Montgomery County Dept. of Social Services v. Sanders

• Decision Date: 10 January 1977
• Docket Number: No. 943,943
• Citation: 381 A.2d 1154,38 Md.App. 406
• Parties: MONTGOMERY COUNTY DEPARTMENT OF SOCIAL SERVICES et al. v. Rebecca SANDERS.
• Court: Court of Special Appeals of Maryland

Page 406

38 Md.App. 406

381 A.2d 1154

MONTGOMERY COUNTY DEPARTMENT OF SOCIAL SERVICES et al. v. Rebecca SANDERS.

No. 943.

Court of Special Appeals of Maryland.

Jan. 10, 1977.

Adam J. Wojciak, Jr., Asst. County Atty., with whom was Richard S. McKernon, County Atty. for Montgomery Count on the brief, for appellant, Montgomery County.

William G. Simmons, Rockville, for appellant Edwin Owen Sanders, Jr.

Gilbert E. Tietz, Rockville, for other appellant.

Mark Colvin and George E. Burns, Jr., Asst. Public Defenders, with whom was Alan H. Murrell, Public Defender on the brief, for appellee.

Argued before GILBERT, C. J., and MENCHINE ^* and LOWE, JJ.

GILBERT, Chief Judge.

The United Nations Declaration states that"(m)ankind owes to a child the best it has to give." Very few persons will quarrel with the tenor of that assertion. What gives rise to controversy is not the general proposition of mankind's obligation to provide what is best for the child, but rather, what is best. The theoretical best mankind can provide is not always the best that society, through its courts, can implement. Consistently, the courts of Maryland have endeavored, in custody cases, to look to the "best interest" of the child. See e. g., Ross v. Hoffman, 280 Md. 172, 175, 372 A.2d 582, 585 (1977); DeGrange v. Kline, 254 Md. 240, 243, 254 A.2d 353, 354 (1969); Kline v. Bennett, 245 Md. 674, 678, 225 A.2d 863, 865 (1967); Butler v. Perry, 210 Md. 332, 342, 123 A.2d 453, 458 (1956); Trudeau v. Trudeau, 204 Md. 214, 218, 103 A.2d 563, 564 (1954); In re Harris, 200 Md. 300, 310, 89 A.2d 615, 619 (1952); Ross v. Pick, 199 Md. 341, 351, 86 A.2d 463, 468 (1952); Miller v. Miller, 191 Md. 396, 407, 62 A.2d 293, 298 (1948); Dietrich v. Anderson, 185 Md. 103, 116-17, 43 A.2d 186, 191-92 (1945); Kartman v. Kartman, 163 Md. 19, 22, 161 A. 269, 270 (1932); Barnard v. Godfrey, 157 Md. 264, 267, 145 A. 614, 616 (1929). Courts, however, are limited to the framework of that which is available in each particular case.

In the case now before us, the Montgomery County Department of Social Services (MCDSS) and Edwin Owen Sanders, Jr., seek to have us place judicial imprimatur upon the socio-psychological concept of "the psychological parent," J. Goldstein, A. Freud, A. Solnit, Beyond the Best Interest of the Child 7 (1973), as the paramount factor in awarding custody. On the other hand, the biological mother, Rebecca Sanders, asks that we reject outright that approach to custody determination. We shall neither sweepingly commend nor condemn the "psychological parent" concept in custody proceedings, but we expressly limit our holding in the particular circumstances of the case sub judice to declaring that the award to the psychological parent is not in the best interest of the child.

The child, Christopher Robyn Sanders, was only ten (10) months old when his mother, the appellee, Mrs. Rebecca Sanders, took him, on January 3, 1976, to Walter Reed Hospital for treatment of what she believed to be a viral infection. The hospital records, however, indicate that the actual cause of Christopher's debilitated condition was a "fractured left clavicle, first left rib fracture, older fracture of right femur, older chipped fracture of left femur, periosteal elevation of the left humerus, multiple bruises, bite mark on left cheek, scratch marks on right abdomen, and old bruises on the head." This shocking physical condition of the child prompted the MCDSS to petition the District Court for Montgomery County for Juvenile Causes to declare Christopher a "Child in Need of Assistance." The petition was filed pursuant to the Md.Cts. & Jud.Proc.Code Ann. § 3-801(e)(2) (1974). ¹

Following an emergency hearing on January 26, 1976, the court ordered Christopher removed from his parents' custody, placed under the jurisdiction of the court, and committed to MCDSS "for temporary shelter care."

On April 26, 1976, an adjudicatory hearing was held, and Judge John C. Tracey found that Christopher's best interest and welfare would be served by his continuing, temporarily, in his foster home with Mr. and Mrs. Ernest Shepard. At a subsequent dispositionary hearing, July 2, 1976, Judge Tracey reaffirmed Christopher's commitment to MCDSS.

Evidence presented at both the adjudicatory and the dispositionary hearings indicated that the appellee, Rebecca Sanders, was not the cause of Christopher's injuries. Mr. Edwin Sanders, Jr., apparently ignorant of the old maxim, "patria potestas in pietate debet, non in atrocitate, consistere," ² admitted biting his son on the face as a disciplinary measure because the infant child had bitten him on the ear. ³ Sanders also testified that he may have been too rough in his expressions of paternal affection, which may have resulted in physical injury to the child.

Dr. Frederick Ruyman, Assistant Chief of the Department of Pediatrics at Walter Reed Hospital testified that the cause of the fracture of the left clavicle could have been a severe fall. Similarly, the fractures of the left tibia and humerus could have been caused by Mr. Sanders' pulling and twisting Christopher's arm in the course of "rough play." Sanders told the court that although he believed his wife failed to care properly for their son he had never seen her strike or attempt to harm the child.

A polygraph test, administered to Rebecca Sanders on February 25, 1976, confirmed that she had neither knowledge of, nor was responsible for, her baby's injuries. Moreover, Mrs. Sanders contradicted her husband's allegations of neglect and offered evidence that she kept Christopher well fed and clothed, and that she never left him unattended for extended periods of time.

During Christopher's enforced absence in 1976, Mrs. Sanders made a good-faith effort to create an environment for her son which would meet with the approval of MCDSS. She, having moved to Toledo, Ohio, entered a counselling program under the auspices of the Family Services of Toledo. Her counselling sessions were later expanded into a full therapy program. Mrs. Sanders also retained a pediatrician specializing in abuse cases to examine Christopher periodically after his return to her custody.

Mrs. Sanders's movement to the home of her parents in Ohio was caused by her separation from her husband in 1976 and resulting severe financial problems. The combined effect of her almost dire financial plight and the fact that she was experiencing a difficult pregnancy ⁴ prevented Mrs. Sanders from travelling to Maryland and visiting Christopher. Nevertheless, inferentially, she telephoned the MCDSS weekly to inquire about her son.

On October 15, 1976, appellee filed a "Petition for Change of Placement of Minor Child to the Natural Mother." At the hearing in January 1977, Mrs. Sanders testified that she was continuing her therapy and was willing to consult additional psychologists or psychiatrists if so ordered by the court. Her expectations concerning Christopher's homecoming were realistic, and she recognized that a period of adjustment would be involved.

The record reveals that during her residency in Ohio, prior to the October hearing, appellee completed five (5) courses at the University of Toledo Community College, including one on child development in which she said that she received a grade of "A." She aspires to attain an associates degree in social service technology. As part of the academic requirements, she has been working with and observing young children. Dr. Robert A. Wilson, Chairman of the Department of Social Behavior at Columbia Union College offered expert testimony, in July 1977, that Mrs. Sanders is capable of putting her newly acquired knowledge on child rearing into practice.

The appellee is a devout Seventh Day Adventist and has been assisting children under the age of four (4) years in her church's Sunday school program. Additionally, she has been babysitting the infant son of a friend. Mrs. Sanders has arranged for a babysitter to watch Christopher while she attends classes at the Community College. Efforts have also been made by her to obtain employment and to secure public housing.

Among the original reasons set forth by MCDSS for opposing transfer of custody back to Mrs. Sanders is the possibility of Christopher's living with his maternal grandparents, the Bilbys. MCDSS has expressed reservations concerning the suitability of the Bilby home as a temporary shelter for the child. Social Services' reports characterized Mr. Bilby as nervous, defensive and hostile. Mr. Bilby's attitude, in light of his strong belief that his grandchild had been unjustly removed from the family unit, is not completely indefensible. The Social Services' description of Mr. Bilby must also be balanced against the fact that he holds a responsible job as a vocational high school teacher, is deeply concerned over the welfare of his family and displays no propensity for violence. There is absolutely nothing in the record to cause one to suspect that he would ever harm his grandson. The reports pictured the grandmother, Mrs. Bilby, as a patient, intelligent woman with deep religious convictions. She indicated a willingness to resign her job, a clerical position, in order to spend extra time assisting her daughter in caring for Christopher. The Bilbys have also offered financial aid to their daughter and grandson.

On petition, the court appointed an attorney to represent "the best interest and welfare" of Christopher. Md.Cts. & Jud.Proc.Code Ann. § 2-102(a) (1974). ⁵ Review hearings were held on June 14, June 15, July 20, and July 28, 1977. In the course of the July 20, 1977 hearing, Dr. James Harrell, Chief Psychologist and Coordinator of Mental Health Services for the Montgomery County Health Department, testified that persons "equal(ly) or more so psychologically distressed" than the appellee function adequately as parents. He rendered no opinion as to which home, the appellee's or the foster parents', would prove to...