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Md. Court of Appeals weighs child vs. parent interests

ANNAPOLIS — The Court of Appeals grappled Wednesday with whether a troubled mother should be allowed to preserve her parental rights in light of her daughter’s flourishing relationship with foster parents who want to adopt her.

Judge Joseph F. Murphy Jr. summed up the case before the high court as pitting “the irresistible force” of parental rights against “the immovable object” of the child’s best interests.

Judge Sally D. Adkins asked if a court could terminate parental rights, permit the foster family to adopt the child yet still provide for visitation by the biological mother.

But retired Judge John C. Eldridge, sitting by special assignment, called such a resolution unlikely because adoptive parents have a right to decide who visits their child.

Adkins appeared to accept Eldridge’s view grudgingly.

“So we are powerless to make provision for continuing access of any sort?” Adkins asked.

The high-court case was brought by the daughter’s attorneys after the Baltimore City Circuit Court and the Court of Special Appeals rejected a January 2008 petition from the city’s Department of Social Services to terminate the mother’s parental rights.

The daughter, identified in court papers as Ta’Niya C, was deemed a Child in Need of Assistance in February 2005 based on complaints of abuse and neglect by her mother, identified as Vanetta L. The father did not challenge the petition.

In the circuit court, Judge Dennis M. McHugh said a presumption exists in favor of preserving parental rights. McHugh said the department failed to rebut that presumption by proving with “clear and convincing evidence” that the mother was unfit or that “exceptional circumstances” made continuation of parental relations detrimental to the child’s best interest.

The Court of Special Appeals agreed, and Ta’Niya’s lawyers from Maryland Legal Aid Bureau Inc. sought high-court review.

Whose best interests?

Lawyer Joan Little, pressing the girl’s appeal, said the lower courts had erroneously placed “the best interests of the parent” ahead of the child’s.

Ta’Niya, “an active, energetic 7-year-old,” now lives with loving foster parents who cannot adopt her because the courts preserved the mother’s parental rights, despite her record of neglect, said Little, chief attorney of Legal Aid’s Child Advocacy Unit in Baltimore.

Between October 2004 and January 2007, Vanetta requested only two visits with her daughter and saw her only three times between November 2006 and January 2008, Little argued. The mother also failed to comply with a department requirement that she maintain stable housing and hold down a job, although she did complete required parenting classes, Little said.

Ta’Niya has been “sentenced to a life in foster-care limbo” because the lower courts placed the mother’s rights above her daughter’s interests, Little said.

Little added — in an argument which drew skepticism from the bench — that “the issue is the best interest of the child, not the best interest of the parent.”

“But it’s not to the exclusion of the fundament interest of the parent,” Judge Lynne A. Battaglia interjected.

Battaglia noted a termination of parental rights is final. Thus, before granting a petition, a judge should consider if a parent would, in time, be fit to care for the child, she said.

A judge should not say, “She’s unfit now. The game is over,” Murphy added.

Neither judge defined what a reasonable waiting time would be.

Vanetta’s attorney said the courts correctly refused to terminate the mother’s parental rights due to the strong presumption in favor of preserving the parent-child bond.

“A parent is going to lose not just custody, but any legal relationship with the child” when a judge grants a termination petition, said Brian L. Zavin, an assistant public defender.

Thus, judges must have “clear and convincing evidence that the rights should be terminated,” Zavin said. Such evidence did not exist with Vanetta, whose daughter still calls her “mom,” he added.

But Eldridge appeared unconvinced.

A child’s thriving relationship with a foster family can be “a major factor when it comes to the best interests of the child,” he said.

A January Court of Appeals decision, In Re: Adoption/Guardianship of Alonza D., Jr., held that the length of time children have spent with foster parents, and the extent of the bonds formed with them, cannot be the determinative factors in terminating parental rights.

The court did not indicate when it will decide In Re: Adoption/Guardianship of Ta’Niya C., No. 133, September Term 2009.

Eldridge was sitting in for Chief Judge Robert M. Bell, who recused himself from the case. Bell did not disclose the reason for his recusal.