ANNAPOLIS – The District Court of Montgomery County was wrong to declare a child the ward of the court in 1994 when the father was able and willing to give proper care, the Maryland Court of Special Appeals ruled Wednesday.
This was the first time the court has written that both parents have to be unable or unwilling to provide proper care in order for a child to be declared in need of assistance, said Assistant Attorney General Shelly E. Mintz, who represented the Montgomery County Department of Social Services.
The case of the child referred to only as “Russell G.” hinged on the fact that the relevant Maryland statute refers to “parents” in the plural.
The three-judge appellate panel was unanimous in its ruling.
The child was taken from the mother after employees at her apartment complex reported possible abuse and neglect to the social services department. The mother was a recovering alcoholic who until then had sole legal custody of the child, according to court documents.
In its 1994 decision to declare the child in need of assistance, the district court said, “She was drunk with the child, drunk without the child, combative, explosive, drinking in the car with the child, drinking in the car without the child.”
The lower court ruled that the father was unable or unwilling to care for the child because he “turned his back on the mother’s obvious alcoholism and inability to care for” the boy and because he did not have legal custody.
However, the father was permitted to maintain physical custody of his son, subject to the supervision of the Department of Social Services, court documents show.
The mother appealed, arguing that she is in recovery. She asked either that her child be returned to her custody or that a new hearing be held.
The father said in his appellate brief that he had understood and agreed with the custody arrangement ordered by the District Court. The social services supervision was necessary since, given his past history, “there was no evidence to demonstrate” that he would be able to protect his child from neglect in the future, his lawyer argued.
But the Court of Special Appeals said there was no evidence to support the lower court’s finding that the father had ignored or disregarded the mother’s alcoholism.
Rather, the court said, when the father became aware of problems, “he took appropriate steps to protect the welfare of the child,” including helping pay for the mother’s alcohol treatment and contacting social services when he was concerned about her drinking.
The court also ruled that there was no legal reason that lack of legal custody prevented the father from caring for the child. Carrie Ward, who represented the father, declined to comment given that she had not read the ruling. Lawyers for the mother and the child could not be reached for comment. -30-