In Re Cager , 251 Md. 473 ( 1968 )

Hammond, C. J.,

delivered the opinion of the Court. Barnes, J., dissented and filed a dissenting opinion. (See p. 486 infra.)

The Circuit Court for Prince George’s County, proceeding under Code (1966 Repl. Vol.), Art. 26, §§ 51 through 71, “Juvenile Causes,” and particularly § 52 (f) “Neglected child,” ¹ found various young illegitimate infants to be living in an unstable moral environment and therefore neglected, solely because each infant lived in a home with the mother and at least one illegitimate sibling, and ordered the infants to be taken from their mothers and placed in foster homes. The appeals are by the guardian ad litem of the infants and the three mothers. Planned Parenthood Federation of America, Inc., Planned Parenthood Association of Maryland, Inc., Planned Parenthood of Metropolitan Washington, D. C., Inc. and the Washington Chapter of the Medical Committee for Human Rights filed briefs as amici curiae.

In his opinion Judge Bowen said the three cases :

“are test cases designed to determine whether * * * the State law furnishes a vehicle to assist in the control of the problem of illegitimacy, its mounting costs to the taxpayers, and its mounting costs in human misery and suffering. * * * If the statute * * * is valid * * * we think the State’s Attorney’s office will proceed with its use in those cases where it applies. * * * As the Court sees it, these cases come before it on * * * the minimum of evidence * * *. [0]ther evidence could be brought before the Court of the surroundings in these homes, of the disposition of the parents, of the condition of the children, and a great many other things * * *. [T]he charge * * * is supported substantially only by the stipulation of facts.² Other evidence can be gleaned perhaps from the birth certificates and from the report which was submitted, but we do not consider that, we consider the case on these facts: * * * these women have conducted themselves in such a way that they have brought into the world more than one illegitimate child, that these children are now living together with their mother under the same roof, or in the same group unit * * *. [T]he question to be decided is whether or not on that set of minimum facts, the Court can find that they are neglected within the meaning of the Maryland law * * *. [A] re these children living in an unstable moral environment.

* * *

“Most first illegitimate children * * * are the result of a mistake * * *. The second time around we think represents a lack of judgment and demonstrates an unstable moral attitude on the part of the mother * * * that is inconsistent with the minimum moral standard the community requires.

“We have no difficulty concluding that the words unstable moral environment relate or were intended to apply to a situation where a mother has had a series of illegitimate children such as tire mothers had in these cases. And that such a series * * * constitutes on the part of the mother neglect of each of the children involved [within the meaning of the statute].”

We think that Judge Bowen’s conclusion that an illegitimate child can judicially be found to be neglected because of the sole fact that he lives with a mother who has had another illegitimate child who also lives with her is erroneous.

The purposes of § 52 (f) of Art. 26 of the Code, as revealed by its legislatively prescribed standards, must be considered in determining as a fact whether a child is neglected. The statute asks whether the person with whom the child lives “by reason of cruelty, mental incapacity, immorality or depravity, is unfit to care properly for such a child.” It is concerned with whether the child is under unlawful or improper care, supervision or restraint by any person or entity. Does the child’s parent or custodian fail to provide necessary medical care; are the health and morals of the child endangered by his custody, environment or occupation, and finally, does the child live in a home “which fails to provide a stable moral environment.” In determining whether a child is neglected because he lives in an unstable moral environment, the court shall consider, among other things, whether the person with whom the child lives:

“(i) Is unable to provide such environment by reasons of immaturity, or emotional, mental or physical disability ;

(ii) Is engaging in promiscuous conduct inside or outside the home;

(iii) Is cohabiting with a person to whom he or she is not married;

(iv) Is pregnant with an illegitimate child; or

(v) Has, within a period of twelve months preceding the filing of the petition alleging the child to be neglected, either been pregnant with or given birth to another child to whose putative father she was not legally married at the time of conception, or has not thereafter married.”

The basis for determining neglect must be broader than that on which Judge Bowen rested his determination. Being pregnant with an illegitimate child or having given birth to an illegitimate child within twelve months of the filing of the petition alleging the child to be neglected are two factors to be considered under the statute, “among other things,” as indicating neglect but they cannot alone and automatically be found to be indicators of that fact. The “other things” the court is directed to consider in determining whether there is or is not a stable moral environment must include the factors previously enumerated in § 52 (f), pertinent to the particular case. Furthermore, that section does not make explicit as a test of neglect the fact that twro illegitimate children of a mother live with her and we do not find such a test reasonably or fairly implicit-in the statute as a sole determinant.

It is clear that the ultimate consideration in finding neglect which will serve as a basis for removing a child from its mother’s custody is the best interest of the child. As we said in discussing the provisions, of Art. 26, Subtitle “Juvenile Causes,” regarding juvenile delinquents in Ex Parte Cromwell, 232 Md. 305, 308:

“It is clear that the statute is aimed at the protection and rehabilitation of the child, not its punishment * * *. The power exercised by the State is that of parens patriae * * *. The fact that parents may be deprived of the custody of their own children presents no constitutional .problem.”

The best interest of a child may or may not be served by removing it from the custody of a mother who has had another illegitimate child but the sole test, automatically applied, cannot in fact or law be pregnancy with an illegitimate child or the recent birth of an illegitimate child added to the presence of an existing illegitimate offspring. Cf. Levy v. Louisiana, 391 U. S. 68, 20 L.Ed.2d 436. It is equally clear that although a State is permitted to remove a child from a home that has been judicially determined to be so unsuitable as to be contrary to the welfare of the child and to terminate AFDC assistance to a child living in an unsuitable home if it provides other adequate care and assistance for the child, a State may not deny AFDC assistance to dependent children “on the basis of their mother’s alleged immorality or to discourage illegitimate births.” King v. Smith, 392 U. S. 309, 324, 20 L.Ed.2d 1118, 1129-1130. The cases presently before us would seem to have been instituted not to serve and perpetuate the best interests of the children but rather impermissibly to use the children as pawns in a plan to punish their mothers for their past promiscuity and to discourage them and other females of like weaknesses and inclinations from future productivity.

The brief of the guardian ad litem argues that § 52 (f) as interpreted by the court below and as applied is invalid under the equal protection clause of the Fourteenth Amendment because it invidiously and purposefully discriminates against the poor who apply for public assistance. The interpretation we give the statute and the limitations of confidentiality we hereinafter find the applicable statutes to impose on State officials will answer these arguments.

The brief of the mothers contends that § 52 (f) of Art. 26 is unconstitutionally vague. As we read that section, the standards prescribed by the legislature to determine the presence of neglect are sufficiently precise and definite. Although the judicial determination of neglect is civil in nature, the application of the test of sufficient explicitness needed for a criminal statute shows, we think, that a person of ordinary intelligence could determine from § 52 (f) with a fair degree of precision whether a child was or was not neglected, McGowan v. State, 220 Md. 117, 125; McGowan v. Maryland, 366 U. S. 420, 428, 6 L.Ed.2d 393, 400; Richards Furniture Corp. v. Board of County Comm’rs of Anne Arundel County, 233 Md. 249; Director of Patuxent Institution v. Daniels, 243 Md. 16, cert. denied, 385 U. S. 940, and this is enough to defeat the claim of unconstitutional vagueness.

The mothers also contend that the neglect statute is unconstitutional because it does not apply to Montgomery County which has its own, slightly different, juvenile statute. The contention is answered by McGowan v. Maryland, supra, which upheld the Sunday Blue Raws which varied from County to County in Maryland against attack as unconstitutional for that reason.

It would appear from the record that the State’s Attorney of Prince George’s County was a prime movant in the apparent campaign or crusade to discourage promiscuity and illegitimacy. His goal may have been laudable but his road toward that goal is attacked by the appellants, justifiably we think, as violative of federal and state requirements of confidentiality in that he used information he gleaned from certain forms the mothers were required to present to him for purposes for which it was not intended to and cannot lawfully be used.

The Welfare laws and regulations required each mother to present in person to the States’ Attorney a filled out form 218, “Support of Dependent Child, Notification of Dependency and Request for Report of Action,” as a prerequisite to obtaining aid for dependent children. Each applicant enters her name and the name and ages of her children, and information concerning the father. The information revealed by the form is intended only to enable the State’s Attorney to obtain information about a non-supporting father so that he may either obtain a warrant for the father’s arrest or to institute paternity proceedings. In the cases before us, the forms revealed to the State’s Attorney that the names of the children and the fathers did not match, and their use for this purpose led to the investigations which preceded the cases. Title 42 U. S. C. A. § 602 (a) (11) requires that law enforcement officials be notified of aid furnished children who have been deserted or abandoned. Section 602 (a) (9) requires each State to “provide safeguards which restrict the use or disclosure of information concerning applicants and recipients to purposes directly connected with the administration of aid to families with dependent children.” A regulation of the United States Department of Health, Education and Welfare states that:

“The provisions of the Social Security Act, regarding the confidential character of public assistance information have as their objective the protection of applicants and recipients from exploitation and embarrassment.”

By means of Art. 88A, § 5, of the Code and regulations promulgated thereunder, Maryland has complied with the federal requirements. Section 5 requires the State Board of Public Welfare to adopt rules and regulations having “the force and effect of law” governing the use of “records, papers, files and communication of the State and local departments concerning applicants and recipients of assistance.” The section further provides that the use of such material “by any other agency or department of government to which they may be furnished shall be limited to the purposes for which they are furnished” [emphasis added].

The State Department of Public Welfare issued Rule 1000, Confidential Nature of Records, in compliance with the legislature’s directive. This rule explains the importance of confidentiality, emphasizing that information in the records may be used only by persons with appropriate authority, and only for purposes directly connected with the administration of welfare programs.

The Department states under Part I (2), General Principles and Guides:

“The protection of the rights of individuals served by the public welfare department requires that they be safeguarded against identification as a special group and against exploitation for commercial, personal or political reasons.”

Departmental regulations do provide for certain situations under which such records may be used. Part IV, Basis for Use of Information Outside the Department, sets forth three circumstances under which information may be disclosed without the consent of the client:

a. Upon proper judicial order when the purpose is directly connected with the administration of the agency’s program * * *.

b. Upon proper legislative order when the purpose is directly connected with the administration of the Department’s program.

c. To an officer of the United States, of the state, of the county, or another state, who has a right thereto in his official capacity when the purpose is directly connected with the administration of the Department’s program.

We believe this listing to be exclusive in nature.

The use of Form 218 to provide information leading to a neglect proceeding is clearly not sanctioned. The federal and state statutory and administrative provisions all provide that such information is not to be used for purposes extraneous to the AFDC program. The children’s eligibility for AFDC is not statutorily designed to be affected by a determination of neglect.

Undoubtedly, a State’s Attorney is to be furnished Form 218 for the purpose of proceeding against absent fathers, but the State’s Attorney’s right is limited to the use of the form for this purpose. Cf. Mace v. Jung (Alas.), 386 P.2d 579; see Terrell v. City of New York (S. Ct. King’s County), reported in NYL.J. (Jan. 29, 1968), p. 19, col. 3. Compare State ex rel Haughland v. Smythe (Wash.), 169 P. 2d 706, 165 A.L.R. 1295; Bell v. Bankers Life & Casualty Co. (App. Ct. Ind.), 64 N.E.2d 204.

The mothers urge upon us that to deny them the status of parties to the case—as the lower court did, although he heard them as amici through their counsel—violated their rights under both the State and Federal Constitutions and that had they been made parties defendant, as they should have been, they were entitled to court appointed counsel and the payment of costs and expenses at both the trial and appellate level. Their contentions go too far, in our opinion.

Juvenile Court proceedings were not intended to and, constitutionally, need not be conducted under the usual rules governing court trials or even administrative hearings as long as a standard of fairness is recognized and adhered to. Code (1966 Repl. Vol.), Art. 26, §§ 60, 64; In Matter of Cromwell, 232 Md. 409, 415. In In re Gault, 387 U. S. 1, 30-31, 18 L.Ed.2d 527, the Supreme Court quoted with approval the rule applied to waivers of juvenile jurisdiction in Kent v. United States, 383 U. S. 541, 16 L.Ed.2d 84, holding that it applied as well to hearings on delinquency of minors :

“We do not mean * * * to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.” [387 U. S. at 30]

We think the hearings below fully met the required standards of fairness. The infants involved were represented by a guardian ad litem who is a practicing lawyer who energetically and competently sought to forward their interests. The mothers were given full notice of the actions the State’s Attorney took and the ends he sought and were given full opportunity to be heard by the court. We find no basis for holding that the mothers were entitled as a matter of right either to be furnished counsel at public expense or given their expenses in connection with the trial or the appeal. In In re Gault, supra, the Supreme Court, in dealing with judicial determination of delinquency which could lead to removal of the child from his mother’s custody and his incarceration for years in a correctional home, said :

“We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.” [Emphasis added] [387 U. S. at 41]

We think that no more is required in respect of proceedings to determine neglect, with the qualifications first that only such proceedings which are or will become contested need there be appointed to represent the child a guardian ad litem who is a lawyer or a lawyer to represent a guardian who is not a lawyer and, second, that if the representative of the child will not appeal a ruling adverse to the child and the mother wishes to appeal such a ruling, she should be made a party so that she can appeal to represent the child’s interest under the provisions of § 65 of Art. 26 that “any interested party aggrieved by any order or decree of the judge may appeal therefrom to the Court of Appeals.” Compare In re Cruse (Ct. App. La.), 203 So. 2d 893; Watson v. Department of Public Welfare (App. Ct. Ind.), 165 N.E.2d 770.

Prince George’s County paid the expenses and costs below, including remuneration to the infants’ guardian ad litem, but would not pay or agree to pay such expenses and costs on appeal. Section 68 of Art. 26 provides that if the parent or custodian of any child coming before the court “under the provisions of this subtitle [§§ 51 through 71 of Art. 26]” is able to pay the costs of the proceedings against the child and it is proper that he do so, the court may order that he do so, and continues: “except as otherwise provided, all costs incurred by the prosecution of cases under this subtitle shall be paid by the county commissioners” (all emphasis added). We think that “all costs” includes the costs of an appeal pursuant to § 65 of Art. 26, one of the provisions of “this subtitle.” The County Commissioners of Prince George’s County should therefore pay the costs on appeal, other than the costs attributable to the participation of the mothers and the amici, including suitable reasonable remuneration to the guardian ad litem for the children. See Chambers v. District Court of Dubuque County (Iowa), 152 N.W.2d 818; Hernandez v. Hardy (Tex. Ct. Civ. App.), 426 S.W.2d 258; In re Karren (Minn.), 159 N.W.2d 402. Cf. Alexander v. Superintendent, 246 Md. 334, 339.

Orders reversed, costs of the infants and of the state to be paid by the County Commissioners of Prince George’s County.

1 . Section 52 (f) defines a “neglected child” as a child: “(1) who is without proper guardianship; (2) whose parent, guardian or person with whom the child lives, by reason of cruelty, mental incapacity, immorality or depravity, is unfit to care properly for such a child; (3) who is under unlawful or improper care, supervision, custody or restraint, by any person, corporation, agency, association, institution or other organization or who is unlawfully kept out of school; (4) whose parent, guardian or custodian neglects or refuses, when able to do so, to provide necessary medical, surgical, institutional or hospital care for such child; (5) who is in such condition of want or suffering, or is under such improper guardianship or control, or is engaged in such occupation as to injure or endanger the morals or health of himself or others; or (6) who is living in a home which fails to provide a stable moral environment.”

2 . The stipulation was that the appellant Jackson has had three children born out of wedlock; appellant Cager has had four, and appellant Patterson has had three, that all the children are alive and that, with one exception, all of the children born to a given mother are residing with that mother.

In his closing remarks the State’s Attorney went beyond the stipulation by giving information as to the ages of the mothers'— two were in their teens—of the children, the names of the fathers, which in each instance save one were different, and that their occupations and whereabouts were unknown, and that each mother had had an illegitimate child within the last twelve months.