Adoption/Guardianship No. 94339058/CAD in Circuit Court for Baltimore City, In re

• Citation: 706 A.2d 144,120 Md.App. 88
• Decision Date: 01 September 1997
• Docket Number: No. 492,492
• Parties: In re ADOPTION/GUARDIANSHIP NO. 94339058/CAD IN the CIRCUIT COURT FOR BALTIMORE CITY. ,
• Court: Court of Special Appeals of Maryland

Page 88

120 Md.App. 88

706 A.2d 144

In re ADOPTION/GUARDIANSHIP NO. 94339058/CAD IN the CIRCUIT

COURT FOR BALTIMORE CITY.

No. 492, Sept. Term, 1997.

Court of Special Appeals of Maryland.

Feb. 27, 1998.

Joy L. Phillips, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Shelly E. Mintz, Asst. Atty. Gen. (J. Joseph Curran, Atty. Gen., on the brief), Baltimore, for appellee Dept. of Social Services. Lynn Johnson, Baltimore, on the brief, for minor children.

Argued before HOLLANDER and SALMON, JJ., and PAUL E. ALPERT, Judge (retired), Specially Assigned.

HOLLANDER, Judge.

In December 1994, the Baltimore City Department of Social Services ("the Department"), appellee, filed a petition in the Circuit Court for Baltimore City seeking to terminate the parental rights of Mark M., appellant, and Sonya B. as to their sons, Marques M. and Marcus M., and for guardianship with the right to consent to adoption or long-term care short of adoption. Sonya B., is not a party to the appeal. After a two-day hearing held in May 1996, the court (Strausberg, J.) granted the petition. Appellant has timely noted his appeal and presents the following questions for our review, which we have rephrased slightly and reordered:

I. Did the trial court err in failing to make specific findings of fact?

II. Did the record as a whole justify the extreme sanction of termination of parental rights?

For the reasons that follow, we shall affirm. In doing so, however, we recognize that this is a close case. Therefore, we shall set forth a rather detailed summary of the facts.

Factual Background

Sonya B. and appellant are the parents of Marques, born on March 8, 1989, and Marcus, born on April 4, 1990. In addition to Marques and Marcus, appellant and Sonya B. had two other children: Mark M., born January 8, 1988, and Tykia B., born October 7, 1986. On February 21, 1996, appellee amended its petition to include the termination of parental rights of appellant and Sonya B. with regard to Mark M. and Tykia B. Appellant has consented to the petition as to Mark M. and Tykia B.

Appellant was born in 1972, and Sonya B. was born in 1969. Although the record is unclear, it appears that appellant and Sonya B. were never married. In any event, in late 1989, after Marques was born and while Sonya B. was pregnant with Marcus, appellant and Sonya separated. Sonya B. became the primary custodian of the couple's four children.

Appellant has been incarcerated for a substantial portion of Marques's and Marcus's lifetimes. He has an extensive criminal record, much of which is associated with narcotics. Appellant admitted to the following: (1) he was arrested in January 1989--two months before Marques was born--on drug possession charges, which were stetted; (2) he was arrested in August 1989 on charges of drug possession and gambling, which were stetted; (3) in January 1990--three months before Marcus was born--appellant was arrested on charges of robbery with a deadly weapon and using a handgun during the commission of a crime, both of which were stetted; (4) in August and September 1990, he was charged with possession of narcotics with intent to distribute, and the charges were also stetted; (5) in October 1992, appellant was charged with possession with intent to distribute and assault, for which he was convicted and sentenced to a term of incarceration of four years. Appellant testified that he also "received an additional year and seven months," but the offense that resulted in this additional term is unclear from the record. Appellant's incarceration began in October 1992; he was released on parole in December 1995.

The Department's records were introduced into evidence. The records indicate that, shortly after the couple separated in 1989, Protective Services reported that the children had poor nutrition, did not receive immunizations, and lived in inadequate housing. Protective Services also raised concerns about Sonya B.'s mental health. The Department paid for several items, such as furniture and groceries, and provided housing for the mother and assisted in paying her electric bill. The Department's records also reveal that, in April 1990, the Department contacted appellant, who reported that he purchased food for the children. According to the Department's witness, case worker Adrian Dean, appellant told the Department that he would encourage Sonya B. "to get immunizations for the children, look for a larger apartment, supply milk and Pampers, assist with child care and supervision, and encourage [Sonya B.] to attend counseling sessions from Mental Health."

Further, the Department's records reflect that an Intensive Family Services ("IFS") worker contacted appellant in May 1990 and informed him of the continued need for the children to obtain their immunizations. The IFS worker also discussed relocating Sonya B. to Section 8 housing. Dean testified that the records indicated that appellant said he was working with Sonya B. to set priorities with regard to spending her AFDC check, and he agreed to assist the IFS worker in getting Sonya B.'s rent and electric bills paid. He also said he would provide financial and emotional support to the family. At the same time, however, appellant said he could not find employment because he was unable to obtain his birth certificate and Social Security card. If and when he found a job, however, appellant expressed the desire to have child support taken out of his salary. Appellant also said he believed that Sonya B. was providing good care to the children. ¹

The Department's records between July 1990 and August 1990 indicate that Sonya B. did not make her rent payment and could not show where she spent her AFDC check. Moreover, the Department determined that the children continued to lack proper medical care and that Sonya B. had neglected her children. Sonya B. also alleged that there had been a lack of support by appellant. Sonya B.'s sister, Darlene B., who at the time of the hearing had custody of appellant's older children, Mark M. and Tykia B., testified that, during 1990 and 1991, appellant "would make sure the kids had Pampers, milk, and whatever."

In October 1992, appellant was incarcerated after his conviction for possession of a controlled dangerous substance with intent to distribute and assault. In April 1993, while appellant remained incarcerated, Sonya B. abandoned her children, who were then placed in shelter care. On May 3, 1993, while appellant was incarcerated, the children were adjudicated Children In Need of Assistance ("CINA") and committed to the care of the Department. It is unclear whether appellant attended the CINA hearing. In August 1993, a review hearing was held, at which Marques and Marcus were formally committed to the Department for placement in their current foster home. Appellant attended the hearing and stipulated to the placement of Marques and Marcus in foster care. According to the Department's records, appellant expressed concern about visits and correspondence with his children. He also said that he would like to write to his children, and he provided his address at the House of Correction to the case worker.

On December 17, 1993, the Department sent a letter to appellant notifying him that his children had been in foster care "for some time now." According to Dean, the letter informed appellant that "he needs to contact the foster care worker to plan for ... his children and that there's a time period. It says [the Department] needed the names and numbers of the family members that might be interested in the children for placement." The letter also stated that, if no plan is made, the agency would proceed with other plans, including adoption. Dean testified that, after this letter was sent, there was no contact with appellant until the Department sent him a letter in September 1994 explaining that a "show cause hearing" had been held in which the Department had decided to pursue termination of parental rights and to plan for the adoption of the children. Other Department records indicate that the Department accepted the permanency plan of adoption for Marques and Marcus in May 1994, but that there was not enough information about appellant at the show cause hearing in September 1994, and that it was rescheduled for November 2, 1994.

On September 13, 1994, the Department's records indicate that appellant called in response to the Department's letter and said he would not consent to the termination of his parental rights. Three days later, a case worker visited appellant in prison, and appellant said he "very much desires reunification with his children." The Department's records reflect that appellant indicated he believed he had made significant changes in his life: he obtained his GED while incarcerated; took a college course; attends counseling twice a week; and works as a clerk. The case worker explained the show cause process to appellant, along with the need for appellant to "show some efforts if he wanted to get his children back." On September 20, 1994, the Department received "a very articulate" letter from appellant. The case worker's entry in the Department's records indicated that appellant again said that he wanted to reunify with his children and planned to do so. At the termination hearing, Dean testified about a letter from appellant to the Department dated September 16, 1994. ² In it, appellant stated: "My children have always been the most important thing in my life." The letter also indicated appellant's regret for "[t]he road I took to have myself removed from their lives."

In December 1994, the Department arranged for the children to visit appellant in prison. It was the first time appellant had seen his children in more than two years. According to the Department's records, the children "seemed glad to see their father and he was especially pleased to see them." The case worker's...