In re ADOPTION NO. 12612 IN the CIRCUIT COURT FOR MONTGOMERY COUNTY, Maryland.
No. 83, Sept. Term, 1998.
Court of Appeals of Maryland.
Feb. 17, 1999.
Reconsideration Denied April 9, 1999.
725 A.2d 1037
Because the court acted solely on the basis of Young and did not consider the other issues raised by Dr. Levitsky, some of which concerned the fairness of the hearing before the ALJ, we shall vacate the court‘s judgment and remand for further proceedings on Dr. Levitsky‘s petition for judicial review.
JUDGMENT VACATED; CASE REMANDED TO CIRCUIT COURT FOR PRINCE GEORGE‘S COUNTY FOR FURTHER PROCEEDINGS; COSTS IN THIS COURT TO BE PAID BY APPELLEE.
Jennifer Evans (Ralph E. Hall, Jr., on brief), Rockville, for Respondent.
Roger L. Conner, Washington, DC, for Amicus Curiae Center for the Community Interest.
Michael P. Bentzen, Davis & Bentzen, P.L.L.C., Washington, DC, for Amicus Curiae National Council on Adoption.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.
WILNER, Judge.
This contested custody dispute, between the birth mother of a young child and the woman who has been the child‘s principal caregiver for most of his life, involves the construction of
BACKGROUND
The child whose custody is at issue is Cornilous Pixley, who is now three years old. The contestants here are Latrena Pixley, his birth mother, and Laura Blankman, his principal caregiver since Cornilous was three-and-a-half months old.
Ms. Pixley was born in June, 1973. Her upbringing was neither stable nor happy. She informed the court‘s adoption investigator in this case that her mother is an active alcoholic and drug abuser and has been incarcerated at least four times. Her father, also a drug abuser who apparently has never been gainfully employed, has been incarcerated on a number of
Ms. Pixley‘s first child, Carlos, was born in June, 1989, when Ms. Pixley was 16. Carlos remained with her for about a year, until she relinquished physical custody of the child to his paternal grandparents. She did that, she said, because she was pregnant with her second child and her mother, who had applied for social service benefits for Carlos, was using all of the money to buy drugs. The second child, Edward, was born in July, 1990; Ms. Pixley had just turned 17. In May, 1992, Ms. Pixley was living in the District of Columbia with a drug user named Terrell Cooper, although she was carrying the child of one Keith Scott. She had terminated her relationship with Mr. Scott because Scott did not want Edward in his apartment. On May 6, 1992, her daughter, Nakya, was born. Ms. Pixley did not want the child and allowed Mr. Scott to take her from the hospital.
When Nakya was five weeks old, Ms. Pixley agreed to watch her for a few days, while Mr. Scott was in New York. Along with the child, Scott brought a few cans of milk and some diapers. When he did not return in a week, Ms. Pixley called, and Scott said that he would come for the child, but he never did. Ms. Pixley ran out of formula and diapers, although she had other food in the apartment. On June 19, 1992—the day after Ms. Pixley called Scott—Nakya woke up crying. Ms. Pixley tried giving the child some water, to no avail. Her telephone had been disconnected. She went to a neighbor‘s apartment to use the telephone, but the neighbor was not then at home. Although Ms. Pixley had previously received assistance from Maryland social service agencies with
It is at this point that the lives of Ms. Pixley and Ms. Blankman first converge. Ms. Blankman, at the time, was a 22-year-old college student who, while on a summer break, was doing an internship at the Washington, D.C. public defender‘s office. She worked with Lisa Greenman, Ms. Pixley‘s attorney in the murder case. In the course of assisting Ms. Greenman, Ms. Blankman got to know Ms. Pixley, and a friendship developed between them. Ms. Blankman completed her internship in July or August and returned to school, but she and Ms. Pixley continued to correspond by mail. Although she may have attended a hearing of some kind involving Ms. Pixley during another break, her next recollection of meeting Ms. Pixley was in the fall of 1995, when, by
Ms. Pixley was on the street due to the outcome of the criminal case. In June, 1993—a year after the murder—Ms. Pixley pled guilty to second degree murder. The full record of that proceeding in the Superior Court of the District of Columbia is not in the record before us, but it appears that, at sentencing, Judge Mitchell was persuaded by a psychiatric assessment that Ms. Pixley was suffering from postpartum depression when she murdered Nakya. That assessment was accepted by the circuit court in this case.2 Judge Mitchell sentenced Ms. Pixley to prison for a period of from five to fifteen years but then suspended execution of that sentence in favor of her serving weekends at a halfway house for three years and five years of probation. Because of her obligation to spend weekends at the halfway house, Ms. Pixley signed a stipulation that she was unable to care for Edward, who was placed in foster care. Ms. Pixley visited with Edward frequently in the beginning. The visits were suspended for a time due to Edward having nightmares, but were reinstated until eventually terminated by the District of Columbia court. Ms. Pixley had not seen Edward since June, 1996. At some point, the social service plan was changed from reunification to termination of her parental rights.
In October, 1993, Ms. Pixley started a job training program at Arch Training Center. When the training program ended in the summer of 1994, she was offered a position at Arch and began employment there. At some point in late February,
In April, 1995, Arch discovered what she had done and accepted her resignation in lieu of discharge. She lied to her probation officer about the reason for her termination, informing him that she left in order to return to school full time and thereby concealing her criminal behavior. She was then pregnant with her fourth child, Cornilous, fathered by a man she had known for only a short period. Although she informed one of her expert witnesses, Dr. Feister, that this pregnancy also was unintentional—“that she did not want to be pregnant [because] she felt she couldn‘t care for Edward and another baby too“—she testified, and informed other people, that the pregnancy was planned, although she gave different reasons at different times for why she wanted to get pregnant. At one point, she said that it was because she was lonely and wanted company. At another time, she said that life was good and, after having the child, she wanted to marry the father. The father denied that the pregnancy was planned and that he and Ms. Pixley were ever engaged. Whatever were her intentions when she became pregnant, she terminated the relationship with the father prior to Cornilous‘s birth, and, indeed, there is some discrepancy in her story as to how and when that occurred. In August, 1995, she decided, unilaterally, to resume custody of Carlos, without informing his grandparents; while exercising visitation, she refused to return him to the grandparents’ home. That triggered the
The women‘s paths crossed again in the fall of 1995. Ms. Pixley was then pregnant with Cornilous. Ms. Blankman said that she received an unexpected invitation to a baby shower for Ms. Pixley, which she attended. Ms. Pixley invited Ms. Blankman to attend her in the delivery room, and Ms. Blankman made an effort to be present but arrived about a half hour after the baby was born. Cornilous was born in January, 1996. Judge Mitchell allowed Ms. Pixley to remain at home only for the first two weekends and then insisted that she resume her weekends at the halfway house. At Ms. Pixley‘s request, Ms. Blankman began caring for Cornilous on most of the weekends, picking him up from Ms. Pixley on Friday afternoon and returning him on Monday morning. When, on two occasions, Ms. Blankman was unavailable, the child was placed in an institution for the weekend. No family member came forth to care for the child. In light of what had happened to Nakya and in order to assist Ms. Pixley with Cornilous during the week, the District of Columbia Department of Health and Human Resources arranged for social workers from the Department‘s Families Together program to have almost daily contact with Ms. Pixley and with Cornilous—to visit her home and to transport her to therapy sessions and other places.
In March, 1996, Ms. Pixley‘s credit card fraud came to the attention of Federal agents, on the complaint of one of the persons defrauded, and, on March 12, Ms. Pixley was arrested and charged with mail fraud. As a result, in May, Judge Mitchell revoked her probation and directed execution of the five-to-fifteen year prison sentence. When other persons desired by Ms. Pixley proved unwilling to care for Cornilous and no family member volunteered to assist, Ms. Pixley, through a friend, asked Ms. Blankman to care for him on a full-time basis, which she agreed to do. That arrangement was to last only while Ms. Pixley was in jail. In July, 1996, she was
Ms. Blankman continued to care for Cornilous during this period. Initially, despite considerable inconvenience, she brought the child to visit Ms. Pixley at the District of Columbia jail on a regular basis, twice a week. In October, 1996, however, she decided to keep Cornilous, and the visits became less frequent, finally ending in December.3 Ms. Blankman concealed her intent from Ms. Pixley, fearing that, if she disclosed her intent, Ms. Pixley would revoke her consent to Cornilous remaining in her custody.4 In October, she told Judge Mitchell that she was caring for the child only while Ms. Pixley was in jail and that Ms. Pixley and Cornilous should be reunited. By December, Ms. Blankman had effectively cut off all contact with Ms. Pixley; she changed her telephone number from one unlisted number to another and declined to
Although permanent custody was an alternative request, the case was tried principally as a contested adoption case. Ms. Blankman was seeking to terminate Ms. Pixley‘s parental rights and adopt Cornilous. The child‘s father consented to and recommended the adoption, but Ms. Pixley vigorously contested it. In addition to reports and recommendations from the guardian ad litem appointed for Cornilous and the court‘s adoption investigator, who reached opposite conclusions, a great deal of evidence was presented by psychologists, a psychiatrist, and social service workers regarding the parties, Cornilous, and what was in Cornilous‘s best interest. Apart from the facts recited above, it was essentially conceded that Carlos, Edward, and Cornilous had never been physically abused or neglected by Ms. Pixley, except to the extent that her absence due to incarceration rendered her unable to care for Edward or Cornilous. It was also conceded that the visits Ms. Pixley had with Cornilous while he was in Ms. Blankman‘s care were positive ones. Ms. Blankman stated that Ms. Pixley appeared to be a good, loving, and nurturing mother to him during those visits, that she was always happy to see him, that she held him appropriately, and that she never abused him. Ms. Blankman said that she knew from the beginning that she would have to return the child and that she had been warned by friends about the danger of becoming too involved with him.
By the time of trial, Ms. Blankman, then 27, had accepted employment as a police officer candidate for Montgomery County and was in training at the police academy; she expected to graduate in March, 1998. She remained unmarried and lived in a three-bedroom house with her mother. She was a college graduate with a good job and an unblemished back-
Cornilous‘s guardian ad litem recommended that the adoption petition be granted. In a written report summarizing the historical facts and her conversations with various witnesses and therapists, the guardian concluded, among other things, that Ms. Pixley had not been cooperative in releasing information, that she “is more concerned about her liberty than she is about reunification with Cornilous,” that “Cornilous ha[s] been used by her as a legal tool to help her be released from prison for almost two years,” that she had not remained involved with the child to the extent possible, and that, in general, Ms. Pixley “is not looking out for Cornilous’ best interests, rather she is looking out for herself.”5 She stated that, if the court were to deny the petition for adoption, it should find that Ms. Pixley was “fit and capable of being Cornilous’ primary caretaker,” but concluded, overall, that the facts “support a finding by the Court of exceptional circumstances warranting the termination of parental rights.” In that regard, she observed:
“The minor child has been away from Respondent for approximately nineteen months due to her own criminal conduct, resulting in incarceration. The minor child was less than four-months old when Petitioner assumed his care, thus, Petitioner is the only mother he has known. Although Respondent has been attempting to reclaim the minor child, she has not been in a position to reclaim the child until her recent release from incarceration. A change of custody
would be detrimental to Cornilous because of both the strong emotional ties he has developed toward Petitioner and because of the unstable situation he would be placed in if placed in the custody of Respondent. Finally, the genuineness of Respondent‘s desire to have the minor child is lacking.”
As noted, the court‘s adoption investigator reached a very different conclusion. She expressed “grave concerns in regard to [Ms. Blankman‘s] insensitivity to adoption issues and her inability to stay within normal societal boundaries.” She was concerned that Ms. Blankman “would befriend a murderer via her place of work/education” and then betray that friendship. She felt that Ms. Blankman had betrayed a trust by presenting herself as a friend to Ms. Pixley, someone she could turn to for help, “and now is trying to take her child from her.” The investigator regarded Ms. Blankman as deceitful and as “basically an informal foster parent who became too attached and is not willing to let go” and admonished that “[t]his should not be allowed.” She noted that Ms. Blankman “believes that Cornilious is her son,” that “she gets very upset when the term foster mother or foster care is used in describing the placement situation,” and that “Ms. Blankman does not appear open to compromising in any way with Ms. Pixley.” As to Ms. Pixley, the investigator determined that she had done “all that the court, DHS, her therapist, and society had asked of her,” yet it appeared that “a vast number of people, including [Ms. Blankman], feel that she has not been punished enough.”6 The investigator noted that Ms. Pixley had never abused or neglected Cornilous, that she had excellent reports from her case manager at Milestone Place, and, what can only be regarded as an understatement of classic proportions, that “this would be a non-case if the murder had not occurred.”
A great deal of evidence was taken with respect to all of the parties. Dr. Ronald Wynne, a clinical psychologist who, in 1995, had evaluated Ms. Pixley‘s parenting competence for the D.C. Superior Court in connection with what should be done with Edward, concluded that she was angry, mistrustful, and hyper-vigilant, and that she found it hard to establish intimacy with other people. Although he concluded that she did not have an elevated potential to be physically abusive, he opined that she was not realistic about what to expect from a child and he was not very hopeful that reunification with Edward would be successful. He concluded that she needed a lot of “bolstering” but did not believe that the District of Columbia social service agencies would be able to provide the needed support.
Upon his review of the various reports, Dr. Gelles concluded that Ms. Pixley was not a consistent, caring, concerned caretaker with acceptable parenting skills, that she could not meet Cornilous‘s best interest in the context of a halfway house setting, and that, although it was unlikely that she would fatally attack Cornilous, he would be in danger of maltreatment in other ways. Dr. Gelles‘s principal concern was that Cornilous would be neglected. In particular, he opined that the probability of neglect by Ms. Pixley was “quite a bit above 51%,” that the probability of fatal attack was “quite a bit below 50%,” but the probability of other physical abuse was “above 51%.” In large measure, this view was prompted by his conclusion that, if severe maltreatment has already occurred, the likelihood of recurring maltreatment begins at 50%. Dr. Gelles expressed the belief that depression, which was offered as the explanation for the murder of Nakya, explains only about 10% of child abuse, implying that successful treatment of that problem would not substantially reduce the risk of further maltreatment.
Ms. Pixley‘s case was supported principally by Dr. Susan Feister, a psychiatrist who had evaluated Ms. Pixley in the fall of 1996 and had done an update evaluation in December, 1997, and by Joanne Bragg, a counselor who provided ongoing therapy to Ms. Pixley since 1994. Dr. Feister had testified for Ms. Pixley in January, 1997, before Judge Mitchell, and concluded then that she would not be a danger to herself or anyone else, including her children. She opined in this case that Ms. Pixley had no personality disorders and that, “with appropriate therapeutic intervention,” Ms. Pixley “would be able to appropriately parent her child.” Dr. Feister expressed the belief that Cornilous began bonding with Ms. Pixley while still in utero, that that bonding continued in the first months of his life, and that it remained strong. On cross-examination, she disputed that Ms. Pixley had “murdered” Nakya, insisting that she had only “killed” her.8 Dr. Feister acknowledged that Cornilous‘s growing up with the woman who had killed
Ms. Bragg, a licensed professional counselor with a degree in agency counseling who referred to herself as a “psychotherapist,” stated that she had provided individual psychotherapy to Ms. Pixley since 1994. She believed that Ms. Pixley could live in the community with Cornilous, basing that opinion on the fact that she had lived with the child in the community prior to her incarceration. Ms. Bragg described Ms. Pixley, as of 1994, as young, immature, impulsive, exercising poor judgment, and in need of both psychotherapy and pervasive socialization, but said that she had matured “to become a very responsible young woman.” Although she expressed the belief that Ms. Pixley had “been as honest with me as she possibly could,” she acknowledged that Ms. Pixley had not told her about the credit card fraud until after she lost her job, that she had not discussed her plan to become pregnant with Cornilous or her relationship with Cornilous‘s father, and that Ms. Pixley had not been entirely truthful with respect to her attempt to regain custody of Carlos.
Principally upon this evidence, the court rendered its decision on December 22, 1998. In conformance with how the case had been tried, the court‘s focus was on the petition for adoption, and its analysis was keyed to the factors set forth in
The court began by announcing its general finding that Ms. Blankman had failed to meet her burden of proof. It noted the presumption that it is in the best interest of a child to be raised by the natural parent—a presumption “rooted in a belief that there is a greater desire on the part of the natural parent to properly care for the child“—and acknowledged that the presumption may be overcome by evidence that the natural parent is unfit or of exceptional circumstances. It identified ten factors to consider in determining whether exceptional circumstances exist and made findings with respect to them, as follows:
(1) Length of time the child has been away from the natural parent: The court found that Cornilous had been away from Ms. Pixley for 20 months, but concluded that, given his young age, that factor did not weigh in favor of severing the parental ties.
(2) Age of child when care assumed by third party: Cornilous was between three and four months old when placed in Ms. Blankman‘s care and thus, according to the court, had no concept of time or abandonment.
(3) Emotional effect on child of change of custody: The court found that Cornilous had established a strong bond with Ms. Blankman and would suffer a negative emotional effect from a change. The court noted that the experts disagreed on
(4) Delay in natural parent‘s attempt to regain custody: Ms. Pixley acted promptly when informed of Ms. Blankman‘s attempt to adopt Cornilous.
(5) Nature and strength of ties between child and third party: The court found that the ties with Ms. Blankman were strong but were never exclusive; i.e., Ms. Pixley had always remained involved in Cornilous‘s life.
(6) Intensity and genuineness of parent‘s desire to have the child: Based on its assessment of Ms. Pixley‘s conduct and demeanor, the court rejected the guardian ad litem‘s view and found Ms. Pixley‘s desire genuine and not just for purposes of escaping incarceration.
(7) Stability and certainty as to child‘s future: That factor, the court held, weighed in Ms. Blankman‘s favor. Ms. Blankman had a good home and stable employment, whereas Ms. Pixley‘s arrangements had “an element of uncertainty.” Ms. Blankman had been law-abiding and Ms. Pixley clearly had not. Nonetheless, the court did not give singular significance to that factor. It seemed to assume that the wealth of therapy and other services that Ms. Pixley would need would, in fact, be provided. It declared that her living environment was “very much a factor of socioeconomic factors” beyond her control and therefore deserving of little weight; that the murder of Nakya was the product of postpartum depression and did not “pose a threat of death or fatal abuse” to Cornilous; that it was not likely, in light of her progress in therapy, that Ms. Pixley would neglect Cornilous; and that the credit card offense showed poor judgment but did not suffice to forfeit her rights to the child. Although noting that Ms. Pixley‘s current job was temporary, the court observed that she had “taken advantage of opportunities presented to her to make herself more employable, having obtained her GED since she came under the court‘s jurisdiction and having enrolled in college classes in computer at [University of Dis-
(8) Effect of having one or both relationships continue: The court found that the long-term benefit of Cornilous being raised by Ms. Pixley outweighed the short-term detriment that would be caused by severing his ties with Ms. Blankman.
(9) Abandonment: The court found no abandonment by Ms. Pixley.
(10) Failure to support or visit the child: The court found that Ms. Pixley supported and visited the child as best she could. It attributed the 11 times she was late for visitation to factors beyond her control.
Upon this analysis, and returning to the statutory factors, the court declared that Ms. Blankman had failed to show, by clear and convincing evidence, that it was in Cornilous‘s best interest to terminate Ms. Pixley‘s parental rights, that Ms. Pixley failed to maintain meaningful contacts with the child, or that she failed to contribute to his physical care and support, though financially able to do so. Acknowledging Ms. Blankman‘s subjective belief that she had been acting in Cornilous‘s best interest, the court found that her assessment was “colored by her emotional attachment to Cornilous and, therefore, in that sense, her self-interest.” It retained Ms. Blankman as a temporary guardian and directed counsel, with the assistance of Dr. Jacobs, to formulate a transition plan for returning custody of Cornilous to Ms. Pixley within 60 days. The court did not mention in its remarks
In response to a motion to stay, the court addressed a number of issues raised by Ms. Blankman, among them being that the court had applied a clear and convincing evidence standard, which was appropriate with respect to the adoption petition but not with respect to custody. The court denied that it had applied that standard with respect to the issue of custody and stated in a supplemental opinion and order its finding that Ms. Blankman “failed to establish by a preponder-
As we observed, the Court of Special Appeals affirmed the circuit court judgment, concluding that, to the extent
DISCUSSION
As the Court of Special Appeals noted,
Section 9-101 provides:
“(a) In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.
(b) Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation
arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.”
(Emphasis added.)
Section 9-101.1, after defining the term “abuse,” provides, in subsections (b) and (c):
“(b) In a custody or visitation proceeding, the court shall consider, when deciding custody or visitation issues, evidence of abuse by a party against:
(1) the other parent of the party‘s child;
(2) the party‘s spouse; or
(3) any child residing within the party‘s household, including a child other than the child who is the subject of the custody or visitation proceeding.
(c) If the court finds that a party has committed abuse against the other parent of the party‘s child, the party‘s spouse, or any child residing within the party‘s household, the court shall make arrangements for custody or visitation that best protect:
(1) the child who is the subject of the proceeding; and
(2) the victim of the abuse.”
Ms. Blankman looks to the requirement of
Ms. Pixley responds that (1) Ms. Blankman did not properly raise this issue in the circuit court and has therefore waived
Preservation
When, in February, 1997, Ms. Blankman filed her petition for adoption, she was concerned that Ms. Pixley would immediately reassert her parental right to custody of Cornilous, so she filed with that petition, prior to its service on Ms. Pixley, an ex parte petition for temporary custody pending the litigation. In that ex parte petition, she urged that it was in Cornilous‘s best interest to remain in her temporary custody and, in support of that averment, she cited
That was the last time she mentioned
Applicability of § 9-101
On the merits of the issue, Ms. Blankman points out that
Ms. Pixley offers a triple response. First, relying to some extent on the legislative history of
In dealing with the issue of statutory construction, our goal is to discern and effectuate the intent of the legislature at the time it enacted the statute. Brown v. Housing Opportunities Comm., 350 Md. 570, 714 A.2d 197 (1998). If the statutory language is clear and unambiguous and is consistent with the purposes of the legislation in general and the particular provision being interpreted, our inquiry usually ends at that point. Philip Electronics v. Wright, 348 Md. 209, 703 A.2d 150 (1997); Sears v. Gussin, 350 Md. 552, 714 A.2d 188 (1998). If the language is unclear or ambiguous, “we seek
We find no patent ambiguity in the wording of
The legislative history of
“Following a preliminary review, the Task Force found that when allegations of abuse arise in disputed custody or visitation proceedings, the courts often fail to order the safeguards needed to protect children. For this reason, the Task Force recommends legislation requiring that abuse or neglect be considered if raised in the course of a custody or visitation proceeding and that visitation or custody be denied or modified if necessary to protect a child.”
In the Report itself, the Task Force summarized its proposed bill as follows:
“This bill expressly requires a court to restrict or deny custody or visitation rights to a party if abuse or neglect has previously occurred and there is any likelihood that abuse or neglect may continue to occur. The court may deny custody or visitation or order supervised visitation in such cases.”
Report, supra, at 5.
This language makes clear that the focus of the Task Force was on the person guilty of the abuse or neglect and was not limited to the particular child who had previously been abused or neglected. Its desire was to make certain that no child whose custody or visitation was subject to the court‘s control would be placed with such a person unless the court was convinced that there was no likelihood of further abuse or neglect on the part of that person. That is the way in which the State Department of Health and Mental Hygiene viewed the proposal as well. In its position paper filed with the Senate Judicial Proceedings Committee, the Department stated that the bill required that attention be given by the court to those custody and visitation cases “where the possibility of child abuse or neglect has occurred” and that, if it has
Immediately on the heels of the enactment of
This construction of
We find no greater merit in Ms. Pixley‘s constitutional argument. She seems to acknowledge that, if restricted to the situation where the child whose custody or visitation is at issue was abused, the statute would pass constitutional muster and finds a problem only when custody is denied because the parent has abused another child. We fail to see the distinction. As a preface, it is important to note that
Significant abuse or neglect of a child may lead to the termination of parental rights (
Section 9-101 focuses the court‘s attention and gives clear direction in the exercise of its discretion. It does not set an insurmountable burden; even upon substantial evidence of past abuse or neglect, it does not require a finding that further abuse or neglect is impossible or will, in fact, never occur, but only that there is no likelihood—no probability—of its recurrence. Webster defines likelihood as probability, something that is likely to happen. Nor would
We conclude, therefore, that
Compliance With § 9-101
Ms. Pixley urges that, even if
The fact is that no witness, even those testifying for Ms. Pixley, opined that there was no likelihood of further abuse or neglect by Ms. Pixley. At best, they concluded that Ms. Pixley had made significant progress in socialization and parenting skills and believed that, if she continued in therapy and received the other extensive services she required, she would be able to raise Cornilous appropriately. Significantly, although the court found the views of Ms. Pixley‘s witnesses to be more accurate than those of Ms. Blankman‘s witnesses, it made clear that it was “not persuaded to accept either set of experts in toto.” We do not find in this record anything approaching an acceptable equivalent to the required statutory finding, and, for that reason, must direct that the judgment be vacated and the case remanded for further proceedings.
On remand, the court may take evidence with respect to the current situation. It will have to determine from all of the evidence whether, in light of Ms. Pixley‘s murder—not killing, but murder—of Nakya, there is any likelihood of her abusing or neglecting Cornilous. Obviously, in light of the findings it makes and articulates, the court will have to take account of the requirements of
JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE JUDGMENT OF CIRCUIT COURT FOR MONTGOMERY COUNTY AND REMAND TO THAT COURT FOR FURTHER PROCEEDINGS IN CONFORMANCE WITH THIS OPINION; COSTS IN THIS COURT AND COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.
CATHELL, J., files concurring opinion.
CATHELL, Judge, concurring.
I concur with the result reached by the majority. I write separately, however, to respectfully express my belief that the majority does not go far enough in addressing the central issue in this case.
It is my view that a parent convicted of murdering one of his or her children should be presumed an unfit parent, without the necessity of any evidence other than the murder conviction. In such circumstances, there should be a rebuttable presumption that the child‘s best interests lie elsewhere.
This Court has the power to modify the common law, so long as such modification does not conflict with constitutional or valid legislative provisions. Although the General Assembly has extensively promulgated legislation in the field of child custody, I know of no legislation that defines “best interest” in a manner that would conflict with what I believe the Court should do in the case at bar. In the case before us today, the Court should exercise its collective common sense and modify the common law to afford additional protection to the surviv-
The majority opinion holds that on remand, the trial court “will have to determine from all of the evidence whether, in light of Ms. Pixley‘s murder . . . of Nakya, there is any likelihood of her abusing or neglecting Cornilous.” I would hold that there should be a rebuttable presumption that there is a likelihood of neglect, abuse, or worse of surviving children when a parent has a history of murdering his or her children. In my view, to hold otherwise, as the majority opinion invites the trial court to consider doing, is to replace hard facts and common sense with the inherently uncertain opinions of those in the mental health industry. Any such opinion that there is no likelihood of future neglect or abuse when a parent has a history of murdering his or her own child should be, I respectfully suggest, rejected unless very strong evidence exists to the contrary. If there is to be error in determining custody in a situation such as this, it should be on the side of protecting the children, not protecting the interests of the parent.