GILBERT, C.J., delivered the opinion of the Court.
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 (1962); 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
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).
Following an emergency hearing on January 26, 1976, the court ordered Christopher removed from his parents'
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,"
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
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
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,
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).
The hearings before Judge Tracey also disclosed that MCDSS had determined as early as December 1976 that Christopher should never return to his biological mother. It is clear that MCDSS's determination to oppose Christopher's return to the custody of his mother was not a reflection on Mrs. Sanders's culpability, or lack thereof, for her son's injuries or upon her ability to care for him adequately. The justification for MCDSS's unbending stand is, as we have previously indicated, the socio-psychological theory called "psychological parenthood" espoused by Joseph Goldstein, Anna Freud, and Albert J. Solnit,
When MCDSS presented the theory to Judge John C. Tracey on July 20, 1977, he reacted with caution and skepticism. Judge Tracey said:
Judge Tracey then proceeded to return custody of Christopher to his biological mother, the appellee. On August 8, 1977, this Court granted a Stay of Final Order Pending Appeal.
Unfortunately, there is no such thing as "a simple custody case," for as we articulated in Mullinix v. Mullinix, 12 Md.App. 402, 412, 278 A.2d 674, 679 (1971), "[c]ustody cases are like fingerprints because no two are exactly the same." B. Botein, in his book, Trial Judge, correctly declares, "[a] judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision he renders." B. Botein, Trial Judge 273 (1952). The Court cannot simply appraise both parties and cavalierly Solomonize the child by dividing "the living child in two, and giv[ing] half to the one, and half to the other." I Kings 3:25.
The Supreme Court has termed the right to rear one's child "essential," Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923), and one of the "basic civil rights of man." Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942). Child rearing constitutes a right "far more precious ... than property rights." May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221, 1226 (1953). The custody right of the biological parents is not unfettered because of the parens patriae power of the State to protect its younger citizens from abuse and neglect. Dietrich v. Anderson, 185 Md. at 116, 43 A.2d at 191.
The authority of the State to remove a child from the home into which he was born is firmly entrenched in Anglo-American law. Under the early English common law, the pater families was entitled to the custody of his offspring as an absolute legal right regardless of the welfare of the
The father's right to custody of his child was brought to the "New World" in a somewhat diluted form. Colonial courts fused the father's right to his duty to furnish discipline and support. Thomas, Child Abuse and Neglect Part I: Historical Overview, Legal Matrix, and Perspectives, 50 N.C.L. Rev. 293, 299-300 (1972). See generally 2 J. Kent, Commentaries on American Law 203-05 (11th ed. 1867). When a parent failed to execute those duties properly, the government could authorize a suitable person to take charge of the child and function as guardian.
Accord, Dietrich v. Anderson, 185 Md. at 116, 43 A.2d at 191.
Growing concern for the welfare of the child and the fading, if not absolute disappearance, of the concept of the child as parental property has led to a gradual modification in judicial attitude and approach in custody matters. United States v. Green, 26 Fed. Cas. 30, 31-32 (No. 15256) (C.C.R.I. 1824); In re Bort, 25 Kan. 308, 309-10, 37 Am.Rep. 255, 256-57 (1881). While there is a school of thought that shelves sentiment and ignores the old shibboleth that "bluid is thicker than water,"
The burden is cast upon those opposing the natural parents to prove that remaining with the biological family would be deleterious to the child's best interest. DeGrange v. Kline, 254 Md. at 242-43, 254 A.2d at 354; Trenton v. Christ, 216 Md. at 420, 140 A.2d at 661; Ross v. Pick, 199 Md. at 351, 86 A.2d at 468.
In this State, resolving disputes over child custody is a function of the equity courts. Ross v. Hoffman, 280 Md. at 174, 372 A.2d at 585; Mullinix v. Mullinix, 12 Md. App. at 409, 278 A.2d at 678.
See also Barnard v. Godfrey, 157 Md. at 267, 145 A. at 616; Note, Alternatives to "Parental Right" in Child Custody Disputes Involving Third Parties, 73 Yale L.J. 151, n. 3 (1963). The court of equity "stands as a guardian of all children, and may interfere at any time and in any way to protect and advance their welfare and interests." In re Bort, 25 Kan. at 310, 37 Am.Rep. at 257.
Although at one time this Court believed itself free, based upon language in Melton v. Connolly, 219 Md. at 188, 148 A.2d at 389, and Butler v. Perry, 210 Md. 332, 339-40, 123 A.2d 453, 456 (1956), to substitute our judgment for that of the chancellor in custody disputes, Sullivan v. Auslaender, 12 Md.App. 1, 3, 276 A.2d 698, 699-700 (1971), we were told most emphatically in Davis v. Davis, 280 Md. 119, 372 A.2d 231 (1977), reversing 33 Md.App. 295, 364 A.2d 130 (1976), that our scope of review is limited to whether the trial judge abused his discretion or whether his findings of fact are clearly erroneous. The chancellor's findings of fact are to be given great weight since he has the parties before him and has "the best opportunity to observe their temper,
Where modification of a custody award is the subject under consideration, equity courts generally base their determinations upon the same factors as those upon which an original award was made, that is, the best interest of the child. Unfortunately, there is no litmus paper test that provides a quick and relatively easy answer to custody matters. Present methods for determining a child's best interest are time-consuming, involve a multitude of intangible factors that ofttimes are ambiguous. The best interest standard is an amorphous notion, varying with each individual case, and resulting in its being open to attack as little more than judicial prognostication. The fact finder is called upon to evaluate the child's life chances in each of the homes competing for custody and then to predict with whom the child will be better off in the future. At the bottom line, what is in the child's best interest equals the fact finder's best guess.
While the court considers all the above factors, it will generally not weigh any one to the exclusion of all others. The court should examine the totality of the situation in the
MCDSS, however, contends that in failing to apply the "psychological parenthood" theory to the exclusion of all else, Judge Tracey abused his discretion. In its well-intentioned zeal to lay down simple, definite criteria for ascertaining a child's best interest, MCDSS has oversimplified the problem. In effect, MCDSS has devised and advocates a formula based on Beyond the Best Interests of the Child. The adoption of the formula would reduce custody disputes to mathematical certainty. By adding a child's age to the time spent away from his natural parents, MCDSS arrives at the appropriate custody situs. Thus, in an exercise of basic algebraic principles, A (age) + T (time) = C (custody), all custody cases are easily mathematically resolved.
As with many seemingly simple solutions to complex problems, A + T = C is not a panacea. Custody cases involve too many people, conditions, and human emotions to be reduced summarily to a mere mathematical process.
Fuller, Collective Bargaining and the Arbitrator, Wis.L.Rev. 3, 33 (1963). One patent fallacy in the A + T = C formula is that it leaves no room for adjustments to individual situations.
We have previously rejected the notion of examining a
Unrestrained application of the "psychological parenthood" theory can lead to absurd results as evidenced by the views espoused by Dr. Glass in his testimony in the instant case. A hypothetical was posed to the doctor in which a child was removed from his home by kidnappers and kept safe and well cared for by the criminals for an extended period of time. Dr. Glass said that it would be in the child's best interest to remain with the kidnappers since psychologically they would be his family. While the probability of the average youngster being carried off by kidnappers or gypsies is slight, the instance of natural, adoptive or foster parents fleeing the jurisdiction with a child they have been ordered to relinquish is growing increasingly common.
Evidence offered by social workers, psychologists and psychiatrists may be necessary in custody cases. The equity court, however, is entitled to weigh that evidence along with contradictory testimony and its own observations. Reliance upon "the auxiliary services of psychiatrists, psychologists, and trained social workers ... should not be too obsequious or routine or the experts too casual." Ross v. Hoffman, 280 Md. at 191, 372 A.2d at 594. Such reliance could lead the courts, in acts of misapplied psychology, to separate unjustly family members.
Caution is particularly apropos in the case sub judice where Mrs. Sanders was financially unable to match the weight of experts brought forth by the MCDSS.
The appellants stress that Christopher is now in a home offering superior material advantages. Mr. and Mrs. Shepard, his foster parents, appear to love the child and have expressed an interest in adopting him. Judge Tracey, however, was not
We think Judge Tracey's findings of fact were not clearly erroneous, if, indeed, they be erroneous at all. The evidence before the trial judge clearly substantiates Mrs. Sanders's claim that she was never the abuser, and that although the Sanders's home may once have been a dangerous environment for Christopher, such is no longer the case. "Conditions which might justify relieving a parent temporarily of the custody of his child would not necessarily support absolute and permanent transfer of the child to a stranger." Roy v. Holmes, 111 So.2d 468, 470 (Fla. 1959).
MCDSS is legitimately concerned with preventing Christopher from once again falling victim to the battered child syndrome. Its concern, however, has been carried to the point of protecting Christopher from a danger that no longer exists.
We hold that Judge Tracey did not abuse his discretion in directing the return of Christopher to the custody to his mother.
Costs to be paid by appellants, Montgomery County Department of Social Services and Edwin Owen Sanders, Jr.
Mandate to issue forthwith.
Anna Freud, Hempstead Child-Therapy Clinic.
Albert J. Solnit, Child Study Center, Yale University.