Cager, In re

• Decision Date: 03 December 1968
• Docket Number: No. 353,353
• Citation: 251 Md. 473,248 A.2d 384
• Parties: In re Barbara Jean CAGER et al.
• Court: Maryland Court of Appeals

Page 473

251 Md. 473

248 A.2d 384

In re Barbara Jean CAGER et al.

No. 353.

Court of Appeals of Maryland.

Dec. 3, 1968.

Frank M. Kratovil, Upper Marlboro, and Norman Dorsen, (Lois Pl. Sheinfeld, New York City, on the brief), for appellants Cheryl Cager and others.

John J. Sexton, Washington, D. C. (David Tillotson and Frank Reeves, Washington, D. C., Charles Dukes, Jr., Hyattsville, Gerald Smith, Baltimore, James O. Freedman Philadelphia, Pa., and Jack Greenberg, Leroy D. Clark, Philip G. Schrag and

W. Haywood Burns, New York City, on the brief), for appellants, Barbara Jean Cager and others.

Amicus curiae brief filed by Washington Chapter of Medical Committee for Human Rights, Harold P. Green, Patricia H. Latham and James B. Blinkoff, Washington, D. C., on the brief.

Joseph R. Raymond, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Baltimore, and Arthur A. Marshall, Jr., State's Atty. for Prince George's County, and Vincent J. Femia, Asst. State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Amicus curiae brief filed by Planned Parenthood Federation of America, Inc., and others. Bernard W. Rubenstein and Edelman, Levin, Levy & Rubenstein, Baltimore, and Greenbaum, Wolff & Ernest, Harriet F. Pilpel and Nancy F. Wechsler, New York City, on the brief.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

HAMMOND, Chief Judge.

The Circuit Court for Prince George's County, proceeding under Code (1966 Repl. Vol.), Art. 26, §§ 51 through 71, 'Juvenile Causes,' and particularly § 52(f) 'Neglected child,' ¹ found various young illegitimate infants to be living in an unstable moral environment and therefore neglected, solely because each infant lived in a home with the mother and at least one illegitimate sibling, and ordered the infants to be taken from their mothers and placed in foster homes. The appeals are by the guardian ad litem of the infants and the three mothers. Planned Parenthood Federation of America, Inc., Planned Parenthood Association of Maryland, Inc., Planned Parenthood of Metropolitan Washington, D. C., Inc. and the Washington Chapter of the Medical Committee for Human Rights filed briefs as amici curiae.

In his opinion Judge Bowen said the three cases:

'are test cases designed to determine whether * * * the State law furnishes a vehicle to assist in the control of the problem of illegitimacy, its mounting costs to the taxpayers, and its mounting costs in human misery and suffering. * * * If the statute * * * is valid * * * we think the State's Attorney's office will proceed with its use in those cases where it applies. * * * As The Court sees it, these cases come before it on * * * the minimum of evidence * * *. (O)ther evidence could be brought before the Court of the surroundings in these homes, of the disposition of the parents, of the condition of the children, and a great many other things * * *. (T)he charge * * * is supported substantially only by the stipulation of facts. ² Other evidence can be gleaned perhaps from the birth certificates and from the report which was submitted, but we do not consider that, we consider the case on these facts: * * * these women have conducted themselves in such a way that they have brought into the world more than one illegitimate child, that these children are now living together with their mother under the same roof, or in the same group unit * * *. (T)he question to be decided is whether or not on that set of minimum facts, The Court can find that they are neglected within the meaning of the Maryland law * * *. (A)re these children living in an unstable moral environment.

'Most first illegitimate children * * * are the result of a mistake * * *. The second time around we think represents a lack of judgment and demonstrates an unstable moral attitude on the part of the mother * * * that is inconsistent with the minimum moral standard the community requires.

'We have no difficulty concluding that the words unstable moral environment relate or were intended to apply to a situation where a mother has had a series of illegitimate children such as the mothers had in these cases. And that such a series * * * constitutes on the part of the mother neglect of each of the children involved (within the meaning of the statute).'

We think that Judge Bowen's conclusion that an illegitimate child can judicially be found to be neglected because of the sole fact that he lives with a mother who has had another illegitimate child who also lives with her is erroneous.

The purposes of § 52(f) of Art. 26 of the Code, as revealed by its legislatively prescribed standards, must be considered in determining as a fact whether a child is neglected. The statute asks whether the person with whom the child lives 'by reason of cruelty, mental incapacity, immorality or depravity, is unfit to care properly for such a child.' It is concerned with whether the child is under unlawful or improper care, supervision or restraint by any person or entity. Does the child's parent or custodian fail to provide necessary medical care; are the health and morals of the child endangered by his custody, environment or occupation, and finally, does the child live in a home 'which fails to provide a stable moral environment.' In determining whether a child is neglected because he lives in an unstable moral environment, the court shall consider, among other things, whether the person with whom the child lives:

'(i) Is unable to provide such environment by reasons of immaturity, or emotional, mental or physical disability;

(ii) Is engaging in promiscuous conduct inside or outside the home;

(iii) Is cohabiting with a person to whom he or she is not married;

(iv) Is pregnant with an illegitimate child; or

(v) Has, within a period of twelve months preceding the filing of the petition alleging the child to be neglected, either been pregnant with or given birth to another child to whose putative father she was not legally married at the time of conception, or has not thereafter married.'

The basis for determining neglect must be broader than that on which Judge Bowen rested his determination. Being pregnant with an illegitimate child or having given birth to an illegitimate child within twelve months of the filing of the petition alleging the child to be neglected are two factors to be considered under the statute, 'among other things,' as indicating neglect but they cannot alone and automatically be found to be indicators of that fact. The 'other things' the court is directed to consider in determining whether there is or is not a stable moral environment must include the factors previously enumerated in § 52(f), pertinent to the particular case. Furthermore, that section does not make explicit as a test of neglect the fact that two illegitimate children of a mother live with her and we do not find such a test reasonably or fairly implicit in the statute as a sole determinant.

It is clear that the ultimate consideration in finding neglect which will serve as a basis for removing a child from its mother's custody is the best interest of the child. As we said in discussing the provisions of Art. 26, Subtitle 'Juvenile Causes,' regarding juvenile delinquents in Ex Parte Cromwell, 232 Md. 305, 308, 192 A.2d 775, 777:

'It is clear that the statute is aimed at the protection and rehabilitation of the child, not its punishment * * *. The power exercised by the State is that of parens patriae * * *. The fact that parents may be deprived of the custody of their own children presents no constitutional problem.'

The best interest of a child may or may not be served by removing it from the custody of a mother who has had another illegitimate child but the sole test, automatically applied, cannot in fact or law be pregnancy with an illegitimate child or the recent birth of an illegitimate child added to the presence of an existing illegitimate offspring. Cf. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436. It is equally clear that although a State is permitted to remove a child from a home that has been judicially determined to be so unsuitable as to be contrary to the welfare of the child and to terminate AFDC assistance to a child living in an unsuitable home if it provides other adequate care and assistance for the child, a State may not deny AFDC assistance to dependent children 'on the basis of their mother's alleged immorality or to discourage illegitimate births.' King v. Smith, 392 U.S. 309, 324, 88 S.Ct. 2128, 2137, 20 L.Ed.2d 1118, 1129-1130. The cases presently before us would seem to have been instituted not to serve and perpetuate the best interests of the children but rather impermissibly to use the children as pawns in a plan to punish their mothers for their past promiscuity and to discourage them and other females of like weaknesses and inclinations from future productivity.

The brief of the guardian ad litem argues that § 52(f) as interpreted by the court below and as applied is invalid under the equal protection clause of the Fourteenth Amendment because it invidiously and purposefully discriminates against the poor who apply for public assistance. The interpretation we give the statute and the limitations of confidentiality we hereinafter find the applicable statutes to impose on State officials will answer these arguments.

The brief of the mothers contends that § 52(f) of Art. 26 is unconstitutionally vague. As we read that section, the standards prescribed by the legislature to determine the presence of neglect are sufficiently precise and definite. Although the judicial determination of neglect is civil in nature, the application of the test of sufficient explictness needed for a criminal statute shows, we think, that a person of ordinary intelligence could determine from § 52(f) with a fair degree of precision whether a child was or was not neglected, McGowan v. State, 220 Md. 117, 125, 151 A.2d...