In re ADOPTION/GUARDIANSHIP OF RASHAWN H. and Tyrese H.
No. 7, Sept. Term, 2007.
Court of Appeals of Maryland.
Dec. 11, 2007.
937 A.2d 177 | 402 Md. 477
Cathell, J., concurred and filed a separate opinion in which Bell, C.J., joined.
Kimberly Shearin-Cotton, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore), on brief, for respondents.
Katherine J. Jones, Legal Aid Bureau, Inc., Frederick, for respondents.
Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER (Retired, Specially Assigned), and DALE R. CATHELL (Retired, Specially Assigned), JJ.
ALAN M. WILNER, Judge, Retired, Specially Assigned.
Before us is a judgment of the Circuit Court for Frederick County that terminated the legal relationship between petitioner, Melissa F., and two of her four children, Rashawn and Tyrese, who were then six and five years of age, respectively. Upon evidence that the children had previously been found by the juvenile court to be children in need of assistance (CINA) and after considering the various factors then set forth in
BACKGROUND
Ms. F. suffers from the effects of several partially interrelated problems—an overall IQ of 66, an oppressive childhood, eviction from and apparent disqualification for Government assisted housing because of her drug-dealing mother, life-long poverty, inability to maintain steady employment, and lack of a reliable support system. The combination of those impediments have made her life and the early lives of Rashawn and
After her mother‘s second arrest, Ms. F. dropped out of school, in the eleventh grade, and moved first to Harrisburg to live with a step-brother and then, after a year, back to Frederick to live with a cousin. She had her first child, Mark, in February, 1997, when she was seventeen. The child‘s father was an alcoholic and abusive, so she ended that relationship and began one with another man, Richard, with whom she had three more children in fairly quick succession—Richard, Jr., born in June, 1998, Rashawn, born in November, 1999, and Tyrese, born in November, 2000. Richard, Jr. has lived with his paternal grandparents in Delaware since infancy. In 1999, the remainder of the family moved to an apartment apparently shared with Ms. F.‘s mother. In December, 2001, they were evicted because the mother was selling drugs from the apartment.
In the three years following that eviction, which occurred when Rashawn and Tyrese were two and one, respectively, Ms. F., Mark, Rashawn, and Tyrese moved approximately eleven times. She and Richard were sometimes together and sometimes apart. The family spent a week in a hotel paid for by the Frederick County Department of Social Services (DSS), then in a shelter until May, 2002, and then briefly at a Community Action Center. They then moved to an apartment in Harrisburg, which they shared with ten other people and where they survived on peanut butter sandwiches and water, then to different shelters in Harrisburg. They finally returned to Frederick to live with Ms. F.‘s mother, but the day after they arrived, the mother was incarcerated, so they moved to New York, where they stayed in various shelters and finally ended up in a roach and rat-infested apartment,
In August, 2003, Ms. F. returned to Frederick to try to find work, leaving the children with her sister in New York. At some point in 2004, her sister brought the children back to Frederick, where the family found a temporary place to stay with a friend of Richard. In May, however, Richard was incarcerated, and Ms. F. and the children were forced to move. They had no place to go. On either May 19 or 20, 2004, Ms. F. took the children to the local DSS office.1 Dorne Hill, a social worker, was called to the lobby of the building upon a report that a woman was there with three children, cursing at them and grabbing their arms. When she went to investigate, Ms. Hill found Ms. F., along with Mark, Rashawn, and Tyrese, sitting on a bench. The children were unruly but unharmed, and Ms. F. was upset. She explained that she was waiting for a family member, Mark‘s aunt, to come get her and her children. The aunt was contacted, but she was willing to take only Mark. Mark‘s father was located, and he eventually came and picked up his son but not Ms. F. or the other children.
When it appeared that there was no place for Rashawn and Tyrese to go, Ms. F. and Ms. Hill agreed that the only alternative was for DSS to place the two children in emergency shelter care. Richard, who by then had married another woman, later agreed to that disposition as well. After a hearing two days later, the shelter care was continued. The court found that it was not possible to return the children to their home because of the father‘s incarceration and Ms. F.‘s lack of a residence. There was no home to which they could return. On June 16, 2004, based, in part, on “the lack of a permanent residence for the children, and on the agreement of the parties,” the children were found by the juvenile court to be CINA. Among other things, the court ordered psychiatric, psychological, substance abuse, and parenting potential evalu-
DSS, for its purposes, found insufficient evidence to show an “indicated” child neglect on Ms. F.‘s part, in that, although she had been unable to secure resources for her children, she had attempted to do so and was willing to “g[i]ve up her children because she could not provide instead of allowing her children to be homeless and hungry.” On the other hand, DSS declared that it could not “rule out” neglect, in that Ms. F. “had been homeless and transient for several years.” It therefore declared child neglect to be “unsubstantiated,” the only other category possible under the circumstances.
Upon assuming custody of the children and in preparation for the CINA hearing, DSS sought an evaluation from Dr. Dennis Hilker, a psychologist, who reported, in relevant part, that, although Ms. F. had an emotional attachment to her children and wanted to be a productive mother, she showed “little parenting ability,” had “no job skills,” and would “require a great deal of assistance and supervision to meet the needs of her children.” He found that both parents were “cognitively challenged,” that they had not developed any “consistent, reliable employment base,” and would need “a long time to build their educational and vocational capacity for self-support, before proposing any possible home for the children to return to their custody.”
At the time of the evaluation—some three weeks after she took the children to DSS—Ms. F. was still homeless, was on a waiting list for an apartment, had no income, and “wanders
In his report on Richard, Dr. Hilker concluded that Richard “shows questionable parenting ability” and “limited intelligence, perhaps because of intensive drug abuse earlier in his life.” He added that Richard was “unlikely to succeed in parenting without special services to meet his difficulties.”
The social worker initially assigned to the case, Brenda Boone, stated that Tyrese remained in the foster home during the four months that she supervised the case but that Rashawn had to be moved five times during that period because of his behavior, which she described as “out of control.” Ultimately, he was placed in a “therapeutic” foster home, where the caretakers were specially trained to care for children with behavioral or emotional problems. Ms. F. told Ms. Boone that she was living with her mother and her mother‘s boyfriend, although she gave the social worker an aunt‘s telephone number.
Ms. F. eventually found employment at Wal-Mart and she did participate in most of the programs as directed in the CINA disposition order and in one or more service agreements with DSS. Reports prepared for the first court review hearing in December, 2004, by Heather Chorney, the new social worker assigned to the case, were positive. Ms. Chorney confirmed that Ms. F. had, on the whole, complied with the court‘s directives and that supervised visitation had occurred. Her overall impression was that “[p]rogress has been made; however, the risk and safety factors that lead to the children being brought into care have yet to be eliminated.”
The next review hearing was in April, 2005. Again, Ms. Chorney‘s report was positive. Ms. F. continued to comply with most of the court‘s directives and maintained her employment with Wal-Mart. Rashawn‘s behavior and emotional well-being had improved. Ms. Chorney still believed, however, that the factors that led to the children being placed in foster care had yet to be eliminated. She continued her recommendation that the children remain in foster care and that the permanency plan be for reunification with Ms. F.
The reports prepared for the hearing in August, 2005, were less favorable. Ms. Chorney noted that “[t]here has been little progress toward reunification since the last Court hearing.” Rashawn‘s situation had “been regressing,” in that he “has attached to his foster parents and has a great deal of anxiety about the status of reunification.” Tyrese, on the other hand, was “doing very well and there are no concerns at this time.” Unfortunately, Ms. F. lost her job at Wal-Mart in April. She found part-time employment at Goodwill Industries but worked there only for a month or so. The principal problem seemed to be that, despite the assistance of a parent aide from DSS, Ms. F. remained unsuccessful in finding adequate housing for herself and the children. She had been denied public housing because of the past eviction, and the prospect of living with her sister was rejected because the sister (1) had a substance abuse history, and (2) did not have housing for the children. Although Ms. Chorney recommended that the permanency plan still be for reunification, she expressed concern about the length of time the children had been in foster care and the “permanency issues,” and she noted that DSS “may recommend a change of permanency plan at the next hearing if progress is not adequate.”
That is what, in fact, occurred at the next review hearing in November, 2005. Both children had adjusted well to their foster care placements. Tyrese was “in a potential pre-
Ms. F. had lost her part-time job with Goodwill Industries in July, but in October found one with a Holiday Inn. Her employment situation remained sporadic, and housing continued to be a major issue. In October, Ms. F. was evicted for non-payment of rent. DSS assigned a parent aide to assist her in finding a suitable home, but they had no success. The problem was that, because of her eviction due to her mother‘s drug-dealing, she was unable to obtain public housing and had insufficient income to afford adequate non-assisted living. She eventually found a one-room apartment but had to share a communal bathroom with everyone else on the floor, and DSS did not view that arrangement as adequate for a woman with two children.3 Continuing to believe that the risk factors that caused the children to be placed in foster care had not been alleviated, even after eighteen months, DSS recommended that the permanency plan be changed to adoption with a concurrent plan of reunification with Ms. F.4 Ms. Chorney expressed concern that it was a struggle for the parents to maintain their own everyday living without the burden of dealing with Rashawn‘s complex problems. She said, however, that DSS would continue to work with Ms. F. toward reunification.
- The children had been in care for 18 consecutive months;
- Because of the children‘s ages, there was a need “to establish stability and permanency as soon as possible;
- Risk and safety factors had not been alleviated by the parents;
- Reunification services “have been exhausted“;
- The parents’ progress is such that reunification was not likely in the next six months;
- The children were unable to reside with Ms. F. due to “the lack of appropriate housing, financial instability, mental health needs of the child[ren], substance abuse [by the father], and a history of the parent‘s overall instability;” and
- There were no identifiable, appropriate, or willing relatives to provide long term care.
On November 17, 2005, the juvenile court concurred in that recommendation. It ordered that the permanency plan for the children be “adoption with a concurrent plan of reunification with the mother,” and, notwithstanding that purported concurrence, directed DSS to file a petition to terminate parental rights (TPR) within 30 days.5 DSS filed the TPR
The statutory standards governing the termination of Ms. F.‘s parental rights in this case are those that previously were set forth in
The child was abandoned; i.e., the identity of the child‘s natural parents was unknown and no one had claimed to be the child‘s natural parent within two months after the alleged abandonment; - In a prior juvenile court proceeding, the child was adjudicated to be CINA; or
- The following four circumstances exist:
- The child has been continuously out of the custody of the natural parent and in the custody of a child placement agency for at least a year;
- The conditions that led to the separation from the natural parent or similar conditions of a potentially harmful nature still exist;
- There is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the immediate future; and
- A continuation of the parental relationship would greatly diminish the child‘s prospects for early integration into a stable and permanent family.
Unless the court finds an abandonment, i.e., if it is proceeding under (2) or (3) above, it must, in determining whether termination is in the best interest of the child, give primary consideration to the safety and health of the child and give consideration as well to the other factors that were enumerated in
The evidence presented at the TPR hearing was largely that noted above, although it was supplemented with some additional details. The social workers who prepared the various reports testified, as did Ms. F. and Dr. Carlton Munson, a social worker who prepared an “attachment assessment report” based on an evaluation of Rashawn and Tyrese conducted shortly before the hearing. Dr. Munson was aware that Rashawn was facing a change of placement because of “aggressive and sexualized behaviors.” With that knowledge and upon his own observation of the children‘s interaction with each other, he concluded that “a joint placement would not be in the best interest, well-being, safety, or health of either child.” He explained in his report that Rashawn‘s history of sexualized behaviors “make it highly likely [that] sexual behaviors would be acted out on Tyrese if these siblings were in the same placement” and that “Tyrese would be at physical and psychological risk.” Ms. Chorney commented that, except for a brief period, visitation with the children was supervised because of the unstable relationship between Ms. F. and
Ms. F. confirmed the several attempts she had made to find assisted housing. She was told that she was ineligible for county-assisted housing but eligible for Federal Section 8 assistance. The problem was that there were no apartments available. She said that if she could live with her mother, they could pool their resources and afford a larger apartment that could accommodate the children and that her mother could watch the children when she was at work. Because of her mother‘s drug history, however, DSS did not regard the mother as an acceptable resource.
The court noted the undisputed fact that Rashawn and Tyrese had been found to be CINA, and it therefore proceeded to consider the factors set forth in
The court found the children‘s adjustment to their foster homes “troubling,” but improving. The court complimented Ms. F. on her effort to adjust her circumstances and maintain contact with the children but made no clear finding as to the adequacy of her adjustment or contact. The implication is that the court found the adjustment inadequate to provide a
Turning then to the
In the Court of Special Appeals, Ms. F. attacked some of the Circuit Court‘s findings with respect to the various factors, contending that they were either unsupported by more specific factual determinations or otherwise clearly erroneous. After reviewing the record, the appellate court held that there was ample support for the trial court‘s findings. The thrust of Ms. F.‘s argument was that DSS had not provided adequate services tailored to Ms. F.‘s needs and that Ms. F. lost custody of the children in the CINA proceeding and lost her parental rights in the TPR case “because she was homeless, ... her disability prevented her from curing that condition, and the Department failed to tailor its services to remove those barriers to reunification.” She made no attack on the statute itself. The Court of Special Appeals disagreed, concluding that “throughout the two years that Rashawn and Tyrese were in foster care before the TPR hearing, Ms. F. was provided with
Although still complaining that DSS failed to provide adequate services to her and that some of the Circuit Court‘s conclusions were wrong, Ms. F. has substantially broadened her argument in this Court. She now attacks the structure and validity of the statute itself, tacitly at least contending that, by focusing on the best interest of the child, the statute is unconstitutional. In that regard, she argues first that a court may not terminate the parental rights of a parent absent a showing that the parent “is presently unfit or proof of other exceptional circumstances.” She adds that parental rights may not be terminated where “the basis for the CINA finding, and the primary obstacle to reunification, is lack of permanent suitable housing,” thereby implying that the lack of suitable housing, even over a four or five year period, cannot be regarded as either evidence of unfitness or an exceptional circumstance.
DISCUSSION
The Appropriate Standards for Terminating Parental Rights
In seeking to dismantle the statutory construct enacted by the General Assembly, Ms. F. borrows in part from cases involving custody disputes between a parent and a third party and in part from out-of-State TPR cases that are mostly inapposite. We shall turn first to the custody cases and consider their relevance to the issue at hand.
The great majority of custody (and visitation) disputes, of course, are between the child‘s parents, neither of whom, at least since the adoption of our State Equal Rights Amendment (
A different element, though not a different standard, comes into play when the dispute is between a parent and a third party, for in that setting, there is a legal preference. In those cases, we have recognized that parents have a fundamental, Constitutionally-based right to raise their children free from undue and unwarranted interference on the part of the State, including its courts. See, most recently, Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007); also McDermott, supra, 385 Md. 320, 869 A.2d 751; Shurupoff v. Vockroth, 372 Md. 639, 814 A.2d 543 (2003); Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977). Even in those cases, however, we have not discarded the best interest of the child standard, but rather have harmonized it with that fundamental right.
We have created that harmony by recognizing a substantive presumption—a presumption of law and fact—that it is in the best interest of children to remain in the care and custody of their parents. The parental right is not absolute, however. The presumption that protects it may be rebutted upon a showing either that the parent is “unfit” or that “exceptional circumstances” exist which would make continued custody with the parent detrimental to the best interest of the child. In McDermott, the Court made clear that, in a parent-third party custody dispute, the initial focus must be on whether the parent is unfit or such exceptional circumstances exist, for, if one or the other is not shown, the presumption applies and there is no need to inquire further as to where the best interest of the child lies. In Koshko, we extended that approach to parent-third party visitation disputes as well.
Custody and visitation disputes, even between a parent and a third party, are on a different plane than TPR proceedings.
Nonetheless, our case law has been clear and consistent, that, even in contested adoption and TPR cases (and in permanency plan proceedings that may inevitably lead to a TPR case), where the fundamental right of parents to raise their children stands in the starkest contrast to the State‘s effort to protect those children from unacceptable neglect or abuse, the best interest of the child remains the ultimate governing standard.9 Most recently, in In re Karl H., 394 Md.
“A State‘s role in a child‘s care and protection should take on utmost importance, while a parent‘s right may not be absolute. A parent‘s rights may be diminished, [‘w]hen there is a conflict between the rights of the parents or legal guardian and those of the child, the child‘s best interest shall take precedence.’ COMAR 07.02.11.07(A).”
All of those cases recognize and give full appropriate weight to the fundamental right of the parents, as indeed they must, but they all recognize as well that the right of the parents is not absolute and that it must be balanced against the fundamental right and responsibility of the State to protect children, who cannot protect themselves, from abuse and neglect. The point was well made in In re Mark M., supra, 365 Md. at 705-06, 782 A.2d at 343, and confirmed in In re Yve S., 373 Md. 551, 570, 819 A.2d 1041 (2003):
“That fundamental interest, however, is not absolute and does not exclude other important considerations. Pursuant to the doctrine of parens patriae, the State of Maryland has an interest in caring for those, such as minors, who cannot care for themselves. We have held that ‘the best interests of the child may take precedence over the parent‘s liberty interest in the course of a custody, visitation, or adoption dispute.‘.... As we stated in In re Adoption/Guardianship No. A91-71A, 334 Md. 538, 640 A.2d 1085 (1994), the child‘s welfare is ‘a consideration that is of “transcendent importance“’ when the child might otherwise be in jeopardy.”
In light of that well-established case law, it is not surprising that the General Assembly, in enacting former
The deficiencies that may properly lead to a finding of unfitness or exceptional circumstances in a custody case will not necessarily suffice to justify a TPR judgment. For one thing, those deficiencies may be temporary and correctable—sufficiently severe to warrant denying custody or visitation at a particular point in time, but with the understanding that the custody or visitation decision is subject to reconsideration upon a showing of changed circumstances. As noted, however, a judgment terminating parental rights, once enrolled, is not subject to discretionary reconsideration based merely on the parent‘s changed circumstances. See, however,
The second element that serves to protect the parental relationship is that, in a TPR case, the kind of unfitness or exceptional circumstances necessary to rebut the substantive presumption must be established by clear and convincing evidence, not by the mere preponderance standard that applies in custody cases. The State must overcome a much higher substantive burden by a higher standard of proof.
Third, and of critical significance, the Legislature has carefully circumscribed the near-boundless discretion that courts have in ordinary custody cases to determine what is in the child‘s best interest. It has set forth criteria to guide and limit the court in determining the child‘s best interest—the factors formerly enumerated in
We agree with Ms. F. that poverty, of itself, can never justify the termination of parental rights. The fundamental right of parents to raise their children is in no way dependent on their affluence and therefore is not diminished by their lack thereof. Nor will homelessness, alone, or physical, mental, or emotional disability, alone, justify such termination. That is not what the statute permits, however.10 What the statute
The statute does not permit the State to leave parents in need adrift and then take away their children. The court is required to consider the timeliness, nature, and extent of the services offered by DSS or other support agencies, the social service agreements between DSS and the parents, the extent to which both parties have fulfilled their obligations under those agreements, and whether additional services would be likely to bring about a sufficient and lasting parental adjustment that would allow the child to be returned to the parent. Implicit in that requirement is that a reasonable level of those services, designed to address both the root causes and the effect of the problem, must be offered—educational services, vocational training, assistance in finding suitable housing and employment, teaching basic parental and daily living skills, therapy to deal with illnesses, disorders, addictions, and other disabilities suffered by the parent or the child, counseling designed to restore or strengthen bonding between parent and child, as relevant. Indeed, the requirement is more than implicit.
There are some limits, however, to what the State is required to do. The State is not obliged to find employment for the parent, to find and pay for permanent and suitable housing for the family, to bring the parent out of poverty, or to cure or ameliorate any disability that prevents the parent from being able to care for the child. It must provide
The State is not required to allow children to live permanently on the streets or in temporary shelters, to fend for themselves, to go regularly without proper nourishment, or to grow up in permanent chaos and instability, bouncing from one foster home to another until they reach eighteen and are pushed onto the streets as adults, because their parents, even with reasonable assistance from DSS, continue to exhibit an inability or unwillingness to provide minimally acceptable shelter, sustenance, and support for them. Based upon evidence of the effect that such circumstances have on the child, a court could reasonably find that the child‘s safety and health of the child is jeopardized. Recognizing that children have a right to reasonable stability in their lives and that permanent foster care is generally not a preferred option, the law requires, with exceptions not applicable here, that DSS file a TPR petition if “the child has been in an out-of-home placement for 15 of the most recent 22 months.” See
The court‘s role in TPR cases is to give the most careful consideration to the relevant statutory factors, to make specific findings based on the evidence with respect to each of them, and, mindful of the presumption favoring a continuation of the parental relationship, determine expressly whether those findings suffice either to show an unfitness on the part of the parent to remain in a parental relationship with the child or to constitute an exceptional circumstance that would make a continuation of the parental relationship detrimental to the best interest of the child, and, if so, how. If the court does that—articulates its conclusion as to the best interest of the child in that manner—the parental rights we have recognized and the statutory basis for terminating those rights are in proper and harmonious balance.11
Apart from her attack on the structure of the statute, Ms. F.‘s principal complaint is that DSS did not provide adequate services to her. She complains that she was “unable to secure housing without assistance” and that DSS “did not provide her with housing assistance.” It is true that she was unable to secure housing—at least housing adequate for her and the children. It is not true that DSS failed to provide her with assistance. The record shows, and the court properly found, that she received substantial help from DSS in attempting to locate suitable housing.
The basic problem seemed to be that, because of her sporadic employment, much of it part-time, at entry-level wages, Ms. F. was unable to afford an apartment large enough to accommodate her and the children unless (1) she lived with
Ms. F. also complains that DSS refused to return the children to her, notwithstanding her lack of suitable housing and stable employment, and then made a point of the diminished contact and bonding between her and the children. With the children having been found CINA and placed in the custody of DSS due to neglect arising from lack of housing, DSS was not obliged to return the children to Ms. F. when she still had no adequate housing and, in the view of DSS, the conditions that caused the children to be CINA had not been alleviated. Ms. F. did have and, for the most part, did exercise weekly visitation with the children. Access to them was never denied.
Notwithstanding our rejection of Ms. F.‘s principal complaints, we shall direct that the judgments of the Circuit Court be vacated and that the cases be remanded for further proceedings, for two reasons. The first is a concern over some of the court‘s findings, at least as articulated. As noted,
One of the considerations in former
The court, as noted, complimented Ms. F. on her effort to maintain contact with the children but made no finding as to the adequacy of that effort. Although concluding that Ms. F. had done “a pretty good job” of maintaining communication with DSS, it found that the effort was not sufficient to “guarantee the safety and health of the children.” The court did not explain the connection between any lack of communication, to the extent there was any such lack, and the safety and health of the children.
Principally, the problem is that the court, understandably in light of the statutory language and not having the benefit of the views we express in this Opinion, did not relate the findings it made with respect to the statutory factors to
JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE JUDGMENTS OF CIRCUIT COURT FOR FREDERICK COUNTY AND REMAND TO THAT COURT FOR FURTHER PROCEEDINGS IN CONFORMANCE WITH THIS OPINION; COSTS IN THIS COURT AND IN COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.
BELL, C.J., and CATHELL, J., Concur.
Concurring opinion by CATHELL, J. which BELL, C.J. joins.
I concur in the judgment. I write to make clear my position. As I read the majority‘s opinion, it incorporates that
Notes
In In re Karl H., 394 Md. 402, 422, 906 A.2d 898, 909 (2006), we pointed out permanency plans which call, concurrently, for both reunification and adoption are intrinsically inconsistent, that they give DSS no real guidance, and that they can lead to arbitrary decision-making on the part of DSS. We concluded:
“If the court approves a permanency plan that calls for reunification or family placement, that should be the paramount goal. It should not share the spotlight with a completely inconsistent court-approved goal of terminating parental rights, especially when the inconsistent plan calls for a TPR petition to be filed before the next scheduled court review of the permanency plan. The objective of contingency planning can be achieved without a Janus-type order.”
Karl H. was not filed until September, 2006, so the juvenile court here did not have the advantage of our views on what was then a common practice by DSS. The anomaly of having the order both continue reunification as a goal and direct the filing of a TPR petition within 30 days is evident on its face, however.
Those factors, as we paraphrase them, were:
- the timeliness, nature, and extent of the services offered by DSS to facilitate reunion of the child with the parent;
- any social service agreement between the parent and DSS and the extent to which the parties fulfilled their obligations under the agreement;
- the child‘s feelings toward and emotional ties with the parents, siblings, and others who may significantly affect the child‘s best interest;
- the child‘s adjustment to home, school, and community;
- the result of the effort the parent has made to adjust his or her circumstances, conduct, or conditions to make it in the child‘s best interest to be returned to the parent; and
- all services offered to the parent before placement of the child.
The considerations set forth in
- whether the parent has a disability that renders him or her consistently unable to care for the immediate and ongoing physical or psychological needs of the child for long periods of time;
- whether the parent has committed acts of abuse or neglect toward any child in the family;
- the parent has repeatedly failed to give the child adequate food, clothing, shelter, education, or other care or control necessary for the child‘s physical, mental, or emotional health, even though the parent is physically and financially able;
- the child was born exposed to certain drugs or the mother tested positive for those drugs upon admission to a hospital for delivery of the child;
- the parent subjected the child to torture, chronic abuse, sexual abuse, or chronic and life-threatening neglect, or was convicted of certain crimes of violence committed against a child or household member.
have taken. Three of the cases are from New Jersey. In In re Guardianship of K.L.F., 129 N.J. 32, 608 A.2d 1327 (1992) and In re Guardianship of J.C., 129 N.J. 1, 608 A.2d 1312 (1992), the court construed the New Jersey statute as requiring the State “to make an affirmative demonstration that the child‘s best interests will be ‘substantially prejudiced’ if parental rights are not terminated.” K.L.F., 608 A.2d at 1329. The State‘s argument in both cases was that the children would suffer psychological harm if separated from their foster parents. Although the court recognized that serious and lasting emotional or psychological harm to children as the result of action or inaction by the parents can constitute injury sufficient to justify termination of parental rights, it found insufficient evidence in the respective records to support such a finding. In Guardianship of J.C., the court remanded the case for further proceedings on that issue. Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (1988) involved an action by the natural parents of Baby M. to terminate any parental rights possessed by a woman who acted as a surrogate mother. Massachusetts has adopted the view, as a matter of its own State law, that the State may not attempt to force the breakup of a natural family “without an affirmative showing of parental unfitness,” but it has defined unfitness in terms of whether “returning the child to the natural parents would be seriously detrimental to the welfare of the child.” Petition of Department of Public Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 421 N.E.2d 28, 37 (1981), quoting in part from Custody of a Minor (1), 377 Mass. 876, 389 N.E.2d 68 (1979) and Bezio v. Patenaude, 381 Mass. 563, 410 N.E.2d 1207 (1980). That is not substantially different from the conclusions we reach here. An Alabama case cited by Ms. F., Ex parte T.V., has yet to be released for publication.