantly individuals who affect child’s the best interest;

(iv) home, school, adjustment the child’s to and communi- ty;

(v) parent the result of the effort the natural has made to circumstances, conduct, adjust parent’s the natural or condi- it in tions to make the best interest of child to the be home, parent’s including: returned to the natural 1. to which natural parent the extent the has maintained regular contact child a plan with the under to reunite the parent, may child with the natural but the court give not visit, communication, significant weight any incidental or contribution; able, parent financially

2. if natural payment the the. part physical reasonable of the child’s substitute care maintenance; regular 3. the maintenance of communication by the child; parent natural with the custodian of the likely bring whether additional services would be lasting parental adjustment about' a so that the child could parent be returned to the natural within an ascertainable time, exceeding placement, 18 months from the time may but court not consider whether the maintenance of parent-child relationship may serve as an inducement rehabilitation; parent’s for the natural (vi) all services natural parent offered before the child, placement by agency whether offered which child is agencies profes- committed or other sionals.

(d) juvenile Considerations following adjudication. (1)— determining In it is in whether the best interest of child in a to the child rights as parent’s natural a to terminate child to be a adjudicated has who been involving a child case child, or a child, assistance, an abused neglected a of in need in the factors consider child, court shall the dependent follow- any of the (c) whether this section and subsection acts exist: or conditions continuing or serious ing the that renders (i) disability parent has natural the immediate to care the consistently unable parent natural child for of the needs psychological or ongoing physical time; periods of long abuse or acts of

(ii) has committed parent natural the family; in any child the neglect toward give the (iii) repeatedly has failed parent the natural any shelter, or food, and education clothing, adequate child physical, the child’s necessary for or control other care parent health, though the natural mental, even or emotional able; financially physically (iv) child was born: 1. the heroin, cocaine, or a dependent on to or

A. addicted thereof; or derivative heroin, cocaine, or a significant presence

B. with blood as evidenced in the child’s thereof derivative tests; and appropriate toxicology or other drug into a admission parent natural refuses 2. drug in a fully participate program or failed treatment or program; treatment

(v) has: parent the natural child to: subjected abuse; abuse, torture, or or sexual A. chronic neglect; life-threatening B. chronic 2. been convicted: violence, in as defined in of a crime of

A. this State child, Code, the other 27, against § 643B of the Article child, natural child of the another parent natural of the in resides the household any person or who parent, parent; natural in any any

B. state or in court of the of a United States violence, crime that would be a crime of as defined Article Code, § 643B of if against committed this State child, child, parent the other natural child another parent, any person of the natural or who resides in the (cid:127) natural parent; household aiding abetting, conspiring, soliciting C. of or or item; a in A or B commit crime described item item of this or involuntarily lost parental rights sibling of a

child.

(2) parent provide specified If a natural does not medical parent legiti- treatment for a child natural because the is beliefs, mately practicing religious that reason alone does parent negligent parent. not make the natural a (3) The court shall para- consider the evidence under (l)(i) (iv) graph through regarding of this con- subsection tinuing may or serious conditions or acts and waive child (c) placement agency’s obligations under subsection of this court, appropriate section if. the after of evaluation efforts rendered, by convincing made services finds clear and that obligations evidence the waiver of those is in the best interest the child.

(4) court shall placement agency’s waive the child (c) obligations under subsection of this if section the court that finds one of the circumstances or acts in enumerated (l)(v) paragraph of this subsection exists.

(5) any If court finds that of the circumstances or acts (l)(v) paragraph exists, in enumerated this subsection specific finding, court shall make a based on facts in the record, as to whether not the return of the child to the custody parent of the natural an poses unacceptable risk to (cid:127) safety the future of the child.”

In parental cases where the termination of rights involved, is, said, strong presumption there as we have that the child’s best by maintaining parental interests are served rights. only It is convincing when clear and evidence exists termination, may a by are child’s best interests served that the parent permanent- his child parent’s right constitutional be view, case, considering ly In the instant foreclosed. our capacity, as to mental by petitioner’s made CCDSS allegations petitioner offered to parenting and reunification services alleged sufficiently tailored to his not sufficient and were that, support finding with sufficient specific situation services, parental tailored he could not maintain a properly (Sec.5 313(c)(2)(i)). was children. There relationship — only agreement one reunification between evidence petitioner agreement and CCDSS. The parent natural into, was, said, as we have deficient required enter then, application to his needs. Even the evidence specific its fulfill his petitioner major made a effort to supports agreement, limited under that albeit somewhat obligations easily no reading may While be ascer- his then level. there when the levels of assistance that must be offered tainable is in- parental rights parent of a “disabled” termination volved, above minimal CCDSS that level is far services judice. in the sub offered case own,

Additionally, petitioner sought help improving in on his (Sec.5- literacy. thus reading ability his and his level 313(c)(2)(ii)). par had with foster children bonded well The ents, bonding and display feelings also some appeared but (Sec.5 313(c)(2)(iii)).20 children, while petitioner. The — foster adjusted parents well to their foster and apparently homes, appeared petitioner when he was also comfortable with permitted to child was in school and be with them. Neither community any adjustment. no as to there was evidence (Sec.5 313(c)(2)(iv)). —

20. As in many forcibly removed cases where the children have been custody bonding may parents, natural be from the of their issues may severely by extent of that It increas- affected removal. become bonding ingly In difficult maintain because of the circumstances. difficult, essence, process bonding makes the then social service rely bonding ihe termi- agencies on the lack of as one of reasons for nal ion.

There was that petitioner uncontradicted evidence had made and extraordinary extensive efforts to further reunification had, with his ability, children. He to the best of his attempted him, more, everything do almost asked of in order to capable become a parent. Additionally, currently he had steady employment, steadily and had been employed for ex- periods tended He living time. had facilities that included a bedroom the children. There is no evidence that itself, facility, presently unsuitable. There were relatives nearby that could upon request. offer assistance employ- His had assisting ment consisted of in persons disabled assisted (Sec.5-313(c)(2)(v)). living care situations. In far so as the reflects, record regular he maintained as a contact with his (Sec.5-313(c)(2)(v) 1). as permit. children CCDSS would There is little evidence to which we have been directed record that he has declined to payment contribute to the or, expenses children, matter, of his for that that he is at present time unable to support. contribute to their (Sec.5-313(c)(2)(v) 2). The record petitioner reflects that has attempted regular to maintain contact with his children but that, degree, stymied some he has been attempts by his (Sec.5-313(c)(2)(v) 3). position by taken CCDSS. services, evidence is as unclear to whether additional specific needs, to petitioner’s would bring lasting parental about ad- justments facilitating Nevertheless, reunification. it is clear only regular services single havé been offered under a program. reunification It is by petitioner, asserted witness, expert and amicus curiae that additional services that particularly are appropriate for in petitioner’s someone situa- available, tion are but have never been offered to him. It is unclear, thus certainly not to a convincing clear and standard, proper additional services bring could not about adjustment permit an that would reunification in the reason- offered, able future. Until such services are and petitioner services, avails or does not avail himself of such it is not clear (Sec.5-313(c)(2)(v) 4). that reunification is unforeseeable. Equally, we do not believe that presented evidence below satisfies the clear and convincing standard as to the 5-313(d). indicate As we section conditions or acts under evidence, elsewhere, conjecture, opposed as there is little that an extent inherently disabled to such was petitioner that for of the children for the needs would be unable care he (Sec.5-313(d)(l)(i)). had, in He of time. periods considerable of part as a fact, persons of disabled for other cared the needs read, but adequately steady He could employment. his high was a deficiency. He to address that taking was classes There living facilities. adequate He had graduate. school mentally impaired that he was was no scientific evidence —that Dr. Blum- that was made CCDSS assumption was an was, no that but undertook presumed he berg, apparently who extent, impairment. Dr. any, if of such to establish the tests that the tests Blumberg perhaps opinion of mistaken was given to of could not be impairment to determine extent that was no evidence who could not read. There someone neglect willful acts of abuse or petitioner had ever committed fact, was unable to care respect to the children. In when he Tristynn temporary period approached for a he CCDSS (Sec.o 313(d)(l)(ii)). is no evidence seeking assistance. There — petitioner “repeatedly” give that failed to children food, shelter, in the record is adequate only etc. The evidence for a when unable to care that the one occasion he was child, that seeking assistance. Since he went CCDSS moment, custody he has not had the children. prob- apparently was bom with health

One the children mother, drug addiction of the not the lems related to the had, petitioner that or petitioner. There is little evidence has, Nonetheless, attended any drug problems. alcohol or he to which he was drug programs all and alcohol rehabilitation referred, that he had no only programs to have those conclude (2). (Sec.5 313(d)(l)(iv)(l) no problems. There is such — petitioner subjected ever either evidence torture, abuse, only or abuse. The children to chronic sexual any neglect it was not chronic time there evidence and, fact, sought assistance life-threatening, petitioner neglecting is not when he seeks from CCDSS. One children (Sec.5-313(d)(l)(v)(l). There is no assistance from CCDSS. 696 any that has of petitioner

evidence the ever been convicted (Sec.5 313(d)(1)(v)(2). criminal than chil offense. Other the — case, at in that dren issue the instant there is no evidence siblings. petitioner parental has lost rights ever the children’s .5-313(d)(1)(v)(3) (Sec in clearly

This law establishes that the relevant standard proceedings convincing TPR is to be “clear and evidence” in and what is “the best interest of the child.” In In re Mark M., 687, 705-06, 332, (2001), recently Md. A.2d 365 782 343 we importance of interest of the child” reiterated the the “best Family standard within the context of Law Article of the the Maryland: Annotated Code parens patriae,

“Pursuant to the doctrine of the State of those, Maryland caring has an interest in such as minors, Boswell, who cannot care for themselves. See 352 218-19, Md. at 721 A.2d 669. We have held that ‘the best may child precedence parent’s interests of the take over the visitation, liberty custody, interest in the of a course Boswell, 219, 669; adoption dispute.’ 352 Md. at 721 A.2d at 10941, 113, see also re No. 335 Md. at 642 A.2d Adoption In ... ... (stating controlling at 208 that ‘the factor what child’). interest of That which will best best serves the the promote particularly consequen child’s welfare the becomes tial in jeopardy.... where the interests of child are As we in Adoption/Guardianship stated In re No. 334 A91-71A 538, (1994), Md. 640 A.2d 1085 child’s is ‘a the welfare ”....” importance’ consideration that is of “transcendent In it determining whether is in “best the interests” children, Edward, Tristynn here completely terminate children, parent’s relationships a natural with his court (the County) Circuit for Carroll was required Court to consid- 5-313(c) er the factors in section that listed we have extensive- ly discussed above. We are well that the trial court “is aware facts, unique position to marshal applicable assess situation, fulfilling determine the correct means of M., 687, 707, child’s best interests.” In re Mark 365 Md. (2001). argues A.2d 343-44 in its how the CCDSS brief making Circuit Court in its determination neither abused its erroneous, and clearly findings nor that were made discretion supported the Circuit Special Appeals Court of not to have found the Circuit Court findings and Court’s Appeals opined: Special The its discretion. Court abused instant hearings conducted Circuit Court “The best it was in the court concluded matter.... parental Mr. F.’s children to terminate interests rights. below, evidence, say we cannot reviewed

Based in its factual clearly erroneous that Circuit Court by its discretion terminat- or that it abused determinations rights.” ing parental Mr. F.’s J9711031, Nos. and Adoption/Guardianship

In re J9610436 2001). (Court May 1579, slip Special Appeals of op. No. case, in it is that this evident Upon our review record in of convincing the record was not clear and evidence there that the “best presumption to overcome the this case sufficient retention, generally, of of children rest in the interests” actu- at the time parental rights, although present petitioner’s he There was a failure custody may appropriate. al not strong presump- standard the by convincing a clear rebut by retaining legal tion that a child’s “best interest” served trial court parents. his or natural relationships with her in finding in and abused its discretion termi- erred otherwise rights. nating petitioner’s parental court, considering trial in the factors hold that

We 5-313(c) 5-313(d), an erroneous under section reached sufficiently so that factors had been satisfied conclusion those convincing evidence the best as to establish clear by now would be better served interests of the children right to be terminating petitioner’s fundamental constitutional of to his children. shall reverse the decisions parent We case, In this when court and the Circuit Court. intermediate alone, and within the context of Title considering section 5-313 whole, ample Family Law as a there was not 5 of the Article properly evidence to conclude that Mr. F.’s disability, even if it exists, permanently incapable him caring renders for his unsupervised children in an setting. Nor is there sufficient adequate evidence CCDSS has made reunification efforts to improve petitioner’s parenting Certainly, skills. there was and convincing present clear evidence to warrant a termi- parental rights. nation of his

b. Decisions Below majority appellate A upheld the intermediate court ruling County of the Circuit Court for Carroll that it inwas the best interests of the children to not Mr. be returned to In doing, Special Appeals F.’s home. so the Court of cited body its discussion a of out of addressing state case law parental rights termination of analogous cases with facts judice. the facts in the case sub There is case law elsewhere parents, eager keep where who were and care for their participate plans, children and treatment stripped were parental rights parent’s because one or both méntal retar- dation, retardation, limitations, mild mental mental or mental despite parent’s wrongdoing the lack of pre- and deficiencies— cases,21 Relying sumed love. Special these the Court of Appeals’s majority rejected Mr. principal F.’s contention that given opportunity he has been a sufficient to demonstrate capable that he is of in reunification the future and that it would be in the of best interests the children to continue efforts at improving parenting goal skills with the of reunification.

Additionally, the Circuit Court at point: stated one “Fur- thermore, Tristynn the Court finds that and Edward have continuously custody been out of the of Mr. F. and in the custody year.” of for than CCDSS more one In cases such as this, parents children, undeniably who love their as does Mr. R.M.S., 41, 816, Ill.App.3d In re 187 134 Ill.Dec. 542 N.E.2d 1323 (1989); 14, Terry, (2000); Mich.App. In re 240 610 N.W.2d 563 In re D.L.S., 435, (1988); T., Joyce 230 Neb. 432 N.W.2d 31 In re 65 N.Y.2d 39, 705, (1985); 489 Montgomery, N.Y.S.2d 478 N.E.2d 1306 In re (1984). N.C. 316 S.E.2d 246 needed, placed F., assistance is are assistance when and seek altogether. they go If losing children great risk their Depart- if help for the Department the Social Services basis, children, with on a temporary ment their even places (and type of they with whom bond that is the parents foster found), runs parent the hopes one are natural parents foster in foster having bonding risk of that the very real later created, inaccessi- home, part, and court forced by CCDSS same bility children, major by a factor to his own be used words, if parental rights. In other court to later terminate his may be forced help, one the removal of one’s children seeks that, her, ongoing an situation upon setting progress him or week, day by year, through passage by day, year week and, time, parent’s bonds with the children lessens of reunifica- through de-bonding process, that lessens chances inherently process, process appears a a tion. In such exist, most when parents thing risk the dear to them Department. seek from assistance erroneously that Mr. F.’s The trial court also found disability22 as 5- mental limitations constituted section 813(d)(i) states, parent consistently un natural “renders the psy ongoing physical able for the to care immediate long periods of time.” There chological needs child evidence, convincing meeting was not sufficient clear standard, that the support trial court’s determination parental ap complete petitioner’s rights termination of disability. propriate upon based mental The termination parental is a “drastic” rights fundamental and constitutional caution, measure, after only great and should be taken statutory con consideration of of the relevant extensive each today holding forth 5-313. siderations set in section Our i.e., rights, the idea that fundamental constitutional reflects here, completely can rearing rights only the child at issue be convincing most upon terminated and evidence clearest (other have been unable find in the record sufficient evidence We to “mentally conjecture speculation) petitioner dis- and was than scientifically measured. abled” as that term is uneducated, disabled, parent, poor, that the however or cannot not, assistance, proper and will even with be able to sufficient- ly parent his children in the reasonable future. cases,

In termination analysis the “best interests” automatically interpreted should not be to a for a be search perfect, perfect, or any more even a better situation for particular perfect. child. Life is not Children born into are different circumstances —some into wealth and other advan tage, some not.

Under the facts of sub judice, petitioner’s parental the case rights should not have been Specifically, terminated. consid ering insufficiency and convincing clear evidence disabled, petitioner mentally was CCDSS’s non-conformance with its duties fully under section 5-313 to offer more tailored disabled, parent mentally services to a it deemed and the pressure agency inherent on a social adoption service seek permanent as a situation agency’s receipt when the of federal discourages funds extensive reunification efforts and encour ages adoption, compared with petitioner when all the efforts parent, has made to be a petitioner better and with what can offer to the child—a termination of parental rights presently is unjustified and improperly strips constitutionally Mr. F. of guaranteed rights. significant There were failures this case regard petitioner, CCDSS under section 5-313 with ultimately such failures undermined the best interests of Edward, Tristynn and which still presumed is to be reunifica tion parent with natural desirous of reunification.

Primarily, petitioner, CCDSS failed and did not adequately perform statutorily its mandated duties under section 5- 313(c)(2), by failing provide timely sufficiently exten- array programs who, sive petitioner, available for while perhaps hampered by cognitive limitations, some eager able, may properly services, well be tailored to care for his children. From petitioner the moment came ask CCDSS, help, discern, as far as provided only we can untai- have, lored reunification services. CCDSS should instead of providing need, services for which there little or no consistently who petitioner for provided specific more services to his genuine desire cai*e for and displayed willingness disposition services had at its better suited children. CCDSS petitioner.23 for both range witnesses was stated times the many

As of the petitioner, posited possibility no one ever against and for his unsupervised control immediate petitioner regain of adoption and petition guardianship children CCDSS’s if for are, thus, case not concerned in this to be denied. We ivere and custody the immediate complete with reunification hold that on merely with the We petitioner. children record, not in this termination was warranted. evidence Moreover, per- of petitioner’s main CCDSS’s contentions Tristynn Edward imme- parent inabilities to and in the ceived petitioner “has a future do to the conclusion diate not lead consistently unable care for the disability that renders to [him] long periods ... child for ongoing and needs of the immediate 5-313(d)(l)(i). under of time” section is, us, able, according to before even the record

Petitioner (if exist), “cognitive to financial- with his limitations” now Tristynn for and Edward’s care maintenance. ly provide school, high consistently employed. has petitioner Since been relatively has demonstrated a dedicated work ethic. Petitioner not history many has a better work than fathers who are He mentally impaired. to be has demon- alleged Petitioner also dealing caring successfully this work while strated ethic Palsy at the Center for those United Cerebral with severe ability disabilities. This to care for those with severe disabili- petitioner’s an might parent- be indication that immediate ties exist, if they dissipate within near ing problems, would While we did available research services to CCDSS clients, brought light by present to its we note the services those writing this groups comprising and the amicus brief in The amici case. parents developmental numerous services available to with note assist agents position are in aware of and disabilities. CCDSS the best be services, but, specific County offer Carroll circumstances such as here, ihey allegedly present or those extant should also find other state agencies allegedly cognitively parents. help based limited time, children, aging petitioner’s continued growth parenting skills. judgment Special reversed, Appeals the Court of

and the shall case be remanded to that court for it to reverse judgment County. the Circuit Court Carroll THE

JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED. REMANDED CASE TO THAT COURT WITH TO THE INSTRUCTIONS REVERSE JUDGMENT THE OF CIRCUIT COURT FOR CARROLL COUNTY RIGHTS; TERMINATING PETITIONER’S PARENTAL IN COSTS THIS COURT AND IN THE COURT OF SPE- CIAL BE PAID APPEALS TO BY RESPONDENT.24 primary The dissents misconstrue the issue before the Court. This is involving parent’s right not a case the custody to the immediate of the dispute holding, children. The Court does not the lower court’s as “[Tjhat stated in the parent dissent Mr. F. was not a fit custodial at the is, instead, hearings.” involving right time of the This a case the the of State, through agencies, rights its to forever parents terminate the of parents, parents engaged be when those have in no willful conduct that justify taking away important would the and fundamental constitu- rights. "although present tional We noted above at the time actual custody may appropriate,” many not be by ”[a]s was stated times range against the petitioner, of witnesses both for and no one ever posited possibility petitioner regain the unsupervised that immediate merely control of his children.... We record, hold on the evidence in this holding termination was not warranted.” Our is that in view of parent the fact that the willfully in this case was not abusive and did not and, neglect only custody light the child that has been in his in involved, important rights basic and fundamental and termination, constitutional case, on the record now extant in presently this was not abundantly warranted. We have addressing made clear that we are not present custody. the issue of Court, Judge stating: Harrell’s dissent criticizes the "I fault the Court, however, music, Majority listening of this the but not the words.” we What have done is to consider the parent’s status of the efforts, nothing intentions and and determined that in this case war- present parental rights. rants the termination of his What the dissen- evidence, acknowledge majority ters fail to is that the holds that the consideration, however the dissent characterizes our be it words or music, support parent’s does not the abolishment of this innocent rights. constitutional dissenters, accusing majority while ignoring the "much of about,” fail, job utterly, recognize what any our court’s we,

primary obligation is to the judges, Constitutions. It is what as uphold. take an oath to What we parent have said is not that the WILNER, in which RAKER Opinion by J. Dissenting JJ., HARRELL, join. separately I write Judge Harrell’s dissent. joined

I have that the just about the decision not 1 am concerned because Opin- majority but also about tenor reaches Court against dis- involve discrimination This case does not ion. any involve It does parents poor parents. abled It of Mr. F. does parental rights upon legitimate trampling sim- engineering designed any fuzzy-headed social not involve It environment. into a more affluent ply to move children transgression any legislative or executive does not involve (1) in which simply It is a case rights. basic Constitutional found to be in need children were nearly years ago, six two (2) court, or attack appeal no from juvenile assistance (3) made, made efforts were has ever been on those decisions (4) father, but the conclusion reunify children with their found drawn, trial court based on evidence that in and was not position, that Mr. F. was not persuasive, future, to able to foreseeable be likely position to be (5) children, needs, and special for the who have properly care to care adoptive parents willing able prospective there are to Everyone seemed permanent for the children on a basis. one, in open it should be an agree adoption proceeds, that if an may Mr. F. maintain contact with the children. which right to do raise Although parents have Constitutional so, a court children, if to do the law allows their are able circumstances, specified parental rights, under terminate be served of the children would best when the welfare decision, justify such a the court of action. In order to course statute, in findings on issues stated the must a series of make very so in this case. These are often and the court did sides, cases, but flowing all heart-rending difficult and tears govern. that must of the children safety it is and welfare the that, record, child, right custody it present of his but on this has the non-abusive, non- relationships with this is too to sever all soon time, children, neglectful find "better parent, all with his in order to rights by doing so. The parents,” to violate his constitutional rights. parents have bottom line is that 704 us,

It is for trial judge, weigh not for and consider the evidence, and the fact that might judged mere we have differently evidence than the trial at a judge have arrived altogether different conclusion reversing does not warrant judgment. simple These are principles and well-established that, view, both procedural substantive and law in my have gotten lost in opinion. the Court’s has thrown Court wind, and, so, appellate restraint in doing only has not subordinated the welfare of two these children to its incorrect parent’s of how 'far rights view extend but has also injected uncertainty proceedings considerable into termination generally.

Judges RAKER and HARRELL have authorized me to they join state that in this dissent.

Dissenting HARRELL, Opinion by in which RAKER J. WILNER, JJ., join. respectfully I ago dissent. Some time it was observed

“hard cases bad law.” make This is such a case. Giving proof to that aphorism, Majority opinion in this case in engages appellate fact-finding justify an effort to its result, desired disciplined appellate heedless the need for review of the extraordinarily record this difficult termi- parental rights nation of case.

Mr. F a compelling petitioner. party, attorney, No no no witness, and least of all not trial judge, expressed any doubt that Mr. F hard-working, is other than “a sincere man who loves his children and promote seeks to their well- being.” This same cast of essentially agrees, characters however, that Mr. F is intellectually impaired. Although the extent of impairment was not quantified neatly in a expression, numerical I think it must be conceded on this Justice, Campbell, parte 1. John Long, Lord Chief in Ex 3 W.R. 19 (1854), cases, said, wrote "Hard it is make bad law.” Order, judge’s 2. Page August And dated 23 Memorandum .Trial 2000.

705 that it was notwithstanding), (Mr. opinion own F’s record found, not a fit that Mr. F was so judge trial and the proven, The hearings below. of the at the time parent custodial more than anecdotal conclusion was that supporting evidence opinion. The real by Majority the as dismissed speculative, or degree of such a impairment his whether dispute was a fit parent to become that, potential his in to maximize order (and to Eddie’s regard giving Eddie due Tristynn and needs) future, FMr. in the foreseeable extraordinary medical virtually full-time support3 only “drop-in” external required confidence he expressed Mr. F’s witnesses support. months, become, parent a fit custodial 6-12 could within did not credit judge The trial drop-in types of services. only and, however, that was before on the evidence testimony, that Mr. him, was little likelihood instead that there concluded in be remedied parent as a would shortcomings custodial F’s parental F’sMr. judge The trial terminated the near future. care continuing the children foster opposed to rights, as limbo, of the unlikelihood reunification in the face ready, presence of two sets future and the foreseeable willing, adoptive “parents.” and able by so analysis, as invited to do opinion’s Majority

The evidentiary Amicus, essentially fixates on two and Petitioner (1) of, Blum- weight given, to be Dr. quality and issues: (2) fitness; asserted F’s opinion parental as to Mr. berg’s County by offered the Carroll shortcomings in the services (DSS) F to Mr. to facilitate Services Department Social Majority glosses-over children with him. The of the reunion how it would affect Mr. F’s condition and evidence as to if to his care ability to his children were returned rear To extent or in foreseeable future. custody, now Blumberg’s Dr. gave weight judge trial considered page judge’s (occupying paragraph but opinion 2000), August it was as and Order of Memorandum intensity temporal witnesses of the some of Mr. F's estimates ranged per week. jhours from 6 to 15 of such needed services 706 5-318(d)(1)(i)4 (“whether

required § factor of FL ... (i) following continuing or serious ... condition[ ] exist[s]: parent natural a disability has parent renders the natural consistently unable to care for ongoing the immediate and physical psychological or long needs child[ren] time”), periods of and confined to “mental retardation” as 7-101(Z) (2000 §in further defined Repl.Vol.), Md.Code (“a developmental Health-Gen. Art. disability that is evi by significantly denced subaverage functioning intellectual individual.”). impairment adaptive in the an behavior of The judge’s conclusion that Mr. F disability, suffered from such a however, dependent was not on Dr. Blumberg’s opinion alone. judge noted that he considered the other witnesses called DSS, by F, as as well those called Mr. each of whom also acknowledged, ways, various Mr. F’s intellectual limitations. The issue in this not case is whether Mr. F was and is precisely, disabled. More it support was how much it would take to determine if that disability mitigated could be to the degree that a fact-finder could conclude that there was a F, probability future, reasonable that Mr. in the foreseeable children, fit parent could become a for two small one of whom extraordinary has medical F needs. Mr. claims it was DSS’s job to, to supply, or direct him services tailored to overcome disability, degree to the possible, insofar as it him made than parent.

less a fit it DSS asserts had no such obligation or, alternatively, that it would take supervi- around-the-clock sion F of Mr. and the children and other it assistance which (nor can) and, record, does not offer on this no govern- other agency organization mental adequately has been shown circumstances, i.e., be able to offer to Mr. F in these a specific mentally-disabled, single parent seeking to raise care for these two small children.5 An examination of the record (see Majority 19), opinion op. 4. As does the n. all references in (1984, Maryland § the dissent to 5-313 are to Repl.Vol.), Code 1999 (FL). § Family 5-313 of the Law Article appellate Amicus and Petitioner’s supplement counsel’s efforts to notwithstanding, trial court judge presented record the trial was not fact-finding was judge trial reveals that his before to a supported, were clearly erroneous and his conclusions standard, by convincing the facts evidence. clear and Blumberg psychiatric evaluation performed Dr. forensic parental in order to determine his F in Mr. October F, Blumberg Mr. Dr. preparation In to meet with fitness.6 His provided by written file DSS. the extensive case reviewed meetings F of two place Mr. took examination of clinical and one hour on 21 October duration on 15 October 1997 hours 1997.7 F, Blumberg “although that concluded Mr. well-mean-

Dr. well-intentioned, limita- has intellectual significant and ing think, tions, that, seriously I handi- and it’s those limitations especially of ... so with ability his to take care children cap!.1 problems and having a of medical youngest his child number “in F, Blumberg, Dr. was complications.” according Mr. to and, difficulties, apparently, with] complete any denial of [even number, adequately specificity, or relative certitude of with either the urged for as now are available. sources outside assistance testimony only objection to of noted Mr. F’s trial counsel the 6. Blumberg, accepted objection expert in Dr. who was without as an argument lodged sup- psychiatiy, technically was and without or one context, argued point' in the port. In it could be from the context objection that it proceedings when the was raised amounted training challenge Blumberg's experience express Dr. an such case, however, opinion; if were the the record that demonstrates objection specific experience training, Dr. to be As to his baseless. Blumberg performed parental he had six evalua- testified that fitness (now Supreme City for Court tions for Bench Baltimore the Circuit City) during fellowship University Baltimore his at the for forensic Maryland an Medical School and additional 20-30 such evaluations private mostly subsequent practice, the course of his in cases in the Circuit Courts for Carroll and Harford counties. Blumberg Dr. stated he could not administer the usual Minnesota (MMFI) Personality Inventory F F to Mr. Mr. was Multi-Facet because counsel, enough. appellate to read Mr. his unable well F’s trial unlike Amicus, mounted no contention that the MMFI could have counsel event, any In lack test been administered nonetheless. of an MMFI itself, Blumberg's argued, result has not been in and to invalidate Dr. opinions. supervised visits [with children] needed considerable assis- tance.”

Dr. Blumberg equated Mr. F’s impairment intellectual disability compromised parenting ability. As exam- ples itself, disability of how this would manifest the witness that, explained judgment because Mr. F’s range “very (a) limited,” likely anticipate recognize he would: fail to (b) and, signs impending problems; medical be unable to children, work, set limits for help with school or address problems not, their emotional as grew older. It was Blumberg, Dr. a question being of Mr. F abusive or deliber- harmful, ately unintentionally neglectful but that he would be respond or unable to appropriately to the children’s needs did not appreciate because he what those or might needs were response be. Mr. F’s Dr. Blumberg presenting such issues during to him essentially the examination was that all the children needed enough. was love and that would be opinion,

Factored into his Blumberg acknowledged Dr. Mr. F probably improve could his reading skills to achieve a basic, very primary comprehension, level of but that it would read, be difficult for him to example, ever learn to a newspaper. Although he Mr. F believed could learn some additional, skills, parenting fundamental Dr. Blumberg did not think would to he be able learn the necessary number skills children, to parent properly two special these one of whom has needs himself. receiving

After Dr. Blumberg’s report written into evi- dence,8 judge the trial Blumberg asked Dr. if any he saw probability that improvement there would be an in Mr. F’s ability to a fit parent be for these children the future. Dr. Blumberg responded in negative, explaining that Mr. F’s impairment intellectual a permanent was condition with which he was born throughout and would continue his life.

8. Mr. F's trial receipt "only subject my counsel noted that its was which, 6, prior objection,” we largely as noted at n. was unarticu- infra lated.

709 who Ramelmeier, employee a former the DSS Deborah assigned Mr. F’s children’s cases had been the caseworker about inception until November testified from their develop children conditions. Both were physical children’s which, cyst together had delayed.9 Eddie a brain mentally required daily monitoring to identi build-up, fluid with related also suf fy implications. and ward-off health Eddie serious and serious persistent pulmonary hypertension from fered allergies.10 to environmental reactions general of DSS’s explained Ms. Ramelmeier next course agreement work F. one Although efforts to with Mr. service executed, 1996,11 subsequent July rejected on Mr. F two was 3 1996 and agreements, one offered on 13 December proposed It Mr. F 23 1997.12 unclear whether April another on respective parents, Through the children’s efforts of their foster 9. delays by control the time of developmental were overcome or under hearings below. . witness, Pflugrad, to Eddie’s 10 Another DSS caseworker Dana testified last affliction. agreement F he service entered into with Mr. that 11. The one included Ramelmeier, According undergo drug and alcohol evaluation. Ms. drugs. he never he told the evaluator drank alcohol did not use Accordingly, Mr. F action evaluator rated a non-user no further Indeed, thought necessary by when F testified evaluator. Mr. below, only life two he asserted he drank one time in his and that was previous birthday, April on his beers Ramelmeier, however, that, upon learning F's Ms. testified of Mr. result, questioned alcohol evaluation she Mr. F because he had ac- knowledged larger meeting played to her in earlier alcohol an part life he in his than he had stated the evaluation. She asked that evaluation, do, initially another which slated submit he that he would having followed-up but never on another evaluation. passing F complains vehemently 12. Of interest because Mr. of the lack DSS, that, closing I of services offered him note in his trial counsel's argument judge exceptions hearing before the trial at the end of the visitation, regarding June 1998 the Master’s recommendation as to "[sjince DSS], [turning the [Mr. F] counsel stated children over he’s gotten a lot. of services.” Ms. Ramelmeier confirmed this in her testimony hearing [Mr. at that as she did "recall that for F] not asked any Mr. F apparently other services.” When one considers (not by represents appeal) represented counsel the same one as him on rejected April proposed at least as time he tire services rejected proposed agreements the on his own volition or the advice of It counsel. was after the last proposed agree- rejected by ment was F May Mr. on 6 1997 that DSS notified May him on 13 1997 that it was changing plans its for the children from attempts reunification with Mr. F to a permanency plan of parental termination of his rights and possible adoption. She Department’s summarized the think- ing regarding change permanency plan: struggle that, dealing we’ve been with is although desperately

Mr. F wants to care for his children and he children, loves his we very strongly that he doesn’t have feel ability, regardless what services we could provide for him. We are never going to be able to provide services children, enough to make him able to care (emphasis his added). Although cataloguing logistical veracity some and problems (such during with Mr. F the time she worked with him as missing appointments to visit the children due to his erratic schedule, work forgetting re-schedule, to call and telling her truth about whether and how electricity he had at his dwelling, status), and other matters relative to his Ms. Ramel- meier noted that the main and continuing problem over the eighteen months she worked with Mr. F and observed his supervised numerous visitations with his high children was the degree of supervision he identify needed order to skills, remember the most fundamental parenting such as feeding, changing diapers, playing children, with the teaching to talk. Although them Mr. F improved parent- ing time, skills somewhat over period this he nonetheless required constant reminders supervision, lest a child be by choked inattentive feeding, overwhelmed number offered, toys failing proper receive teaching (exemplified by Mr. F’s desire to teach alphabet old, to a 10 month teaching sounds). before him how even to utter intelligible agreement, complain a failure to then about the services offered makes arguments during related mounted appellate stages the trial and appear genuine. this matter somewhat less notions Mr. F had unrealistic noted that also Ms. Ramelmeier of for children such tender appropriate activities were of what was desire, shortly after Eddie expressed his ages, such as go and to Hershey Park born, to both children to take pool. public at a swimming Ramelmeier, Helga Ms. Ms. replaced who

The caseworker children’s cases Anderson, supervised testified next. She gleaned examples, a series She narrated until March 1998. of his monitoring F with Mr. from her interactions difficul- F continued to have boys, how Mr. visitations with the children, the two between dividing appropriately his time ties to take the trips proposed he notions field inappropriate his (such prob- and other night game), on as an Orioles children representative consequence, and greatest potential lems. Of unrealistic, an combined with reading skills of Mr. F’s lack out for best interests looking to simplistic approach gift a children, brought Mr. F recounted how Ms. Anderson time, warning Eddie, that bore a age two at the May 1998 to hazard, was that, choking it potential to a box due on the When age of three. for children under inappropriate toy if the box to see he had checked the asked whether three, had responded Mr. F he under appropriate for children toy for Eddie. appropriate and that it was an checked the box responded Ms. Anderson questions, ultimate Asked certain thusly: observation, to have would Mr. F be able

Q. your Based this time? boys with the unsupervised visitation safety I for the really A. 1 don’t believe so. have concern toya to when If he’s unable determine of the children. hazard, choking he—I—I have because inappropriate appropriate- give if would be able to medication concerns he boys if become recognize warning signs if ly, he would turn to the And, willing not again, ill. he—he does seem as to whether help, and I would have concerns Agency for boys get adequate supervision. would could Department that the Q. Are there other services any to Mr. F at this time? provide

A. Not to my knoivledge.

Q. you’ve case, Since been involved has Mr. F made adjust efforts to his circumstances?

A. I think Mr. F has very very tried hard. It’s obvious children, that he his that he would loves like have him, children with that he would like have chance to be father his children. I think everything he has done believe, within his I capability. unfortunately, don’t that’s enough provide to for safety of the children. added). (Emphasis interjected

The Court itself in questioning of Ms. to inquire special Anderson about requirements for Eddie and ongoing his medical care needs:

THE interrupt COURT: We’ve—let me for a second: testimony mother], From the of Mrs. Miller [Eddie’s foster I get impression that problems Eddie has a lot more than Tristynn does.

THE WITNESS: That’s correct.

THE Okay. COURT:

THE Tristynn WITNESS: does still develop- have some delays, mental ... I

THE COURT: understand that. THE ... enough WITNESS: but not to warrant services from the Infant and Program. Toddler So, THE Right. Eddie, COURT: past because problems medical and probably future problems, medical really needs caring some—someone for him going who is to practically mean, devote .full-time to him. I that’s the impression get that I from Mrs. Miller.

THE WITNESS: I—I think that he of his has —because skin, sensitive gastro he had ... reflux THE Right. COURT:

THE WITNESS: ... when younger, he was still has some problems with vomiting. I do believe he needs someone who’s very warning signs sensitive ...

THE Right. COURT: him medical get ... as to when THE WITNESS: attention. F,Mr. father, ivith his From contacts your

THE COURT: future, that, anytime present at the you do feel care that special level that provide Mr. F could Eddie needs? I not. do

THE WITNESS: added).

(Emphasis examination, trial counsel DSS’s Resuming re-direct her by establishing: of Ms. Anderson interrogation completed her possess Mr. F will you do follow-up, As a believe Q. Tristynn? parent parenting skills adequate being able 1—I think the issue so. A. I—I don’t believe appro- warning signs and recognize give medication expiration by knowing the food toys appropriate priate the child. age no matter what important, dates boys’ needs? financially to care Mr. F able Q. Is Order, he Support although he has a Child A. hasHe not— payment regularly. He made paying has been pay- another did not make February 10th of '98 and then regularly been so he has until 5th ment June view, would, my point from which paying support, child ability. question his financial call into responsible caseworker Pflugrad, Dana the current DSS She, Eddie, citing specific exam- Tristynn and testified next. F, improved with the point that Mr. even ples, reinforced attained, difficulties had continued have skills he parenting sons, his evolving needs of up changing with the keeping example, at that time. As one ages four and three who were F, Tristynn that certain opportunity to teach given Mr. an promptly discontinued engaging in should be conduct he was chair, simply in started a “time-out” placed or he would be loud, Tristynn long how he was telling without counting out if be consequences what would to count or going num- counting, at whatever did not cease before the conduct ber, stopped.

In response to by cross-examination Mr. F’s trial counsel as to why DSS had not offered Mr. F specialized in services view of his impairment inquire intellectual and failed to where such DSS, services could found by be outside of those offered Ms. Pflugrad explained my it’s “because belief that Mr. F would twenty-four need help with if the children hour/one-on-one home, placed were and I don’t believe that that may service exists. There be places some that would offer services, some limited but I’m not aware them.” Mr. F testified his own behalf. than attempt Rather verbatim, I testimony, characterize his set it forth at least in pertinent part, occasionally by and note footnote in what respects it was contradicted other witnesses (including F): support those who testified in of Mr. F____ Yes, my

THE WITNESS: name is Edward DIRECT EXAMINATION Q. right. All you? How old are thirty-seven. A. I’m

Q. work, you Since mentioned let’s—let’s talk about work. long you How Maryland have worked at Western College? A. I work at Maryland Western college for about five— years. five

Q. Okay. mean,

A. I started '90—I '94.

Q. All right. you do up What do there? Well, cook, clean, A. I I and I work on beverage line mostly.

Q. So, Okay. you work in the kitchen? Yeah,

A. I work inside the kitchen.

Q. right. All you What do make an hour? I six-fifty.

A. make

[*] ^{[*] [*]} :¡s ^{[*] [*]} Now, Q. Okay. go let’s back to your your job. first real — you Do remember when that was? Well, go I

A. were to like education center.

Q. The education center?

A. Yeah. that?

Q. What’s handicap place for like a A. The education center —that’s disabled kids. and like long you How there?

Q. Okay. did work Well, working I’ve been there —I was like school A. till I plus working all through I was there like school school, got they hired on like on full- out of me I’ve been— time.

Q. Okay. you What did do there? Well, I and show gym A. take the clients in—inside the stuff, a lot puzzles, and and take them the bathroom them potty I train them. Q. people? How old were these approximately han-

[interruption minutes while Court matter.] dles another Now, your I

Q. Okay. you job. back to Where take first was that? Palsy.

A. At United Cerebral

Q. your ... Was—was first

A. I’m not—over to the center. Now,

Q. Okay. Okay. you were counselor there?

A. Uh-huh. age

Q. Okay. group people you What were the worked with? ways up thirty.

A. One all the to—it’s about Q. do Okay. people What kind of disabilities those have? They syndrome A. have like a Down’s and a—a—United Palsy that’s it. Cerebral and—and

Q. Okay. you Palsy? What did do for United Cerebral A. I was a house counselor. And, counselor,

Q. Okay. as a house what you did do? Well, mall, I A. feed the clients and take them over to the push them around in a ... inside wheelchair and Q. you get How—how did them to the mall?

A. Inside a van.

Q. You van? drove the Yeah,

A. uh-huh.

Q. youDo have a driver’s license?

A. Yeah.

Q. Okay. you What did do else with them? Plus, they A. I feed them and couldn’t even move their cook, clean, arms and legs their and showered them give them their medicine. well,

Q. you? You don’t too read do No, A. I I ... don’t. read

Q. ahead. Go

A.... I read kids book.13

Q. you taking reading Are now? classes A. Yeah. Uh-huh. So,

Q. you how do give know what medication to them? Well, Parks, A. I got you see one client named Chuck know, initials, and look there first C for Chuck. Well,

Q. you how did know how much of the medication to give give and when to it him? Well, mean, like,

A. on the —I they the bottle have like a time and a date and all that. If I any problem, have I call up to—down to the office. So,

Q. Okay. All right. you did ever any problems have giving wrong medication? No,

A. I haven’t.14 13. entirely There was doubt this assessment was accurate. Ms. ,Mr. previously Ramelmeier testified gave that on one occasion she F a book, Mother,” Eddie, My Dr. Seuss “Are You to read to but Mr. F was unable to do so. Hardesty, person M. Charles who hired Mr. F to work at United F, Palsy support Cerebral and who testified in of Mr. indicated that Mr. you Q. many years How did work there? years.

A. About—about five-and-a-half So, people you Q. Okay. right. All were some Palsy Cerebral children were worked at United all adults?

A. adult. There was like center, And, at

Q. there was some children? Children, yeah.15

A. Okay. Now, you’re doing, what as Q. Judge tell—tell your reading? far as well, ..

A. . going I’ve been to classes Well— doing Q. help yourself What learn? you have been Help myself? A.

Q. you reading? Uh-huh. What have been reading A. I’ve been like a I was kids book sometime I go library like to a and went down last at like week phonic . .. hooked

Q. Hooked on Phonics.

A. Yeah.

Q. help you? Does that Yeah, good.

A. helped pretty me So,

Q. you your know letters? Yeah, I my

A. know letters.

Q. You sounds? know the mean, problem get A. I main my Yeah. like down together. like (unintelligible) sound the work to—like responsible [administering F “wouldn’t been medication]” have manager A would the clienls. house have done that. Palsy Hardesty 15. Mr. indicated that United Cerebral ran "homes for quadriplegic very physical adults that have other serious disabili- added). (emphasis ties.” Q. Okay. All right. you Let’s talk about where live. Is apartment, house, that a house or is it an a town or what? A. It’s a town house.

Q. How many bedrooms?

A. Two bedrooms.

Q. anyone you? Does live there with by myself. A. Just me

Ot Of v ^[*] -1: :¡: Q. youDo telephone have a there?

A. No. I can’t Uh-uh. afford it.

at a: at v sit Now, Q. Okay. right. started, All when this case first by you turning started Department. the children into the Is that correct?

A. Yeah.16

Q. Why why you did do that? — see, Well, mother, you you know, A. very she like drinking, drugging much into I electricity and didn’t no have I and—and didn’t have no food in I—I there and took them down Department to the thought Social Service and I I going get my was to kids got my electricity back once I turned back on.

Q. It happen, though, didn’t did it? happen. A. It didn’t even I go had to all through of this program and stuff and ...

Q. programs you What have done? A. a parenting I’ve done class and a parent parenting — (unintelligible) and I go parenting to class about two time week, tryin’ tryiri to learn how to abe better father — my towards kids.

Q. Okay. long you go How did parenting to classes? 11), Majority opinion 16. As noted in the (slip op. Tristynn at was brought by Mr. yet F to DSS on 28 December 1995. Eddie had not been born at that May time. When Eddie was born on 30 he care, directly hospital went through from into foster DSS. years. A. For about a—about three-and-a-half And, Anonymous, also? Q. you go did Parents A. Yeah. like?

Q. What’s that in, you Anonymous you where come A. Parents —that know, kids, know, your you talking relationships about kids, mean, you your I how control kids they’re and when bad, you what being tell how—in and when kids you how handle kids. way you your —how children, if you you If have the who call Q. were to would any had about what to do with them? you questions Well, all, know, you my I would call A. first of like—like any problem, Depart- I I would call like parents if had if I had any problem.17 of Social ment Service Now, you missed visits with . .. Q. any haven’t No, . .. A. I haven’t .... children.

Q —with the custody, I my A .... ‘cause this —since kid been into a since all, miss visit at any never never.18 so, Okay, any problems think with Q. you do there’s been the visits? No, I

A. never. Okay. discipline Do

Q. you the children? Yes,

A. Yeah. I have. feelings appear 17. Mr. F’s towards DSS to wax and wane. As his degree emphasizes, appellate a certain Mr. F counsel later (and portrays testimony, he suspicious in his of DSS distrustful Yet, cause, juncture testimony, argued). it he this his upon professed willingness any problem” call if he "had DSS impliedly parents judge, howev- which could not address. trial er, obligated viewed DSS was not to believe that Mr. F as a resource. categorical None- 18. DSS records and its witnesses refute this claim. that, while, theless, regular after a Mr. F's visits DSS conceded became frequent. Q. How do you discipline them? Well, you see,

A. my oldest Tristynn. one is kinda He hyper, play he wanna and sometime he holler and make noise and sometime he like throw stuff and I’m trying to not to keep throwing them from stuff I and tell him about like it, three time not throw stuff and keep going you he know, him, I you know. tell I’m gonna you sit inside mean, time-out room. I that’s like—like chair corner Q. long you How put do them in out? time Well, years A. two old like—like about two minutes and years three old about like three minutes.

Q. So, ... go by

A. I age. certain

Q .... you where —where did learn that? Well, one, A. I learned like I go a—number like to the go center like to school and bring [unintelligible] like a parenting class.

Q. All right. you you Do think ability have the to raise the children? Yes,

A. Yeah. I do.

[*] ^{[*] [*] [*] [*] [*]} so, full-time, Q you right? work ....— Yeah, A. I work full-time. Well,

Q. who would watch the —the you’re children when at work? sister, My my Pat;

A. mom or she ain’t workin’. THE your COURT: How is mother? old mom, THE My WITNESS: she about seventy. My sister, Pat, and she’s like—she’s watching my right niece revealed, testimony 19. As Ms. questionable Anderson’s it was whether F, although apparently Mr. particular aware of this educational and disciplinary technique, consistently apply effectively was able it to its intended ends. And, kids? my I her she watch two now and asked could say yeah. she

BY F’s trial [Mr. counsel]: already with her? Q. had a discussion You’ve A. Uh-huh. talked, to Department of Social ever

Q. Has the Services you help you out for case you might about what be there got children? No, they

A. haven’t. you given you or program told about ARC Q. Have or any anything? to call numbers No, see, someway, got find again,

A. You I’ve uh-huh. around, know, you or my out like own or like—or like ask (unintelligible) I or go over where work at like there mean, they bring like I never get a little bit advice. up towards me.

[CROSS-EXAMINATION] And, Q. you Pflugrad about Okay. had talked Ms. having boys]? birthday party for [the A. Yeah. Uh-huh.

Q. you give Why didn’t her more information about that? like, one, A. you More information? You see number know, any money, you know—and I didn’t have even and, party plus, got throw a I like rent stuff. bills and— But, ... Q. Pflugrad didn’t Ms.

A. Yeah.

Q you help paying .... ask if needed with for a cake party? for a

Q. Do .. . you Pflugrad asking you remember Ms. Yes,

A. did. she Q you help .... about whether needed some financial that? I,

A. say why know, Yeah. You you all, should you come to know, you all, know, you you well, and ask for help. some I mean, they my and, mean—-I sponsibility are anyway, and— know, mean, you mean, I that —I I do wanna throw a party mean, my know, kids. I that way, you I was kinda short n mean, on money money I got pay ‘cause rent. —I ^{[*] [*]} v ^{[*] [*] [*]} Q. you What services have asked for from Depart- ment?

A. What service?

Q. any Is help you there want from Department? A. Yeah. Uh-huh. Yeah. I help Some wanted —I wanted to ask from Department of know, Social Services. You I just them, know, you wanted how and what way, you to— know—how provide my would I for that, kids and all I mean, they Vena,20 like do with don’t—I mean —I mean, only thing they you know, want to they want do— well, I feel, way you mean-excuse me—the I terminate — know, mean, they I want to my rights. terminate Right now, know, you I’m kinda Department afraid of of Social Services.21

Q. Now, right. All you recognize you that when testified [your that, attorney] you, yourself, special have some learning problems. Is that correct?

A. Yeah.

Q. Okay. my

A. It’s reading.

Q. your It’s reading.

Now, you if given were special services, some—some do you you’ think that could problems handle the taking two them, children caring and—and aside from paying child biological Vena is the Tristynn mother of and Eddie. She and Mr. F were not married. 17, supra 21. See n. at-. classes, going from domestic

support, aside violence you raise children you you do think that could these —that every you Do get going single day them to school? you your that do that own? think could Yes, I A. could. going problem of—for

Q. Okay. you How to handle are instance, read, you haven’t if there are medicines since given, you are be able handle gonna need to be how problem? see, well, bit, I know. you you

A. could a little read Well— word, mean, my you only thing problem I is sound the know, Well, see, like, you you sit down with anyway, know. time, son, you my younger what he me like know—like morning, about probably need medicine five o’clock up and him. give wake it to right. So,

Q. you give your All if needed to child medicine hours, every know you once four how would to do that? Every A. four hours?

Q. Yes. Well, give just A. like watch the time it to them. and—and Now, Okay. you Q. you do drive? —do got my A. I everything. Yeah. Uh-huh. license and Q. youDo have an automobile?

A. I did have one.

Q. transport your How you would children? Well, father, I transport A. How kids? he my my would would let me borrow his car or I could take a taxi.

Q. Okay. Do know are to you where the nearest schools your home?

A. Nearest school?

Q. Yes.

A. Yeah. right. your All is

Q. How far the school from home? They go (unintelligible) High A. Westminster School round about three miles. Now,

Q. Okay. kids, for—for little is there a school near- by?

A. School little kids? There’s one downtown like at; front of post office use to be there’s one down there. Now, Q. Okay. you how do your shopping right do now? Well, A. How do I do my shopping? why me, only this I mean, I’m by myself, usually and, I my job eat like from plus, my off, day go like on I buy the store and some food and stuff.

Q. Okay. you refrigerator Do have a in your home. Yes, A. ma’am.

Q. Now, right. children, All you two any have made plans you shop as to how would pay for food for two children?

A.' Yeah. And,

Q. plans? what are those Well, A. Well, see, I take along you them with me. I just would my like—I wanna show kid way how and what I mean, would shop and I would especially like—I my my— and, mean, oldest son I just put I’d both of them like inside push them, like a cart I just say mean, I you “What want, cereal, you want and just tell what you’d me like to daddy eat and what like eat and all that.”

[*] ^{[*] [*] [*] [*] [*]} Now, Q. right. All you do know you how—do know who young doctor right Eddie’s now? Well, see,

A. you they never told me none of that stuff. see, You I asked Ms. Dana [Pflugrad] about his—about history, stuff, his—about his like his records and and I think gave gave she it to me one time and that was like me— and, about a ago plus, while I wanted his record like—like every month, Eddie, know, like see little you I want to get son, my to know I just study wanna their weakness and I mean, wanna like, know about there —I they cough, when know, you they go bathroom, when to and stuff. I they go when mean, know the time like just I wanna sleep. Now, if little Eddie still Okay. right. you do

Q. All know brain? cyst his any problems has because this that.22 They A. tell me never he’s other Do if he still has —if behind

Q. Okay. you know development? children did that. They

A. me tell right. you that he’s behind other Q. you All Do see —do other seem to a little slower than children? Does he be children? kid; Well, see, type you just that he

A. Eddie—he’s and, see, you like 1-0-1—1-0-123 little Eddie he’s need kid, mean, son, know, you my right. I other he’s all type of like, my and keep I him to bathroom I when take He— eye on both of them. F, I I right. speaking you, All Mr. when last was

Q. asking you you going how take care about were feeding them trans- your children and we’ve covered you taking them and to—them to the doctor’s. Do porting any you might if has young special know Eddie needs need address? Well, just I know how his habits is like eatin’

A. wanna habits, and stuff.

REDIRECT EXAMINATION you Q. Department explained in detail F] has the [Mr. special what little needs are? Eddie’s A. No. previously

22. Ms. that she had "extensive conver- Ramelmeier testified issues, no sations” with F about Eddie’s health but that he showed Mr. care at interest in Eddie's medical those times. I infer this to reference to attention. be a "one-on-one” Q. they you you If told had to every measure his head day, you could do that?

A. Yeah.

Q. you If you keep told had to him on certain every day, you medication could that? do A. Yeah.

Q. you If doctor told things certain to look out if reacting poorly else, see he was to a food or anything you figure could that out?

A. Yeah. sj!

Hs Hi Hs Hi Hi Now, Q. you anytime do intend to move soon. planning

A. I was on to.

Q. Planning moving out of the area?

A. Yeah. Uh-huh.

Q. to? Where Probably

A. someplace quiet. Q. you gonna Are move out of the Westminster area? Oh, A. (unintelligible). no Well,

Q. Okay. how you’re come—how gonna stay come here? Well,

A. ... more close THE COURT: Let interrupt me—let me just for a you get right second then back on the thought. same living You’re on South Center Street now? Street,

THE WITNESS: yeah. South Center THE COURT: What —what was that number?

THE One-fifty-two. WITNESS: THE gotta COURT: That’s be below going Green Street down hill ... Ah,

THE ... WITNESS:

THE COURT: ... or not? Street,

THE ... WITNESS: below right Charles ... But, THE COURT: below Charles? ... the church? beside

THE WITNESS: Yes, sir. there, isn’t it? noisy Okay. A little

THE COURT: is, Yes, drugging. drinking, it THE WITNESS: your parents your Where does THE COURT: mother — live? on Charles Street. They live over

THE WITNESS: Okay. THE COURT: go attorney], trial ahead.

Okay F’s [Mr. Westminster, but out of So, gonna move Q. you’re neighborhood? to a to move different you’d like Yeah, neighborhood. A. a different you but don’t Now, had a car you said that Okay. you Q. now? have one now.

A. Don’t have one get one?

Q. you Could Yes, I

A. could.24 one? you don’t have

Q. Why now because right for a car Well, no need I don’t have A. close, pi ... my job and everything’s so to work? you get How do THE COURT: every day. my bicycle Like on THE WITNESS: Cerebral employer at United Hardesty, Mr. F’s former Mr. longer employed F. No of Mr. Palsy, support testified was, of his Hardesty at the time Palsy, Mr. United Cerebral Flying Col- below, Vice President the Executive testimony serving Inc., organization Success, private non-profit a ors of since 1983 had worked full-time He with disabilities. people with disabilities. people with developmentally with disabled experience work

Based on his and Balti- Washington with children couples married telephone in his not afford to have F earlier he could 24. Mr. testified Thus, judge just may trial cause have existed for the there townhouse. could apparent he Mr. F’s conviction that the certitude of to doubt “get” car. and maintain a areas,25 opined that Developmental more he Disabilities (DDA) Maryland Administration Department of Health (DHMH) Hygiene & Mental variety offered “a of different drop-in support services” that “involve supervision or assis- tance in ... family the individual’s home based on his or services, however, her individual needs.” Such were not “set- up somebody for that needs supervision.” around-the-clock Mr. Hardesty “thought” Mr. F eligible would be for and types services, benefit from of DDA these which he character- judge ized for the trial as “help budgeting, [and] certain things you other and I granted, take for but wouldn’t necessarily keep us from living independently in communi- ty.” criticizing Blumberg

After Dr. offering opinion parental Mr. F’s only fitness based on 3 hours of clinical F,26 interviews of Mr. Mr. Hardesty suggested that such analysis of developmentally persons by disabled PhD.’s and only M.D.’s emphasize served negatives and overlooked strengths study subjects.27 him, their According to professionals medical simply end-up institutionalizing people, whom, many of pro-active had more positive approach utilized, been could in live the community-at-large vary- with ing degrees support. of external develop- Advocates disabled, mentally witness, such as the argue for concentrating strengths on the of the disabled individuals and viewing them environments, in their home and work strictly clinical settings.

Mr. Hardesty acknowledged that Mr. F “has some obvious deficiencies.” Invited trial judge to list Mr. F’s defi- adults, any 25. developmentally He was unaware of disabled married or single, living in the Westminster area .who had children. Hardesty 26. Blumberg Mr. was that Dr. also had received and unaware reviewed DSS’s extensive files on Mr. F and the children. Hardesty accepted by 27. Mr. expert “develop- court as an purposes mental disabilities” for critique Blumberg’s of his of Dr. methodologies opinion. and Mr. to re- strengths, Hardesty then his failed ciencies and deficiencies, but instead identified spond inquiry to the about ethic, trustworthiness, a a strengths: strong work as F’sMr. worker, people. other help and a desire to hard cross-examination, that he Hardesty acknowledged Mr. In to FMr. with his children. He also seemed had never seen offering regarding DDA not testimony his earlier contradict support disabled developmentally services around-the-clock employ- that appeared to concede his current persons,28yet he er, Success, only its to adults Colors of offered services Flying of Dr. Blum- criticism without children.29 Redirected Hardesty, admitting opinion, grudgingly and Mr. berg’s task perform “developmental Blumberg Dr. was not asked a assess- psychological parenting but a disability analysis, or ment,” may higher Mr. F maintained that have tested familiar Blumberg had Dr. interviewed him in a more better setting to Mr. F. And, you supports might Q.

28. in the talked about be available community through Developmental for him Disabilities Administration Hygiene, part Department a of Health Mental and that's correct? A. That’s correct. part Department Q. That's not of Human Resources Social Services? No. A. And, you they're -they Q. said that not- don’t have round-the-clock supervision available? supervision through A. There are all D—D.D.A. levels of available Flying provide variety Colors of Success is licensed to of different have, up very recently, provided supervision drop-in services. We supports may which some- entail six or seven hours a week to also, end, body twenty- supervision and we on the have that's other day supports. awake-overnight with four hours a And, peo people young Q. chil- that would be for — children — dren? right now. A. It's —it's for —it's for adults Also, supra. appellate light, Mr. F's See n. more refined needs, tailoring for not to be criticism of DSS its services it should advocate, witness, Hardesty, employer, noted that Mr. Mr. F's former friend, applying to talk and old admitted that he failed to Mr. F about any might services that DDA offer. opine to on a prospects

Invited time line for the Mr. F of a fit becoming parent, Hardesty custodial Mr. explained dur- ing cross-examination: Now,

Q. Okay. regard that, with why of Mr. F issue services, wasn’t referred for additional if Mr. F were re- any organization services, ferred other for additional how long you it do think would take him to an appropri- become parent ate for his children? I appropriate

A. don’t know what an parent is. Well, Q. I appropriate don’t know what an parent is either. F, If given additional services were to—to likely Mr. is it provide he’ll be able to for the needs of his children say within a period? three-to-six month thinking A. I’m three six months is an quick awful period of time. mean,

Quick. I period know, that’s a short you time. I I— think that if supports [Mr. could access the F] available year, within six months to a develop he could a number supports the skills. The—the that —that are funded through D.D.A. ongoing supports. are Usually you get into system. They their just forget don’t about you after six year, you months or a know. folks that There’re —there’re may receive Thousand or Two Thousand in sup- Dollars ports year. across the may somebody whole That stop- be ping week, in to check them once a or something like that. D.D.A. has the resources for things these kinds of and if ... needs [Mr. F]

Q. youDo you think that Mr. F somebody would need —do into his twenty-four come home hours a day or what kind services, your based on observations of Mr. F—what kinds services would he need?

IA. would that [Mr. believe would supports F] need some nature, drop-in are of a maybe week, hours a ten/fifteen know, you check on any [Mr. F] to see if he supports needs if anything, got questions, he’s if one of the children is displaying this kind of behavior or symptom or something,

731 care, day or school at happens or that happens this whatever, about it ... There —there and unsure [Mr. F’s] may that he things person with—with would be a resource about, for [Mr. F] could also be but that resource know making good sure help shopping him with make he’s shop- kids he’s for the —for the when nutritional decisions fi- personal with his helping [Mr. F] could be ping. It any with entitlements helping [Mr. F] nances. It could be Drop-in supports can address for himself or children. would—would need any F] of issues that —that [Mr. number with. some—some assistance something Department

Q. you Do think that this to someone with normally provide would Social Services developmental delays? Generally,

A. I’m not familiar with what DSS does. DSS, DHR, separation pretty significant there’s between a Developmental and Disabilities Administration. We—I mean, for people work with for entitlements we—we DSS but, large, don’t program by in our and we access are F], if any through available DSS. he was [Mr. other services a funding system, in the DDA would have services [he] is, manager case to him who assigned coordinator or basical- ly, developmental an would expert [He] disabilities. an and would re- support through agency receive he also periodic regional from at the office of follow-up people ceive DDA. By Mr. work and Peggy

Ms. Roland next for F. testified family special education experience, Ms. Roland had become persons. developmentally and disabled teacher advocate years Although initially met Mr. F several earlier while she Special Olympics, her current performing volunteer work him, children, came as a exposure and relevant and his asked to consult on Mr. being result DSS caseworker what she F’s his children’s situation.30 Asked services months,31 F provided replied: to Mr. the last 2-3 she over employee Ms. was a herself at the time. 30. Roland DSS testimony given July Her 1999. have, I I hope, helped Mr. F by becoming an advocate for my time, him on own I’m doing this strictly personal aon. basis, helping him to find services within the communi- ty, help also to him with reading, some his to understand documents, interpret information that he would need— also, excuse to develop skills, some skills—some life me— may he be able to use to maintain personal life better, calendar, using a getting supports, other financial service, advising, that kind of thing. thought

She her efforts resulted in Mr. F not being so hesitant in asking help and information when he it. needed She in a positive light described her observations of two of Mr. F’s (a most recent visitations with his sons at DSS combined hours).32 time of than less 3

Asked Mr. F’s trial counsel to describe what kind of programs were available in “community the at large” help Mr. F if gain custody children, he were to of his Ms. Roland responded:

I’m not that I can give very, sure very answer, informed fortunately, that’s not something gotten I’ve my into in personal yet, my life daughter But, is parent yet.33 not a I do know that financial advising-type available, services are any family support programs, independent living programs through available agencies, different Change, Fly- ing Success, ARC, Colors to Target, they constantly are developing new different support services for custodial parents sure, that would require, I’m a lot of intense But, services. I believe that questions the easily could be asked, but I know that support is available for Mr. F as an individual in the community. cross-examination,

When asked on however, whether “in- tense services” she referred to “twenty-four were hour super- 32. She conceded on cross-examination that there had been "a hundred visitations, to two hundred” such but only she had observed two of them. daughter, years Ms. Roland’s old at hearings the time of the below, developmentally is disabled. services,” she stated could answer kind of she vision parent. a custodial She object support if were to question parent- what actual was unable to address acknowledged she regarding further Probing be available. ing might services Westminster other services in the availability support area, cross-examina- during occurred following exchange tion: aware, ARC—the Asso-

Q. Okay. you Are does—does the Citizens, they parenting do offer ciation For Retarded developmental^ de- addressed to—to specifically classes layed parents? But, I do question. I can’t know sorry,

A. I’m answer that, are community, there several within the Westminster parent developmentally families one other where ... disabled and,

Q. they ... need And— .... are ...

A ... would offer assistance other Q .(cid:127) —those families families? Oh, strong yes. very possibility,

A. that’s a I think a—a within may program I several There’s a—if —there’s two, Communi- I know at least it’s called agencies, Assistance, Living program and a de- ty Supported that’s person a with maintain their signed help to disabilities independent living, pro- and level of appropriate level— individual, I to needs of and gram designed meet the Target, Flying that strongly Change, think that —I believe Colors, very do would all be interested would and ARC could, staff-wise, financially, as to they whatever as—as well parent a to develop attempt to in their program support parent. abe opinion, op. apparently at acknowl- Majority

Even the Hardesty’s that said for Mr. edges that best can be testimony is unclear as to “[t]he Ms. Roland’s is that evidence needs, services, specific petitioner’s whether additional to facilitating bring lasting parental adjustments about would reunification.”

Although unqualifiedly optimistic, level, personal on a re- garding ability Mr. F’s future acquire to additional or more and, living refined support, cope skills successfully with emerging children, growing needs of his Ms. Roland was optimistic less that ready he was custody presently: assume Roland, Q. that, you Ms. do believe were Mr. F to be permitted unsupervised children, to have visitation with his would he be able understand and address the children’s medical needs if there —if there were medical problems? time, A. At point this something it’s F I’ve talked to Mr. about, I do not think that would be for unsuper- advisable vised visits because of the possibility hurt children and knowing what to do.

Q. so, time, All right. you this don’t believe that So— judgment Mr. F has the to address medical needs children? No,

A. I don’t. witness, F., Mr. F’s final Margaret his aunt and Eddie’s mother, foster Eddie, testified that she would adopt like to Tristynn given if expressed chance. She her intention F, to allow Mr. as well as Mr. family, play F’s a role in the children’s lives so would heritage.34 know their Asked court thought whether she Mr. F could boys by handle the himself, F., Margaret who has years, known Mr. F for 28-29 think, time, “I replied, at this he’s kind of unstable ... You know, if he starts to do ... things functions where he can abilities, think, learn a little bit know, more with his I you he would person.” be better

This is the record that was before the trial judge. On appeal, Mr. F’s appellate counsel and Amicus informally seek supplement briefs, record through their and under- standably so. The limited attack mounted on Dr. Blumberg’s opinion in the circuit court has ballooned into a legal question below, point 34. At some in the proceedings Mr. F’s trial counsel had Margaret advanced an alternative that F. and adopt her husband could boys, possibility might accept. both a Mr. F This notion did not bear ultimately. fruit

7 35 made objection actually all to below. beyond proportion the support appeal on has availability of services asserted The what crystalline clarity certainty and that belies taken a Essentially unargued told statutes trial was below. judge the legal arguments, laws become the foundation for and have articles,35 law review end we should augmented by the fairly placed not judgment points below on law reverse the by judge. or the trial before decided for appellate

I do Mr. F’s counsel or Amicus not blame and advocacy of their is admirable under- trying. The zeal and, obviously, argu- is appealing The client the standable. Ami- Perhaps, appellate are if Mr. F’s and beguiling. ments court, the in the trial we would have cus counsel had tried case briefs, in their from which the argue the record before us Unfortunately, case Majority opinion heavily. borrows us, nor was it they argue is not the record before before judge. trial Court, however, Majority listening

I fault of this for music, Majority opinion but not the words. The succumbs brief, particular, and to the call of the Amicus siren societal, bully pulpit promotion a for of select becomes (most moral, and legal truths and values of which reasonable self-evident), not, people, judges recognize as but whether by objective reading is not an of the record nor justified which sought, circuit court implicated by the reasons DSS and the granted, parental rights. Tristynn termination of Mr. F’s originally Eddie children in were declared need assistance (an Mr. adjudication appealed) because F was was unable to for DSS properly presented care them. wealth change in why unlikely evidence that situation was unpersuaded by The trial Mr. judge foreseeable future.36 in, be, may experiential parlance, 35. Some more of which academic piece example, learned than others. For a 1995 California Law from Review, (from brief) by quoted Majority op. cited and the Amicus 17, appears 674-675 n. to have been authored a law student. Majority appears temporal time extend the relevant frame (the 313(d)(i) § impact parent's FL dis- consideration under 5— 736

F’s contrary. however, evidence the Majority opinion, The at points, implies, homilies, various in digressive that DSS’s 683) “drive toward (Maj. op. termination” at may have been by influenced Mr. F being 669, “poor” (Maj. considered at op. 673-674, 700), 686, (at 686); “illiterate” or that DSS and/or was paying blind obéisance to federal regulatory funding (at 669, requirements 700);37 or the trial court and DSS avoided a proper weighing of Mr. rights F’s and the best interests standard because feared the in- uncertainties herent (the ever returning to him the. children “safer doctrine) (at 669). course” Nor does the termination of Mr. parental rights, record, F’s on this constitute an intentional or inadvertent diminution of rights the developmentally disabled as a class of our citizenry 669, 674-675, (Maj. op. at 683-684). This appraisal case involves an particular of a developmentally parent, children, disabled particular particular on a record. Majority opinion

The ignores much job of what our is about. cherry-picks facts, It others, certain ignores and finds a few new objective. It, ones as suits its instance, in at least one strategically authority38 edits an to avoid a principle, previous7 ability time”) on child care long periods must endure "for when it concludes, 697-698, op. at ample that "there was not evidence to properly exists, disability, conclude that Mr. F’s even if it renders him

permanently incapable caring unsupervised his children in an added). setting.” (Emphasis clear, fairly 37. It seems at least from the perspective, trial court’s funding federal oversight requirements driving were not its consid- eration of this January hearing, case. At a 29 when DSS’s proffered counsel for the why record petition reasons various "long being upon,” overdue in ruled so that the "federal auditors” delays case,” would know appropriate “that are in this the trial commented, ”[w]ell, judge I could care less about the federal auditors.” Majority opinion's In the quote 675-678) (Maj. extensive block op. at from opinion 10941, the Court’s in In re: Adoption/Guardianship No. 99, 103-06, (1994), 335 Md. 642 A.2d 203-05 following highlighted 677-678): (op. sentence is omitted overriding The theme of legislation both the federal and state is that a child should have permanency in premise his or her life. The valid Court, ly by against Majori- that cuts acknowledged this ty’s reasoning. It to state issues framed disdains even F, granted, of its own which certiorari was in favor upon Mr. “questions” conceptualization it would like unstated it out of some- Finally, strives to make this record answer.39 case, present trampling of a thing that is not in this parent’s right to raise his child. supported by judge’s trial conclusions were clear evidence, and convinc-

convincing supra. as recounted Clear Delia, 302, evidence, v. explained Berkey as in 287 Md. ing 170, (1980), A.2d, degree involves “a of belief 177-78 evidence, greater preponderance than ... a of the but less beyond ... It has been proof than a reasonable doubt.... ‘strong, from proof positive that must be and free [such] said ” (citations omitted). ‘full, and clear and decisive.’ DSS doubt’ met that burden. placed permanent to be home is that it is in the child's best interest in a Thus, spend possible little in 5 of the and as time as care. Title foster Family prevent Article the need a child Law seeks 1o for removal of home, possible, home where from its to return a child 1o its when and returning possible, place perma- home is not the in child another placement legal that [Some omitted.] nent has status. citations course, language exactly by principle Of the omitted is served in case.

trial court's decision the instant petition argued question: 39. Mr. F's certiorari framed and one clearly finding lower Whether court was in its that erroneous required petitioner’s paren- intellectual limitations termination of his abandonment, abuse, rights, neglect. tal absent a determination or Court, presented argued questions: In his brief to the F two Mr. and erroneously [petitioner] I. Whether the trial court found that the had disability consistently that him to care for the rendered unable ongoing physical psychological and of the immediate needs children[?] finding appellee provided II. Whether the trial erred in court timely adequate [petitioner] with and services to facilitate reunifi- [petitioner] childrenf?] cation and his attacking Obviously, appellate challenges F Mr. conceived his as sufficiency Majority's questions of the evidence. The of these omission light opinion significant in Ami- from its becomes of Petitioner's Majority's supplementation cus's of the record and the tendencies substituting testimony appellate fact-finding weighing toward its judge. and documents for that of the trial directs, essence, Majority opinion The a “do-over” and justifies engaging result its own fact-finding.40 The transparency Majority opinion’s supplantation of the judge’s fact-finding trial role is not adequately by concealed its digressive legal discourses on unchallenged legal principles applied parental rights course, in a termination of case. Of inherently what makes this case challenging is that it involves developmentally parent. It imagine disabled is difficult to how legal the tensions between the principles of the best interests of the right children the constitutional to raise could heightened one’s children be further. This precisely is why disciplined appellate analysis is critically necessary so lest swept inup we become the rhetoric. Examples Majority opinion's factual embellishments and sub- judgment stituted include: conclusions (a) Majority opinion, op. again again at 19-20 and at 686 and 694-695, application states that the and use of the Minnesota Multi- test, Personality Inventory Blumberg Facet Dr. which did not admin- ister Mr. F adequately, because he could not read "are not limited people that can read.” There is no evidence in the record to support this conclusion. (b) Extrapolating apparently $6.50 from the facts that Mr. F earns (but per present job, hour from his rents a 2 bedroom townhouse it), telephone possesses bicycle, unable to afford a in Majority financially concludes he is “able ... provide to now 701). Tristynn (op. and Edward's care and maintenance.” at DSS, (c) 701-702, Majority op. seems to attribute to testimony at reasonably "that in the possible, reunification future was if not note, however, probable.” It fails to position that this was not DSS's matter, witnesses, in this but Peggy rather that of one of Mr. F’s Dissent, 698-701, (see supra, Roland at for discussion of Mr. Roland’s views). (d) greatest significance, Majority opinion Of major states certain ("[Mr. able, may factual conclusions at 700 properly F] well be with services, children.”), ("CCDSS tailored to care for his 700 had at its disposition ("[Mr. petitioner”), better suited services for and 701 F’s] ability to care for those with severe employed disabilities [while Palsy early might United Cerebral in the 90’s] be an indicator that exist, petitioner’s parenting problems, immediate if would dissi- time, pate aging within the near petition- of the children and skills.”). growth parenting er’s continued in Majority For the necessarily reach requires place these conclusions it to itself in the evidence, shoes of the fact-finder and elect to credit Mr. F's rather prime than that adduced examples impermissi- DSS. These are appellate fact-finding.

ble

7 39 applicable as law and he correct to the judge The trial them to law facts as found be. Neither applied that to the he except as parental rights, F’s insofar nor Mr. he DSS violated “best may permits be said law when the interest it liberty interest may parent’s take over the precedence child visitation, In custody, adoption dispute.” of a course Mark, 706, 332, (2001); 687, 365 782 343 Boswell Md. A.2d Re (1998). Boswell, 204, 219, This v. 352 Md. A.2d case. such a Special judgments

I would affirm the Court County. Judges Appeals the Circuit Court for Carroll they join to state that RAKER WILNER authorize me this dissent. notes 2293-2331 provisions: of the Act’s agencies tion local 1997(ASF) ], Act of Families [Adoption and Safe “[T]he toward that families have work the time which shortens parental up termination of speeds reunification

Case Details

Case Name: In Re Adoption/Guardianship Nos. J9610436 & J9711031

Court Name: Court of Appeals of Maryland

Date Published: Apr 16, 2002

Citation: 796 A.2d 778

Docket Number: 58, Sept. Term, 2001

Court Abbreviation: Md.