Court of Special Appeals of Maryland. Decided January 10, Simmons for appellant Edwin Owen Sanders, Jr. Tietz for other appellant. Mark Colvin and George E. Murrell, Public Defender, on the brief, for appellee. The United Nations Declaration states that "[m]ankind owes to a child the best it has to give. 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. Courts, however, are limited to the framework of that which is available in each particular case.
Solnit, Beyond the Best Interests of the Child 7 , 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, , 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.
Tracey found that Christopher's best interest and welfare would be served by his continuing, temporarily, in his foster home with Mr.
Evidence presented at both the adjudicatory and the dispositionary hearings indicated that the appellee, Rebecca Sanders, was not the cause of Christopher's injuries. 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. A polygraph test, administered to Rebecca Sanders on February 25, , confirmed that she had neither knowledge of, nor was responsible for, her baby's injuries. During Christopher's enforced absence in , 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. Sanders also retained a pediatrician specializing in abuse cases to examine Christopher periodically after his return to her custody. Sanders's movement to the home of her parents in Ohio was caused by her separation from her husband in and resulting severe financial problems.
The combined effect of her almost dire financial plight and the fact that she was experiencing a difficult pregnancy prevented Mrs. Sanders from travelling to Maryland and visiting Christopher. 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. As part of the academic requirements, she has been working with and observing young children.
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. 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. 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. 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.
In the course of the July 20, 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 be the "best of possible worlds" for Christopher.
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, in their book, Beyond the Best Interests of the Child. Under the "psychological parenthood" principle, separation from the natural parent for a sufficient length of time saps the bond of love and affection between child and parent while simultaneously forging a strong psychological link which joins the child to a surrogate parent. Under those given circumstances, the surrogate parent becomes the "psychological parent," the one to whom the child turns for security, love, and a sense of emotional well-being.
After the shift of allegiance by the child to the "psychological parent" is completed, a return to the biological parent would, theoretically, result in severe emotional trauma, detrimental to the child's best interests. Solnit, Beyond the Best Interests of the Child 41 Seemingly, because Christopher was ignorant of that theory, he continued to call Rebecca Sanders "mother" long after the two 2 month deadline had passed.
For whatever unexplained reasons, MCDSS chose not to enlighten appellee on either the six 6 or two 2 month theories and their dire consequences. Thus, even if Mrs. Sanders grew and developed into a paragon of motherhood, she still could never reclaim Christopher because of the attachment formed by the infant to the "psychological parent.
Tracey on July 20, , he reacted with caution and skepticism. Paul Glass, [Chief of the Section of Child Mental Health for the Health Department of Montgomery County] places an impossible burden on any natural parent which may well lead to a disincentive for agencies and foster families to provide a positive program to the natural parents of help and services which could possibly lead to the return of the child to his or her biological parent.
Unfortunately, there is no such thing as "a simple custody case," for as we articulated in Mullinix v. 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.
Botein, Trial Judge 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. The Supreme Court has termed the right to rear one's child "essential," Meyer v.
Child rearing constitutes a right "far more precious 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. The authority of the State to remove a child from the home into which he was born is firmly entrenched in Anglo-American law. 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. See generally 2 J. Kent, Commentaries on American Law 11th ed. 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.
Kent, Commentaries on American Law 11th Ed. Story, Commentaries on Equity Jurisprudence 7th ed. 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.
While there is a school of thought that shelves sentiment and ignores the old shibboleth that "bluid is thicker than water," Maryland has remained loyal to the common law presumption that the right of either natural, inter-married parent is generally superior to that of a third party. See also 2 J. That presumption is overcome and such custody will be denied if a the parent is unfit to have custody, or b if there are such exceptional circumstances as make such custody detrimental to the best interest of the child.
See also Thumma v. 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. In this State, resolving disputes over child custody is a function of the equity courts.
This jurisdiction is a continuing one, and the court may from time to time set aside or modify its decree or order concerning the child. See also Barnard v. 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. He acts as parens patriae to do what is best for the interest of the child He is not adjudicating a controversy between adversary parties, to compose private differences Equity does not concern itself with such disputes in their relation to the disputants.
Its concern is for the child. Although at one time this Court believed itself free, based upon language in Melton v.