Keeney v. Prince George's County Dept. of Social Services

• Decision Date: 18 October 1979
• Docket Number: No. 124,124
• Citation: 43 Md.App. 688,406 A.2d 955
• Parties: Robert L. KEENEY v. PRINCE GEORGE'S COUNTY DEPARTMENT OF SOCIAL SERVICES.
• Court: Court of Special Appeals of Maryland

Page 688

43 Md.App. 688

406 A.2d 955

Robert L. KEENEY v. PRINCE GEORGE'S COUNTY DEPARTMENT OF SOCIAL SERVICES.

No. 124.

Court of Special Appeals of Maryland.

Oct. 18, 1979.

Alan J. Goldstein and Horowitz, Oneglia, Goldstein, Foran & Parker, P.A., College Park, for appellant.

Robert B. Ostrom, County Atty. for Prince George's County, Michael O. Connaughton, Deputy County Atty., Karel C. Petraitis, Asst. County Atty. and Donna C. Aldridge, Hyattsville, for appellee.

Submitted to GILBERT, C. J., and MOORE and MELVIN, JJ.

GILBERT, Chief Judge.

"If ever we are justified in reading a statute, not narrowly as through a keyhole, but in the broad light of the evils it aimed at and the good it hoped for, it is here." United States ex rel. Marcus v. Hess, 317 U.S. 537, 557, 63 S.Ct. 379, 391, 87 L.Ed. 443, 456 (1943).

That Robert L. Keeney is and has been locked behind prison bars for the crime of assault with intent to maim, arising out of bizarre sexual conduct, has not prevented him from opposing Prince George's County Department of Social Services's (Department) attempt to obtain guardianship with the right to consent to the adoption and/or long-term care of Keeney's children. Keeney is of the belief that the State may not imprison him for a prolonged period on the one hand and on the other take his children from him because they have been "under continuous foster care for a period of two consecutive years," Md.Ann.Code art. 16, § 75(a), while he has been serving his term.

In the Circuit Court for Prince George's County, Keeney loosened a constitutional pincers movement against Art. 16, § 75(a). He argued that 1) the presumption of the statute, as applied, violated his right to due process of law, and 2) the denial to him of access to his children and Vice versa violated the equal protection clause of the Fourteenth Amendment.

Judge Vincent J. Femia disagreed with Keeney and granted to the County Department of Social Services the relief that they sought, namely, the guardianship of Keeney's five children with the right vested in the county to consent to adoption and/or long-term care. Keeney's protestations did not end with the circuit court's decree. ¹ He, Via Counsel, has journeyed to Annapolis, where he has repeated his assault on the constitutionality of Article 16, § 75(a). That section of the code provides:

"After a child has been under continuous foster care for a period of two consecutive years under the custody of an agency authorized by law to make placements, It shall be presumed by the court that it is in the best interests of the child to award to that agency a decree granting guardianship with the right to consent to adoption or long term care short of adoption, without the consent of the natural parent or parents; provided that notice otherwise required by law has been given." (Emphasis supplied.)

The record is crystalline that Keeney's contact with his children abruptly ceased on November 9, 1975, when he was arrested on the charge for which he is now confined. Keeney testified that he had made no effort to communicate with his children since his arrest. He said he "was told . . . (he) could not contact them, write them or anything." Keeney identified his former attorney and a social worker as the parties who had so advised him. At Christmas time, inferentially of the same year, Keeney and his spouse "tried to give . . . gifts to them," but a "Mr. W. H. Tredwell, that was handling . . . (his) affairs at the time, got the gifts and was told that he could not give them or the children couldn't have them." The identity of the person or persons who supposedly forbade the giving of the gifts by the parents to the children was not revealed. Keeney said that he had not communicated with his children because he was advised by the proverbial, ambiguous and somewhat evasive, "They" that "it was best we not interfere. . . ." The children, as of the time of the trial of this matter, had not made contact with their father, and he never requested the Department of Social Services to allow him to see the children.

Keeney's testimony was not refuted. The appellee did not call as a witness the attorney who allegedly advised Keeney not to contact his, Keeney's, children.

The appellant argues "that the initial denial of permission to contact his children by the Appellee, without a hearing, violated his due process rights. Appellant had the right to be heard before his access rights to his children were cut off. This is especially true in light of Article 16, Section 75 in which access to the child is crucial in order to rebut the statutory presumption." We observe that appellant, by his own admission, made no effort to contact his children during his incarceration, did not request that they be allowed to visit him, nor did he inquire of anyone as to their health or welfare. Except for one effort in 1975 to send them Christmas presents, which effort was allegedly frustrated, appellant was seemingly content to allow the matter of his children to be left to others. It was not until appellant was advised of the Department's desire to seek guardianship for the purpose of consenting to adoption that his parental interests were re-stimulated. There is nothing within the record to indicate that appellant ever requested, much less had been denied, visitation with his children. We think appellant's argument with respect to a denial of visitation rights is utterly devoid of merit. In our view Judge Femia was not clearly erroneous in his factual determination that appellant was never denied access to the children. ²

Appellant next asserts that, as applied, Art. 16, § 75(a) works an irrebuttable presumption that operates as a rule of substantive law which automatically deprives him of a protected liberty interest ³ without concomitantly providing him with an opportunity to mount a defense. He maintains due process requires a separate notice and hearing as a prerequisite to the Department's use of Art. 16, § 75(a) else the statutory rebuttal opportunity afforded by Art. 16, §§ 75(b) and (c) is reduced to a sanctimonious saying Sine substance. The trial court interpreted appellant's argument as a five step process, viz. :

1) Art. 16, § 75(a), as applied, denies those without access, the fundamental right to raise children;

2) Art. 16, §§ 75(b) and (c) enumerate factors which may, if admitted into evidence, rebut the presumption of Art. 16, § 75(a);

3) The ability to achieve and adduce evidence of any of Art. 16, §§ 75(b) and (c) factors presupposes access to one's children;

4) Prior denial of access precludes the possibility of rebutting Art. 16, § 75(a), and thus effectuates an irrebuttable presumption,

5) against which the guardianship proceeding authorized by Art. 16, § 72 is insufficient due process protection.

Phrased another way, appellant avers that he is caught in a Catch-22 ⁴ situation. He is, because of his confinement in a penal institution, denied access to his children, and at the same time the Department seeks to take custody of the children from him because he has not had access to the children.

There may be times when the application of Art. 16, § 75(a) would be manifestly unfair to an imprisoned parent. When that event appears likely, the chancellor is perfectly capable of separating the wheat from the chaff. Courts are not summarily going to provide for the termination of parental rights on the basis of a parent's being confined in a penal institution. If such confinement were the only reason that the Department of Social Services sought guardianship, we would strike down the decree on the ground that the chancellor did not properly consider or weigh the evidence in rebuttal of the legislatively created presumption. That a parent is involuntarily separated from a child, be it by imprisonment, hospitalization, military service or other similar reason, does not indicate an abdication of parental responsibility, love, and affection.

The two-year continuous foster care creates a rebuttable presumption, not an absolute irrefutable fact. To be sure that the "presumption" was not treated as conclusive, the General Assembly spelled out in crystal clear language the factors that courts must consider whenever the presumption of Art. 16, § 75(a) is controverted.

Md.Ann.Code art. 16, §§ 75(b) and (c) respectively provide:

"(b) The court in considering evidence to rebut this presumption, among other factors, shall consider the following:

(1) The interaction and interrelationship of the child with his natural and foster parent or parents, his siblings, and any other person who may significantly affect the child's best interests;

(2) The child's adjustment to his home, school, and community; and

(3) The mental and physical health of all individuals referred to in subparagraph (1).

(c) Additionally, in order to rebut the presumption, the court Shall require substantial proof that:

(1) The natural parent will be able to resume his or her parental duties within a reasonable period of time; or

(2) The natural parent has played a constructive role in the child's welfare during the time he has been in foster care.

In evaluating the parent's role, the court may consider, among other factors, (1) the frequency and regularity of personal contact with the child, (2) demonstrated love and affection, (3) parental arrangement for the child's future education and financial support, both in relation to the parent's means." (Emphasis supplied.)

Thus, the statute, by its very terms provides an opportunity to rebut the legislatively created presumption. We agree with the trial judge that (1) access to the appellant's children was not denied the appellant, and more importantly, that (2) access is not absolutely required to muster an evidentiary rebuttal. Judge Femia stated:

"Even without access to one's children there still exists a fair opportunity to rebut the presumption. Article 16, § 75 provides in part:...