In re Adoption No. 12612

• Decision Date: 17 February 1999
• Docket Number: No. 83,83
• Citation: 725 A.2d 1037,353 Md. 209
• Parties: In re ADOPTION NO. 12612 IN the CIRCUIT COURT FOR MONTGOMERY COUNTY, Maryland.
• Court: Maryland Court of Appeals

725 A.2d 1037

353 Md. 209

In re ADOPTION NO. 12612 IN the CIRCUIT COURT FOR MONTGOMERY COUNTY, Maryland.

No. 83, Sept. Term, 1998.

Court of Appeals of Maryland.

February 17, 1999.

Reconsideration Denied April 9, 1999.

Jeffrey F. Liss (Shale D. Stiller, Donna Lee Yesner, Piper & Marbury, L.L.P), Julie S. Dietrich (O'Toole, Rothwell, Nassau & Steinbach; Evan S. Stolove, D. Jacques Smith, Arent, Fox, Kintner, Plotkin & Kahn, P.L.L.C., all on brief), Washington, DC, for Petitioner.

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.

Andrew N. Vollmer, Reginald J. Brown, Christine Sarudy Roberts, Lyle Roberts, Wilner, Cutler & Pickering, Washington, DC, for Amici Curiae Supporting Petitioners.

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 Maryland Code, § 9-101 of the Family Law Article. Ultimately at issue is whether the Circuit Court for Montgomery County erred in awarding custody of the child to his birth mother, notwithstanding (1) that she had murdered another of her children six years earlier, (2) while on probation for that crime, she engaged in a scheme of credit card fraud, leading to her conviction of mail fraud, and (3) other circumstances relating to her conspicuous lack of success in raising children. In an unreported opinion, the Court of Special Appeals, stressing the deference to be accorded to a trial judge's conclusion, affirmed that judgment. Because we conclude that the circuit court erred in failing to comply with § 9-101, as we construe it, we shall direct that the judgment of that court be vacated and the case remanded for further proceedings.

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 occasions, and her brother, who had previous incarcerations for drug distribution, was serving time for assault and violation of probation. Her father left when Ms. Pixley was but three or four years old. The family moved often, and Ms. Pixley went to at least six schools before dropping out at the end of the eleventh grade. At 14, she attempted to commit suicide by swallowing Tylenol pills. At 15, she was pregnant. By the time she was 23, she had four children by four different men, none of whom she either married or lived with for very long.

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 respect to Carlos and Edward, she made no attempt to contact any District of Columbia social service agency or to seek assistance from any other neighbor, and she had said nothing to her boyfriend before he left for work earlier that morning.¹ In short, other than seeking out one neighbor, she did nothing to obtain assistance for Nakya. Instead, she placed the child in her crib and smothered her with a blanket, keeping the blanket over Nakya's head for about a half hour. Edward was in the apartment at the time; there is some dispute whether he witnessed the murder of his infant sister. Eventually, Ms. Pixley stuffed the dead child in a trash bag, put her into a dumpster, and returned to the apartment to await the arrival of her boyfriend. When her boyfriend returned, she made dinner for him, for Edward, and for herself, and then the three of them visited the boyfriend's sister until two o'clock in the morning. Not until the next day did she inform her boyfriend of what she had done. After discovering the body in the dumpster, the boyfriend called his uncle, who called the police. Ms. Pixley was arrested. When asked by the police why she had killed Nakya, she said "I don't know."

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 happenstance, she encountered her in Washington while crossing the street.

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, 1995, while still on probation from the murder conviction, she commenced a scheme of credit card fraud. She obtained the names, addresses, birth dates, and social security numbers of four or five other Arch employees from the company's computer files, prepared and mailed credit card applications in their names, received credit cards, and charged merchandise on those cards, directing that some of the merchandise be sent to her grandmother's home. Through such a scheme, she obtained a VCR and various other household appliances. Ms. Pixley admitted that she did not purchase anything that was necessary for her children, that she already had credit on her own and did not need additional credit cards, and that she simply did not expect to get caught.

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...