In re Adoption of Victor A.

• Decision Date: 12 April 2005
• Docket Number: No. 72,72
• Citation: 872 A.2d 662,386 Md. 288
• Parties: In re ADOPTION/GUARDIANSHIP OF VICTOR A.
• Court: Maryland Court of Appeals

872 A.2d 662

386 Md. 288

In re ADOPTION/GUARDIANSHIP OF VICTOR A.

No. 72, September Term, 2004.

Court of Appeals of Maryland.

April 12, 2005.

C.J. Messerschmidt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Melanie Klein, Sr. Atty., Legal Aid Bureau, Inc., for petitioner.

Claudia A. Cortese, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for respondent.

Carolyn Johnson, Baltimore, amici curiae.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BATTAGLIA, J.

In this case, the Prince George's Department of Social Services petitioned for guardianship of Victor A., a child with severe disabilities. The trial court granted the petition and terminated the parental rights of Victor A.'s parents, Mr. A. and Ms. A. We have been asked to consider whether the Court of Special Appeals, in its remand, applied a different standard to determine the best interests of children with special needs, than is applied to children without such needs in a termination of parental rights proceeding.

I. Facts and Procedural History

Victor A. was born on March 26, 2000, to Ms. A. and Mr. A. He tested positive for cocaine and amphetamines at birth and was diagnosed with severe mental and physical disabilities, including Cerebral Palsy, Mental Retardation, Dysphagia, Myopia, Reflux, Global Developmental Impairment Microcephaly, Encephalopathy, and Failure to Thrive. As a result, Victor A. is severely spastic and is unable to control any of his extremities; he is unable to speak or walk and has a swallowing disorder requiring that he be fed through a gastronomy tube. He must use a wheelchair and braces to keep his legs straight and other supports for his body; he also takes several medications to alleviate his discomfort and to help his breathing. As part of his care, Victor A. requires 16 hours a day of in-home nursing services and has numerous doctors to help manage his disabilities, including a pediatrician, gastrologist, orthopedist, pulmonologist, and an ophthalmologist. He also receives speech therapy, physical therapy, and occupational therapy to prevent further deterioration that may result from his disabilities.

At the time of Victor A.'s birth, Ms. A. was an active drug user, and Mr. A. also was undergoing assessment as a substance abuser; neither could care for Victor A., who, after birth, remained in the hospital for approximately three months. On July 3, 2000, the Prince George's County Department of Social Services (PGDSS), filed an emergency shelter care petition in the Circuit Court for Prince George's County, Division of Juvenile Causes, after which a hearing¹ was held and temporary custody of Victor A. was awarded to PGDSS with instructions to place him with a relative, who PGDSS identified as his maternal aunt. The court allowed Ms. A. to have supervised visitation with Victor A. if she participated in a drug treatment program and remained drug free for three months; Mr. A. was permitted liberal unsupervised visitation unless he was found to have a substance abuse problem, which eventually turned out to be unsubstantiated. Thereafter, Victor A. was declared a child in need of assistance ("CINA")² and was released from the hospital. He resided with his aunt until October of 2000, when Ms. A. alleged that Victor A. had been sexually abused by his aunt's son. While the allegations of abuse were being investigated, PGDSS placed Victor A. in foster care, during which time Mr. A. visited Victor A. several times a week. The allegations of abuse were never corroborated, but when Victor A.'s aunt was asked to resume caring for him, she declined.

On January 25, 2001, the Circuit Court conducted a review hearing, during which the judge established a permanency plan³ of reunification and awarded full custody to Mr. A. Three months later, PGDSS filed a petition alleging that Victor A.'s medical needs were not being met, and during a hearing on the matter, the trial court rescinded Mr. A.'s custody, declared Victor A. to be a child in need of assistance for a second time, and placed him in foster care, but allowed Mr. A. and Ms. A. to have daily unsupervised visitation. In order to regain custody of Victor A., Mr. A. signed service agreements to complete parenting skills classes, to participate in a support group for parents of special needs children, and to obtain adequate housing. Ms. A. also agreed to undergo psychological evaluations, to participate in parenting skills classes, and to continue her drug treatment under a service agreement.

Thereafter, on May 28, 2002, the judge changed the permanency plan from reunification with Mr. A. to adoption, after PGDSS had reported that both parents had failed to meet some of the conditions set forth in the various service agreements. PGDSS then petitioned the court for a termination of the parental rights of Mr. A. and Ms. A., and on December 24, 2002, the court granted PGDSS limited guardianship and reduced each parent's visits to once per month.

Subsequently, on July 18, 2003, the court conducted a two-day termination of parental rights hearing, during which PGDSS sought guardianship of Victor A. for the purpose of having him placed for adoption. The judge assessed Victor A.'s needs in terms of his medical care and each parent's ability to care for him. Although the judge determined that both parents, for the most part, had complied with the service agreements by attending the parenting classes, he also found that Ms. A. had participated in the drug treatment program, submitted to psychological evaluations, and regularly visited Victor A. The court, however, concluded that Ms. A. was unable to care for Victor A. because she had an ongoing substance abuse problem and held that, "the return of Victor, Jr., to his mom does pose an unacceptable risk to [his] future safety[.]" While the judge expressed satisfaction as to Mr. A's compliance with the service agreements and noted that Mr. A. maintained regular contact with and provided for Victor A. financially, he found unacceptable that Mr. A. had failed to secure adequate housing to accommodate Victor A.'s needs, despite Mr. A.'s assurances that he would find appropriate housing if Victor A. were returned to his care.

At the conclusion of the hearing, the judge stated that he was "clearly convinced that the County [was] a better parent and that it [was] in the better interests of [Victor A.]. But whether it [was] in the best interests to terminate his parents' rights [he was] not sure." Thus, the judge reserved ruling on the matter to consider the evidence presented during the hearing regarding the available placement options for Victor A. and whether Mr. A. and Ms. A. could maintain visitation rights if their parental rights were terminated. After the hearing, the court made the following findings in an order issued on September 23, 2003:

This matter, having been brought before this Court by the Prince George's County Office of Law on a Petition for Termination of Parental Rights which was hereby held before this Court for trial on July 18, 2003 and further hearing held on August 14, 2003, and having heard testimony and having weighed the relevant factors in this matter, it is on this 23rd day of September 10, 2003, by the Circuit Court for Prince George's County, hereby

ORDERED, that this Court concludes that it is in the best interests of Victor [A.] for termination of his natural parents rights;[⁴] and is further

ORDERED, that this Court hereby grants the Prince George's County Department of Social Services' (hereinafter referred as "Department") petition to be granted guardianship of Victor [A.], with the right to consent to adoption and/or long term care, and further the right to make application to this Court for a change of name; and it is further

ORDERED, that the Court also finds that until such time as the "Department" identifies such adoptive or long-term resource, that it is in the best interests of Victor [A.] to continue visitation with [Ms. A.] and [Mr. A.] under the supervision of the "Department."

ORDERED, that the above-captioned cases are hereby closed statistically.

Mr. A. and Ms. A. appealed the judgment terminating their parental rights to the Court of Special Appeals, arguing that PGDSS had failed to establish by clear and convincing evidence that termination of their parental rights was in Victor A.'s best interests. The intermediate appellate court agreed with Victor A.'s parents in In re Adoption/Guardianship of Victor A., 157 Md.App. 412, 852 A.2d 976 (2004), and held that the trial court did not make adequate factual findings to support a termination of their parental rights. In reaching its decision, the Court of Special Appeals opined that the trial court "did not explain its mixed conclusion of fact and law that termination of the As' parental rights [was] in Victor [A.]'s best interest" in light of the numerous findings in favor of preserving the parental rights and that it had failed to determine how continuation of parental rights would harm or diminish Victor A.'s prospects for adoption, pursuant to Maryland Code, Section 5-313(a)(3)(iv) of the Family Law Article (1984, 1999 Repl.Vol.).⁵ Thus, the Court of Special Appeals vacated the judgment terminating Mr. A. and Ms. A's parental rights and remanded the case to the trial court to assess all the available permanent placement options for Victor A. in deciding whether termination of parental rights would be appropriate.

PGDSS filed a petition for writ of certiorari in this Court and the Public Justice Center filed a Petition and Memorandum in Support⁶ thereof and asked to participate as amici curiae. We granted both petitions and issued the writ of certiorari⁷ to consider the following questions, which we have renumbered to clarify the issues in this case:

1. Did the Court of Special Appeals err in reaching and deciding the question of the completeness of the

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