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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0464 September Term, 2006

IN RE: ADOPTION/GUARDIANSHIP OF HAROLD H.

Hollander, Adkins, Rodowsky, Lawrence F., (Retired, Specially Assigned) JJ.

Opinion by Adkins, J.

Filed: November 30, 2006

Appellant, Mojisola A., asks us to review the decision of the Circuit Court for Prince George's County to terminate her parental rights with respect to her son, Harold, who was born on February 7, 1995. The unfortunate victim of a severe stroke in 2001, when she

was only 41, appellant has resided in a nursing home since that date, while Harold lived elsewhere. Asserting her constitutional

rights as a parent, applicable statutes, and judicial precedent, Ms. A. argues the circuit court erred in terminating her parental rights on the grounds of her stroke-induced neurological deficits. Mindful of Ms. A's lamentable plight, we are nonetheless persuaded that the circuit court acted within its discretion and without error in terminating her rights in order to preserve Harold's best interests. BACKGROUND Mojisola A. (Ms. A.) is the mother of Harold H.. She had children through a previous marriage to Mr. Akin S., and after divorcing Mr. S., Ms. A. became involved with Harold's father. Harold was born on February 7, 1995, in North Carolina.1 Harold developed a close relationship with Mr. S., and with the children of Mr. S. and his mother. Harold and his mother moved The parties agree

to Maryland before Harold was four years old.

that, from his birth through March 6, 2001, his mother took good

Harold's father was served by publication and failed to file any objection. Therefore, he was deemed to have consented to the termination of parental rights. Harold's father is not a party to these proceedings.

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care of Harold and was a fit parent. On March 6, 2001, Ms. A. suffered a severe stroke, possibly arising from injuries she sustained in a 1999 car accident. After

the stroke occurred, Ms. A. was hospitalized, suffered serious complications, and almost died several times. On October 9, 2001,

Ms. A. left the hospital and entered Heartland Homes Healthcare facility ("Heartland"), which is a nursing home. As a result of

the stroke, Ms. A. suffered damage to the right hemisphere of her brain. When Harold's mother was hospitalized by this stroke, he was initially cared for by Ms. A.'s brother in California. Then Harold went to live Maryland. with family friends in Prince George's County,

On March 25, 2002, these friends brought Harold to the

Prince George's County Department of Social Services ("DSS"), requesting that he be placed in foster care. DSS worked for a period of time to reunify Harold with his biological father, Mr.H. To do this, DSS arranged visits between This did not

Harold and his father in Maryland and North Carolina.

work out, however, and Mr. H. was "greatly relieved" when DSS suggested that he give up his parental rights or allow Harold to be adopted. Harold was never especially happy to be with his father,

and has no particular attachment to him. Harold's first foster mother, Ms. W., took care of him until July 2005. Harold still has a positive relationship with Ms. W.,

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whom he calls "grandma." DSS was worried about the long term possibility of Ms. W. caring for Harold, as she is elderly and has no willing or able family members to care for Harold if she becomes unable to do so. Therefore, in July 2005, DSS arranged for Harold to be

transferred to another foster home, and he was placed with a new foster mother, Ms. McC. Ms. McC. is a schoolteacher, and Harold Ms. McC. facilitates contact with

has done well in her care.

Harold, his mother, and his half-sister, and she is willing to allow continued contact with his family and accommodate his

potential future adoption by one of them.

Currently, Harold

receives weekly therapy, as arranged by DSS, to allow him to cope with the changes in his life. Harold has adjusted well in school, Harold has

is a "B" student, and has no behavioral problems.

bonded with his current foster family, and he refers to Ms. McC. as "Mom." Harold also gets along well with Ms. McC.'s adopted son, Andre, who is Harold's age. Harold has a brother-like relationship with Andre, and they play video games, basketball, and complete their homework together. Ms. A. remains in residence at the Heartland nursing home. Dr. James Lewis, a clinical psychologist and neuropsychologist, performed a court-ordered neuropsychological evaluation of Ms. A. in July 2004, and has reviewed Heartland's records about her condition since that evaluation. Dr. Lewis testified that Ms. A.'s

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medical records show that she suffered from a right-hemisphere hemorrhagic stroke. Dr. Lewis stated that a hemorrhagic stroke

causes the greatest morbidity, which means long term permanent deficit. Ms. A.'s left-brain IQ measured 83, which is at the

bottom of the low average range, and her right brain IQ measured 65, which is in the mentally retarded range. She tested in the

"severely brain impaired range" on skills concerning "thinking, planning, judgment, reasoning, awareness of oneself and others." Dr. Lewis testified that there is no reason to expect major recovery of function. Moreover, he stated that he sees the most

improvement in patients like Ms. A. in the first six to twelve months after the stroke. According to Dr. Lewis, "sudden

spontaneous recovery of function from her stroke that did not occur in the first five years . . . does not happen." Ms. A. also suffers from dementia, and has an inability to grasp the severity, nature, and extent of her medical problems. For instance, she shows unawareness that she has suffered a stroke. Further evidence of Ms. A.'s dementia is seen through her actions at the nursing home. She has been observed carrying her own feces She also asks for

in a container, without being aware of it. medication that she has already taken.

Since Dr. Lewis evaluated Ms. A. in 2004, her condition has worsened, as she now shows "more disorientation, more confusion," and now requires assistance with maintaining her bowel and bladder

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control.

Although she does not need assistance with her eating or

bathing, she needs "prompts and cues" to reorient her to her surroundings as she moves through different areas of the nursing home. Ms. A.'s social worker designee at the nursing home

testified that she believes the best condition Ms. A. can expect to attain is "assisted living" status, which would still require 24hour supervision. The Department of Social Services social worker testified that Ms. A. cannot make independent decisions for herself, and

therefore, could not be expected to make decisions for Harold. The social worker designee for Ms. A. at Heartland confirmed that Harold's mother has no financial decisions to manage, as Maryland Medicaid is paying for her nursing home care. Ms. A. is capable of conversing with others, and testified in this case. Her testimony, however, revealed some of her confusion. At the trial, she said Harold was 9, when he was actually 11. She

testified that she "[had] no idea" why she came to the nursing home, and had "no idea why I'm there." She said she had resided in the Heartland facility since 1999 (immediately after her car accident), when it was actually 2001. Ms. A. stated that she does not want the court to terminate her parental rights because she believes she can take care of Harold. Although she has not driven since 2001, she testified that she can drive Harold to school. She also said she could help him

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with homework, cook for him, and make sure he sees the doctor. She admitted that she cannot have Harold live with her at the nursing home, but could not explain how she could take care of Harold while she lives at Heartland. Ms. A. testified that "I love [Harold] with my whole heart." Harold loves his mother also, and continues to visit her in the nursing home periodically. clear from the record. LEGAL PROCEEDINGS After a shelter hearing, a master declared Harold a child in need of assistance on April 23, 2002. this decision on May 15, 2002. The circuit court ratified The frequency of the visits is not

After an unsuccessful effort to

terminate the rights of Harold's parents in 2004, DSS re-instituted proceedings to terminate parental rights in 2006.2 There was a hearing held on March 1 and 2, 2006 in the Circuit Court for Prince George's County. Harold H.'s father was

notified by publication, but filed no objection, and he did not appear at the hearing. The attorney representing Harold agreed

with DSS that Ms. A. has a disability, and her parental rights should be terminated. On March 2, 2006, the circuit court granted

DSS's petition to terminate the parental rights of Mr. H. and Ms.

The circuit court denied the petition in May 2004 without prejudice, finding there was insufficient medical evidence regarding Ms. A.'s future prognosis. Dr. Lewis's evaluations had not taken place at this time. 6

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A.

Ms. A. then filed this appeal, in which she asks the following

question: Did the trial court err in finding that Appellant had a disability and in using this erroneous finding to justify termination of her parental rights? STANDARD OF REVIEW In termination of parental rights cases, the standard of review is "whether the trial court, in making its determination, abused its discretion or made findings of fact that were clearly erroneous." In Re Adoption/Guardianship No. 3598, 347 Md. 295, 311 (1997). In such cases, "the greatest respect must be accorded [to] the opportunity the [trial court] had to see and hear the witnesses and to observe their No. appearance J970013, and 128 demeanor." Md. the App. 242, In re

Adoption/Guardianship (1999)(citation

247-248 court's

omitted).

Therefore,

circuit

determination is given great deference, unless it is arbitrary or clearly wrong. Id. at 248. DISCUSSION Md. Code (1984, 2004 Repl. Vol.), section 5-313(a) of the Family Law Article (FL)3 authorizes a court to grant a decree of guardianship under certain circumstances, without a natural

The statutory section providing the criteria for a termination of parental rights was recodified effective January 1, 2006. Because this case commenced before January 1, 2006, and the recodified statute has only prospective effect, the pre-2006 section 5-313 is the controlling statute for this appeal. 7

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parent's consent, "if the court finds by clear and convincing evidence that it is in the best interest of the child to terminate the natural parent's rights as to the child." One of these

circumstances is when, "in a prior juvenile proceeding, a child has been adjudicated to be a child in need of assistance." FL

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