In Re Adoption/Guardianship Nos. J9610436 & J9711031 , 368 Md. 666 ( 2002 )

CATHELL, Judge.

Prior to a termination of parental rights, the parent and perhaps the child have fundamental federal and state constitutional rights to the maintenance of the parent/child relationship. This relationship, absent constitutional amendments, cannot be unreasonably abrogated by federal or state statutes, federal or state regulations, administrative practices, by the need to qualify for federal or state funds, or by the “safer course doctrine.” These rights are the same where parents or children are alleged to be disabled. Under our Constitutions, the poor and the disabled are no less citizens entitled to the full range of constitutional protections. The Constitutions apply in the social welfare area as fully as in any other area of American life. There is a strong presumption in matters relating to termination of parental rights cases, that the “best interests” of a child, generally, are met by not terminating the parental rights of natural parents. In termination of parental rights cases, it is this presumption that most insures the proper deference to a parent’s fundamental and constitutional right to parent. It is from this perspective that we commence our review of this case.

I. Parenting as a Fundamental Right

Certain fundamental rights are protected under the Constitutions. Among those rights is the right to child rearing, i.e., parenting. Supreme Court case law has consistently reaffirmed parental rights.

We recently stated in Boswell v. Boswell, 352 Md. 204, 217-20, 721 A.2d 662, 668-69 (1998), that:

“A parent has a fundamental right to the care and custody of his or her child. The United States Supreme Court has upheld the rights of parents regarding the care, custody, and management of their children in several contexts, including child rearing, education, and religion. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (overturning a mandatory schooling law in the face of Amish claims of parental authority and religious liberty); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (discussing the right of parents to raise their children); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, 652 (1944) (observing that ‘the custody, care, and nurture of the child reside first in the parents’); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942) (stating the right to rear a child is encompassed within a parent’s ‘basic civil rights’).... The Supreme Court’s long history of affording protection to parents in the realm of child rearing and family life was acknowledged in Wolinski v. Browneller, 115 Md.App. 285, 299, 693 A.2d 30, 36-37 (1997):

‘A parent’s Fourteenth Amendment liberty interest in raising his or her children as she sees fit, without undue interference by the State, has long been a facet of that private realm of family affairs over which the Supreme Court has draped a cloak of constitutional protection.’

In accordance with the Supreme Court, Maryland has declared that a parent’s interest in raising a child is a fundamental right that cannot be taken away unless clearly justified.

... [T]his Court has held that the best interests of the child may take precedence over the parent’s liberty interest in the course of a custody, visitation, or adoption dispute .... The best interest standard does not ignore the interests of the parents and their importance to the child. We recognize that in almost all cases, it is in the best interests of the child to have reasonable maximum opportunity to develop a close and loving relationship with each parent.” [Some citations omitted.]

See Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); see also Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905).

Most, recently, in In re Mark M., 365 Md. 687, 705, 782 A.2d 332, 342-43 (2001), this Court reiterated the notion of parenting as a fundamental right:

“A parent’s interest in raising a child is, no doubt, a fundamental right, recognized by the United States Supreme Court and this Court. The United States Supreme Court has long avowed the basic civil right encompassed by child rearing and family life. See Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 57 (2000) (stating that ‘the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children’); See also Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606 (1982) (discussing ‘the fundamental liberty interest of natural parents in the care, custody, and management of their child’); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551, 558-59 (1972) (stating that ‘[t]he rights to conceive and to raise one’s children have been deemed “essential,” ’ and that ‘[t]he integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment ... the Equal Protection Clause of the Fourteenth Amendment ... and the Ninth Amendment ...” (internal citations omitted)). Maryland, too, has declared a parent’s interest in raising a child to be so fundamental that it ‘cannot be taken away unless clearly justified.’ Boswell v. Boswell, 352 Md. 204, 218, 721 A.2d 662, 669 (1998) (citing In re Adoption No. 10941, 335 Md. 99, 112, 642 A.2d 201 (1994)).”

In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Supreme Court of the United States reaffirmed the rights of parents when there are allegations of neglect and they are involved in a proceeding to terminate their parental rights. Prior to Santosky, some states had terminated parental rights based upon a minimal standard of a “fair preponderance of the evidence.” In Santosky, the Supreme Court held that, “the ‘fair preponderance of the evidence’ standard ... violates the Due Process Clause of the Fourteenth Amendment.” Id. at 768, 102 S.Ct. at 1402, 71 L.Ed.2d at 616. The Court concluded that in order to terminate a parent-child relationship, a “clear and convincing evidence” standard of proof was needed. Before the Court addressed the propér standard to use in termination proceedings, it again recognized the weight given to parental rights:

“The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.”

Id. at 753, 102 S.Ct. at 1394-95, 71 L.Ed.2d at 606 (emphasis added).

The applicable State laws, in order to meet the requirements of the Federal Constitution and Article 24 of the Maryland Declaration of Rights, contain certain protections for parents. First, Maryland law presumes that reunification with the natural parent is in the child’s “best interest.” Additionally, Maryland’s law requires that the court must consider the nature and extent of services offered by the child placement agency to facilitate reunion of the child with the natural parent prior to a termination of parental rights. Specifically, Maryland Code (1984, 1999 Repl.Vol.), section 5-313 of the Family Law Article, the section at issue in this case, bolsters Maryland’s already stringent statutory standards that must be satisfied before termination of parental rights can occur.

Not only have Maryland courts long recognized this notion of the fundamental right to rear a child, but the courts have emphasized that this fundamental right may not be terminated unless clearly justified. In In re Adoption/Guardianship No. 10941, 335 Md. 99, 105, 642 A.2d 201, 204 (1994), we noted: “Maryland receives considerable federal funds pursuant to this [federal] Act.¹ Accordingly, the Maryland General Assembly has enacted legislation to comply with the federal requirements.” “One of the most important purposes of this law was to eliminate foster care drift by requiring states to adopt statutes to facilitate permanent placement for children as a condition to receiving federal funding for their foster care and adoption assistance programs.” Id. at 104, 642 A.2d at 204. Nonetheless, we held that: “First and foremost, the department must consider returning the child to the child’s natural parents or guardians.” Id. at 105, 642 A.2d at 204-05.

Kathleen A. Bailie, The Other “Neglected” Parties in Child Protection Proceedings: the Parents in Poverty and the Role of the Lawyers Who Represent Them, 66 Fordham L.Rev. 2285, 2293-2331 (May, 1998) notes problems with the application by local agencies of the Act’s provisions:

“[T]he [Adoption and Safe Families Act of 1997(ASF) ], which shortens the time that families have to work toward reunification and speeds up the termination of parental rights and adoption processes, was passed largely in reaction to the most terrible cases of child abuse² in our nation. While concern for the safety and well-being of the nation’s children is a laudable goal, the ASF may actually harm some children in the process: Because this new piece of federal legislation mainly contemplates cases of severe child abuse and maltreatment, poor families who are in the child welfare system because of suspected neglect may soon be ignored.

Cases that involve poverty as neglect are perhaps the most compelling candidates for family preservation and reunification services. Unfortunately, poverty is also a deeply-rooted problem and, thus, one that cannot be alleviated quickly. As such, the ASF’s new time lines for child protective cases may actually work to tear apart families who would otherwise have succeeded in rebuilding their lives.

Finally, charges of neglect effectively render poor parents powerless. The strain of having one’s children taken away is extremely distressing for parents in poverty, who are often undereducated and unworldly. This stressful situation weakens parents and, therefore, further exacerbates the imbalance of power that already favors the state in child protection proceedings. The state is clearly in control in neglect proceedings, for not only does it present the case to the court, but its ‘adversary,’ the parent, is unfamiliar with the intricacies of the legal proceedings. As such, parents are often unable to effectively assert their rights.

The newest piece of federal legislation affecting the child welfare system — The Adoption and Safe Families Act of 1997 — may continue to disserve poor and needy families. Intended to make children’s health and safety the primary focus of child protective proceedings, the ASF forces child welfare officials to give up on parents sooner than before. Because indigent parents may have difficulty correcting their families’ situations with the speed with which the federal government now requires, the ASF may actually work to hurt children by dissolving loving, salvageable families.” [Alterations in original.] [Endnotes omitted.]

Additionally, although we need not decide its applicability in the present case, Congress has also recognized that the rights of the disabled are no less protected. The Americans With Disabilities Act is an expression of federal public policy in all areas.³ Chris Watkins, Beyond Status: The Americans with Disabilities Act and the Parental Rights of People Labeled Developmentally Disabled or Mentally Retarded, 82 Cal.L.Rev. 1415, 1469 (1995), notes:

“Title II essentially protects all qualified individuals with a disability from discrimination in the programs and activities of all public entities, including state legislatures and courts.

There is nothing in the regulatory language to suggest that this directive should not apply to legislatures enacting laws, or to judges making decisions about parental rights.”

Accordingly, when attempting to comply with the Adoption and Safe Families Act of 1997, agencies and the courts, must, at the least, recognize that Congress has also expressed a concern that extra steps be taken to insure that the disabled are not subject to discrimination, however inadvertent it may be in a given case.

Due to the importance and role of the federal and state statutes generally and in this case specifically, and because it is also within the context of the federal Adoption Assistance and Child Welfare Act of 1980 and Title 5 of the Maryland Family Law Article that we address the case sub judice, we include a portion of In re: Adoption/Guardianship No. 10941, 335 Md. 99, 103-06, 642 A.2d 201, 203-05 (1994). Judge Karwacki, writing for the Court, comprehensively addressed the state and federal statutory scheme relating to child adoption, which can lead, as it did here, to the potential termination of parental rights. Judge Karwacki stated:

“The Maryland General Assembly has enacted a comprehensive statutory scheme to address those situations where a child is at risk because of his or her parents’ inability or unwillingness to care for him or her. Title 5 of the Family Law Article of the Maryland Code (1984, 1991 RepLVol.) (hereinafter ‘F.L.’) governs the custody, guardianship, adoption and general protection of children who because of abuse or neglect⁴ come within the purview of the Department of Human Resources....

During the 1970’s, nationwide concern grew regarding the large number of children who remained out of the homes of their biological parents throughout their childhood, frequently moved from one foster care situation to another, thereby reaching majority without belonging to a permanent family. This phenomenon became known as ‘foster care drift’ and resulted in the enactment by Congress of Public Law 96-272, the ‘Adoption Assistance and Child Welfare Act of 1980,’ codified at 42 U.S.C. §§ 610-679 (1998). One of the importance purposes of this law was to eliminate foster care drift by requiring states to adopt statutes to facilitate permanent placement for children as a condition to receiving federal funding for their foster care and adoption assistance programs.

Under the federal act, a state is required, among other things, to provide a written case plan for each child for whom the state claims federal foster care maintenance payments. 42 U.S.C. § 671(a)(16). The case plan must include a description of the home or institution into which the child is placed, a discussion of the appropriateness of the placement, and a description of the services provided to the parents, child and foster parents to facilitate return of the child to his or her own home or to establish another permanent placement for the child. 42 U.S.C. § 675(1). The state must also implement a case review system that provides for administrative review of the case plan at least every six months and judicial review no later than eighteen months after placement and periodically thereafter. 42 U.S.C. § 675(5)(B) and (C). The purpose of the judicial review is to ‘determine the future status of the child’ including whether the child should be returned to its biological parents, continued in foster care for a specified period, placed for adoption, or because of the child’s special needs or circumstances, continued in foster care on a long term basis. 42 U.S.C. § 675(5)(C).

Maryland receives considerable federal funds pursuant to this Act. Accordingly, the Maryland General Assembly has enacted legislation to comply with the federal requirements. Under Maryland’s statutory scheme, for those children committed to a local department of social services the department is required to develop and implement a permanency plan that is in the best interest of the child. F.L. § 5-525.

In developing the permanency plan, the department is required to consider a statutory hierarchy of placement options in descending order of priority. F.L. § 5-525(c). First and foremost, the department must consider returning the child to the child’s natural parents or guardians. If reunification with the biological parents is not possible, the department must consider placing the child with relatives to whom adoption, guardianship, or care or custody, in descending order of priority, are planned to be granted. If placement with relatives is not possible, then the department must consider adoption by a current foster parent or other approved adoptive family....

... If the circuit court finds by clear and convincing evidence, after considering the statutorily enumerated factors, that it is in the best interest of a child previously adjudicated a CINA for parental rights to be terminated, the circuit court has authority to grant the department’s petition for guardianship. Such award carries with it the right for the department to consent to the adoption of the child. F.L. §§ 5-311 and 5-317(1).

The overriding theme of both the federal and state legislation is that a child should have permanency in his or her life.... Thus, Title 5 of the Family Law Article seeks to prevent the need for removal of a child from its home, to return a child to its home when possible, and where returning home is not possible, to place the child in another permanent placement that has legal status.” [Some citations omitted.]

We now turn to the facts of the case sub judice.

II. Procedural History

On July 10, 1997, the Carroll County Department of Social Services (CCDSS) filed a Petition for Guardianship with the Right to Consent to Adoption or Long-Term Care Short of Adoption of Mr. F.’s (petitioner) minor children, Tristynn D. (Tristynn) and Edward F. (Edward), and for the termination of petitioner’s parental rights as to the minor children. The children’s natural mother, Ms. H., consented to the termination of her parental rights as to both children prior to the filing of the petition. The termination of parental rights (TPR) hearing began on June 23, 1998 and took a total of five days over the course of more than a year.⁵ On August 22, 2000, following the conclusion of the hearings, the Circuit Court for Carroll County issued a Memorandum and Order terminating petitioner’s parental rights and granting CCDSS guardianship of the minor children with the right to consent to adoption and/or long-term care short of adoption. Petitioner noted a timely appeal to the Court of Special Appeals from that Order. In an unreported opinion, the Court of Special Appeals affirmed the trial court’s judgment.⁶

On June 11, 2001, petitioner filed a Petition for Certiorari and the Public Justice Center filed a Petition and Memorandum in Support thereof and asked to participate as amici curiae. We granted both petitions on August 15, 2001. Petitioner presents, in his brief to this Court, the propriety of the trial court’s termination of his parental rights. For the reasons stated herein, we reverse the orders of the trial court and intermediate appellate court that terminated petitioner’s parental rights.

III. Statement of Facts

The oldest of the two sons, Tristynn, was born on June 18, 1995 to petitioner and Ms. H. who were never married and their relationship at the time of the births of both children was apparently volatile. Petitioner testified that he has permanently terminated his relationship with Ms. H. and avoids contact with her. There was no evidence in the record to the contrary. Mrs. H. ultimately abandoned the children and consented to termination of her parental rights. In consolidated cases J-96-10436 and J-96-10624, each child was adjudicated to be in need of assistance.⁷

For approximately six months after his birth, Tristynn lived with petitioner and Ms. H. Tristynn subsequently came into the care of CCDSS on December 28, 1995, at the age of six months, when petitioner went to CCDSS and asked for help in caring for his child. Petitioner testified that there was no electricity in the apartment where the family had been living at the time he brought Tristynn to CCDSS and that he had no food to feed Tristynn. There was no other evidence bearing on the issue of neglect and no evidence of abuse. Petitioner stated that “[I] thought [I] was going to get [my] kids back once [I] got [my] electricity turned back on.” When his children were not returned to him, an adversarial relationship between petitioner and CCDSS came into existence.

CCDSS placed Tristynn in foster care, and on April 25,1996 Tristynn went to live with his maternal aunt and uncle, Mr. and Mrs. W. Eventually, on April 30, 1997, Mr. and Mrs. W. told CCDSS that they could no longer care for Tristynn; he was then placed with petitioner’s aunt and uncle, who were licensed foster care parents.⁸

On May 30, 1996, Edward was born and he tested positive at birth for amphetamines and had severe medical problems. Edward was treated for two weeks in the neonatal intensive care unit at Johns Hopkins Hospital. Edward’s mother abused alcohol, over the counter medication, and marijuana during her pregnancy, but it is not certain whether her behavior caused Edward’s medical conditions. Edward entered the care of CCDSS on June 18, 1996 when he was three weeks old, at which time he was immediately placed in foster care with non-relatives Mr. and Mrs. M.⁹

The initial permanency plan for both children was to return them to the home of either parent. On May 13,1997, petitioner was informed that CCDSS’s permanency plan had changed from a plan of reunification to guardianship with the right to consent to adoption. That plan was adopted by the court on June 10,1997.

The adequacy of the reunification services provided to petitioner by CCDSS are disputed. CCDSS claims that the services provided to petitioner were adequate and ultimately unsuccessful. We shall hold that they were not adequate. Specifically, CCDSS states that shortly after Tristynn entered foster care, CCDSS began arranging for him to have supervised visits with petitioner,¹⁰ and CCDSS claims that they had scheduling problems with petitioner from the beginning of the visitation. CCDSS testified that the initial visitation schedule had to be changed frequently to accommodate petitioner’s work schedule and that on at least one occasion petitioner cancelled a visit at the last minute. Further, CCDSS claims that during his early visits with the children, petitioner demonstrated trouble in caring for the children, was unable to remember child care techniques repeatedly shown to him by the social worker, had difficulty in choosing age-appropriate toys for the children, and was not able to help Tristynn with his beginning verbal skills. Moreover, CCDSS states that in later supervised visits when petitioner started seeing Tristynn and Edward together, petitioner needed supervision and direction to understand how to properly care for the two children, how to give them both proper attention when the children are together, and to understand the special medical and dietary needs of Edward.

Additionally, CCDSS states that other than visitation, petitioner did not request additional services from CCDSS, and went so far as to deny his need for services. The social worker assigned to assist petitioner claimed petitioner was not cooperative, was not truthful, and provided inadequate information.

Finally, unlike CCDSS’s usual practice of entering into a new service agreement every six months with those seeking assistance, CCDSS entered into only one Social Services Agreement with petitioner (on July 3, 1996) that had the goal of reunification. The agreement required petitioner to obtain electricity in his apartment, attend parenting classes, complete a domestic violence program, complete an alcohol and drug evaluation, submit to random urine analysis, confirm in advance his intent to keep scheduled visits, be completely truthful with the CCDSS, and remain drug and alcohol free.¹¹

Petitioner attended parenting classes, as well as a parents anonymous group, but the social worker believed that petitioner made very little progress. Petitioner finished the first phase of a domestic violence program, but allegedly could not complete the second phase due to his alleged cognitive limitations. Also, petitioner completed a drug and alcohol evaluation, with the evaluator concluding that he did not need treatment.

A social worker also noted that petitioner never prepared a household budget, presumably for when reunification occurred, or came up with a plan for child care other than suggesting that a family member living close by could care for them. According to CCDSS, petitioner has a reduced mental capacity that renders him incapable of parenting the children on his own.

Insofar as we have been able to discern from the record, CCDSS never offered any specialized services designed to be particularly helpful to a parent with the intellectual and cognitive skill levels CCDSS alleges are possessed by petitioner. We are informed by the amicus brief that such services are available. They include, according to petitioner’s expert witness, Mr. Hardesty:¹² “case management services,” “family and individual support services,” “community supported living arrangement services,” “drop in services,” and “Division of Vocational Rehabilitation” services. Other witnesses testified that financial advising services, family support services, and other programs were available from various entities such as Chance, Flying Colors to Success, Target, various Association Retarded Citizens (ARC) entities, and numerous other entities, private and public. None of these services were utilized by CCDSS.¹³ Moreover, the record does not reflect that CCDSS sought to utilize services that might be available through the Developmental Disabilities Administration, even though it was relying in its drive toward termination on the fact that in the opinion of its workers, petitioner was disabled by reason of mental impairment. (Their term, not ours.)¹⁴ We emphasize that a person of one particular intelligence quotient level may be different from another, but neither of them is impaired or enhanced. He or she is simply what they are. There are no inherently lesser beings in the eyes of the law.

Petitioner counters the allegations of CCDSS that they provided him with sufficient services by claiming that the services offered by CCDSS to him were minimal, inadequate, and inappropriate for his particular situation. Moreover, petitioner proffers that he has completed his education, obtained a driver’s license, has secured employment, and maintains his own residence, indicating that he can, in fact, parent his own children.

Specifically, petitioner claims that while CCDSS did refer him for parenting classes, asked for him to complete a domestic violence program, and referred him for a drug and alcohol evaluation, CCDSS failed to offer petitioner services in a significant manner- — in a manner reasonable for him. In other words, CCDSS did not offer reunification services tailored to address petitioner’s alleged needs. Petitioner asserts that CCDSS did not fulfill its role as a social service department by seeking out programs specific to petitioner’s parenting deficiencies, programs that would aid in the primary and ultimate goal of reunification. The failure, it is argued, of CCDSS to address its services to his specific need has a discriminatory impact.

We note that CCDSS apparently did not even offer petitioner services to assist him with literacy, even after petitioner signed the July 3,1996 Social Services Agreement and fulfilled the obligations it set forth. Petitioner emphasizes how, even after CCDSS changed from a plan for reunification to a plan for guardianship with the right to consent to adoption, he continued to attend parenting classes, participate in Parent’s Anonymous, and continued all that he had been doing, including visiting on a regular basis.¹⁵ Additionally, until the decision by the Court of Special Appeals, petitioner visited with both children consistently, for roughly two hours per week. He was doing all he was asked to do, and proffers that he was not being offered participation in numerous programs that should have been offered to the type of person he was alleged to be by CCDSS.

Additionally, there was evidence that in the fall of 1997, at CCDSS’s request, Neil Blumberg, M.D., conducted a psychiatric evaluation of petitioner. Dr. Blumberg reported ¹⁶ that petitioner suffered from a serious intellectual impairment and categorized petitioner as disabled and unfit to parent. Dr. Blumberg noted that standard testing was not and could not be completed because of petitioner’s inability to read well.

CCDSS’s and the lower court’s reliance on the specific report and testimony of Dr. Blumberg in this case to support their assessment of petitioner’s mental capabilities was inappropriate. Dr. Blumberg’s testimony was, admittedly, conjectural and speculative. A parent’s right to parent should rarely, if ever, be terminated based upon conjectures and speculation. The record even reflects that there was little basis for the conjectures and speculation furnished by Dr. Blumberg. Additionally, Dr. Blumberg also failed to furnish his opinions to any degree of medical probability. We presume he was called to testify as a medical expert as that is his apparent field of expertise.¹⁷

When responding to questions as to why he did not perform tests on petitioner that are sometimes utilized to measure intelligence quotient and adaptability levels, Dr. Blumberg testified: ‘Well I would probably categorize his intellectual impairment as — a disability. I mean, it really does hamper him; he’s — he—he cannot read, his judgment is very limited.” (Emphasis added.) He also testified: “Usually, I’ll give an individual the Minnesota Multi-facet Personality Inventory— MMPI — but, Mr. F. was unable to read, so the test couldn’t be administered.”

We are informed by the amicus brief that the MMPI is not used to measure mental “retardation.” Moreover, the application and use of the MMPI are not limited only to people that can read. The extent to which Dr. Blumberg relies on a person’s inability to read in order to find mental “impairment” or “retardation” is troubling, especially when it is used in proceedings to determine whether to terminate parental rights. There remain, regrettably, large portions of our population that are described as illiterate. In the past, major portions of our population have been illiterate. Many newcomers to our country may not be literate in languages understood by experts who do not speak their language. We would also suspect that illiteracy is disproportionately present among the poor. While literacy, when present, is a very positive aspect of parenting, it is not the only, or even the predominant, factor in being a parent. It is only one of many.

Ultimately, Dr. Blumberg proffered:

“Q. [Petitioner] is intellectually impaired enough that he couldn’t be a fit parent?

A. I think so.

Q. Okay. Could you be wrong?'

A. That certainly is a possibility.”

Dr. Blumberg’s speculation is of insufficient evidentiary value for all of the reasons stated above. Moreover, a parent should not, normally, be deprived permanently of his or her fundamental parental rights upon a response to such a question of, “I think so.”

In contrast, C. Michael Hardesty, an expert in developmental disabilities, who was petitioner’s employment supervisor at United Cerebral Palsy, testified on petitioner’s behalf. Mr. Hardesty testified to petitioner’s strong work ethic, and to petitioner’s duties as a house counselor for United Cerebral Palsy. Specifically, Mr. Hardesty stated that petitioner’s duties had included providing assistance like toileting, dressing, and feeding to persons with profound disabilities, such as quadriplegia.

Some CCDSS caseworkers¹⁸ overseeing petitioner’s file and sitting in on supervised visitations of petitioner and his children testified that petitioner did, in fact, need a high amount of supervision at the visitation sessions to care for the children, and that, in their view, unsupervised visitation would endanger the safety of the children. The caseworkers, however, did recognize that petitioner attempted to bring food, albeit food Edward was not always able to eat, engaged the children in play, and demonstrated an ability to learn and improve his parenting skills through his progress in paying attention to and caring for the children. For instance, petitioner acted appropriately during the visits and sought to teach the children to wash their hands and share. Also, the caseworkers testified that Tristynn called petitioner “Dada” and was happy to see petitioner, and while the visits with Edward were more difficult for petitioner, Edward would at times seek petitioner for comfort. Finally, a social worker observing some of the visits testified that when petitioner needed assistance with the children during the visits he knew to ask for help, and that while, in her view, he was not currently ready for unsupervised visitation, given the opportunity, petitioner could learn the necessary skills. In essence, even CCDSS testified to a certain degree that reunification in the future was reasonably possible, if not probable.

Petitioner is a thirty-eight-year-old African-American male. He graduated from high school in 1982 and has maintained steady employment as a maintenance/cleaning person, a cook, and for six years as a house counselor — all since his graduation from high school. Petitioner has acknowledged his difficulty with reading and he has enrolled, voluntarily and without prompting from CCDSS, in remedial reading classes to improve his reading ability. He has attended parenting classes two times per week for approximately three and a half years and he has attended Parents Anonymous. Petitioner has little history of drug or alcohol abuse, and no history of child abuse or willful neglect. He now lives in a two bedroom townhouse, which includes a bedroom for himself and one which would be shared by the boys were they to be allowed to live with him. He testified that his parents live close to his home and that if he were to encounter problems with the children while in his care, he would know to call his parents or CCDSS for help. Finally, petitioner contends that the short visits under supervised conditions, which is all that CCDSS now permits, render it nearly impossible to establish any regularity with the children, but that with assistance from the appropriate sources he can successfully parent his children.

Since the childrens’ placement in foster care, the record reflects that the children are both adjusting well to, and doing well in, their foster homes. Tristynn had several placements during his first sixteen months in foster care. On April 30, 1997, Tristynn was placed with petitioner’s aunt and uncle (Mr. and Mrs. F.). He is still under their care. Although showing some developmental delays, Tristynn is described as happy and is comfortable with his foster parents, but shows affection for petitioner and displays no negative reactions after visits. Mr. and Mrs. F. wish to adopt Tristynn, but expect Tristynn to continue his relationship with petitioner.

Edward, upon his release from the hospital at about two weeks old, was placed with Mr. and Mrs. M., licensed foster parents with training to care for special needs children. Despite his medical problems, which require regular monitoring because of a cyst on his brain and food and environmental allergies, he has adjusted well in foster care. Mr. and Mrs. M. want Edward to know his father, but stated that Edward has had difficulty in visiting with petitioner and seems irritable after visits. Mr. and Mrs. M. wish to adopt Edward at the end of this litigation.

IV. Discussion

a. Adoption — Standard of Review

Maryland Code (1984, 1999 Repl.Vol.), section 5-313 of the Family Law Article (FL)¹⁹ mandates that the trial court follow the standard set forth therein when determining whether parental rights are to be terminated. That section reads, in part:

“(a) In general. — A court may grant a decree of adoption or a decree of guardianship, without the consent of a natural parent otherwise required by §§ 5-311 and 5-317 of this subtitle, 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 and that:

(2) in a prior juvenile proceeding, the child has been adjudicated to be a child in need of assistance, a neglected child, an abused child, or a dependent child; or

(c) Required considerations. — In determining whether it is in the best interest of the child to terminate a natural parent’s rights as to the child in any case, except the case of an abandoned child, the court shall give:

(1) primary consideration to the safety and health of the child; and

(2) consideration to:

(i) the timeliness, nature, and extent of the services offered by the child placement agency to facilitate reunion of the child with the natural parent;

(ii) any social service agreement between the natural parent and the child placement agency, and the extent to which all parties have fulfilled their obligations under the agreement;

(iii) the child’s feelings toward and emotional ties with the child’s natural parents, the child’s siblings, and any other individuals who may significantly affect the child’s best interest;

(iv) the child’s adjustment to home, school, and community;

(v) the result of the effort the natural parent has made to adjust the natural parent’s circumstances, conduct, or conditions to make it in the best interest of the child to be returned to the natural parent’s home, including:

1. the extent to which the natural parent has maintained regular contact with the child under a plan to reunite the child with the natural parent, but the court may not give significant weight to any incidental visit, communication, or contribution;

2. if the. natural parent is financially able, the payment of a reasonable part of the child’s substitute physical care and maintenance;

3. the maintenance of regular communication by the natural parent with the custodian of the child; and

4. whether additional services would be likely to bring about' a lasting parental adjustment so that the child could be returned to the natural parent within an ascertainable time, not exceeding 18 months from the time of placement, but the court may not consider whether the maintenance of the parent-child relationship may serve as an inducement for the natural parent’s rehabilitation; and

(vi) all services offered to the natural parent before the placement of the child, whether offered by the agency to which the child is committed or by other agencies or professionals.

(d) Considerations following juvenile adjudication. — (1) In determining whether it is in the best interest of the child to terminate a natural parent’s rights as to the child in a case involving a child who has been adjudicated to be a child in need of assistance, a neglected child, an abused child, or a dependent child, the court shall consider the factors in subsection (c) of this section and whether any of the following continuing or serious conditions or acts exist:

(i) the natural parent has a disability that renders the natural parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for long periods of time;

(ii) the natural parent has committed acts of abuse or neglect toward any child in the family;

(iii) the natural parent has failed repeatedly to give the child adequate food, clothing, shelter, and education or any other care or control necessary for the child’s physical, mental, or emotional health, even though the natural parent is physically and financially able;

(iv) 1. the child was born:

A. addicted to or dependent on cocaine, heroin, or a derivative thereof; or

B. with a significant presence of cocaine, heroin, or a derivative thereof in the child’s blood as evidenced by toxicology or other appropriate tests; and

2. the natural parent refuses admission into a drug treatment program or failed to fully participate in a drug treatment program; or

(v) the natural parent has:

1. subjected the child to:

A. torture, chronic abuse, or sexual abuse; or

B. chronic and life-threatening neglect;

2. been convicted:

A. in this State of a crime of violence, as defined in Article 27, § 643B of the Code, against the child, the other natural parent of the child, another child of the natural parent, or any person who resides in the household of the natural parent;

B. in any state or in any court of the United States of a crime that would be a crime of violence, as defined in Article 27, § 643B of the Code, if committed in this State against the child, the other natural parent of the child, another child of the natural parent, or any person who resides in the household of the natural parent; or •

C. of aiding or abetting, conspiring, or soliciting to commit a crime described in item A or item B of this item; or

3. involuntarily lost parental rights of a sibling of the child.

(2) If a natural parent does not provide specified medical treatment for a child because the natural parent is legitimately practicing religious beliefs, that reason alone does not make the natural parent a negligent parent.

(3) The court shall consider the evidence under paragraph (l)(i) through (iv) of this subsection regarding continuing or serious conditions or acts and may waive the child placement agency’s obligations under subsection (c) of this section if. the court, after appropriate evaluation of efforts made and services rendered, finds by clear and convincing evidence that the waiver of those obligations is in the best interest of the child.

(4) The court shall waive the child placement agency’s obligations under subsection (c) of this section if the court finds that one of the circumstances or acts enumerated in paragraph (l)(v) of this subsection exists.

(5) If the court finds that any of the circumstances or acts enumerated in paragraph (l)(v) of this subsection exists, the court shall make a specific finding, based on facts in the record, as to whether or not the return of the child to the custody of the natural parent poses an unacceptable risk to the future safety of the child.” •

In cases where the termination of parental rights is involved, there is, as we have said, a strong presumption that the child’s best interests are served by maintaining parental rights. It is only when clear and convincing evidence exists that the child’s best interests are served by termination, may a parent’s constitutional right to parent his child be permanently foreclosed. In our view, in the instant case, considering the allegations made by CCDSS as to petitioner’s mental capacity, the parenting and reunification services offered to petitioner were not sufficient and not sufficiently tailored to his alleged specific situation to support a finding that, with sufficient and properly tailored services, he could not maintain a parental relationship with his children. (Sec.5 — 313(c) (2)(i)). There was evidence of only one reunification agreement between the natural parent and CCDSS. The agreement that petitioner was required to enter into, was, as we have said, deficient in its specific application to his needs. Even then, the evidence supports that petitioner made a major effort to fulfill his obligations under that agreement, albeit limited somewhat by his then reading level. While there may be no easily ascertainable levels of assistance that must be offered when the termination of parental rights of a “disabled” parent is involved, that level is far above the minimal services CCDSS offered in the case sub judice.

Additionally, on his own, petitioner sought help in improving his reading ability and thus his level of literacy. (Sec.5-313(c)(2)(ii)). The children had bonded well with foster parents, but also appeared to display feelings and some bonding with petitioner. (Sec.5 — 313(c)(2)(iii)).²⁰ The children, while apparently well adjusted to their foster parents and foster homes, also appeared comfortable with petitioner when he was permitted to be with them. Neither child was in school and there was no evidence as to any community adjustment. (Sec.5 — 313(c) (2) (iv)).

There was uncontradicted evidence that petitioner had made extensive and extraordinary efforts to further reunification with his children. He had, to the best of his ability, attempted to do almost everything asked of him, and more, in order to become a capable parent. Additionally, he currently had steady employment, and had been steadily employed for extended periods of time. He had living facilities that included a bedroom for the children. There is no evidence that the facility, itself, was presently unsuitable. There were relatives nearby that could offer assistance upon request. His employment had consisted of assisting disabled persons in assisted care living situations. (Sec.5-313(c)(2)(v)). In so far as the record reflects, he maintained as regular a contact with his children as CCDSS would permit. (Sec.5-313(c)(2)(v) 1). There is little evidence to which we have been directed in the record that he has declined to contribute to the payment of the expenses of his children, or, for that matter, that he is at the present time unable to contribute to their support. (Sec.5-313(c)(2)(v) 2). The record reflects that petitioner has attempted to maintain regular contact with his children but that, to some degree, he has been stymied in his attempts by the position taken by CCDSS. (Sec.5-313(c)(2)(v) 3). The evidence is unclear as to whether additional services, specific to petitioner’s needs, would bring about lasting parental adjustments facilitating reunification. Nevertheless, it is clear that only regular services havé been offered under a single reunification program. It is asserted by petitioner, and by his expert witness, and amicus curiae that additional services that are particularly appropriate for someone in petitioner’s situation are available, but have never been offered to him. It is thus unclear, and certainly not to a clear and convincing standard, that proper additional services could not bring about an adjustment that would permit reunification in the reasonable future. Until such services are offered, and petitioner avails or does not avail himself of such services, it is not clear that reunification is unforeseeable. (Sec.5-313(c)(2)(v) 4).

Equally, we do not believe that the evidence presented below satisfies the clear and convincing standard as to the conditions or acts under section 5-313(d). As we indicate elsewhere, there is little evidence, as opposed to conjecture, that petitioner was inherently disabled to such an extent that he would be unable to care for the needs of the children for considerable periods of time. (Sec.5-313(d)(l)(i)). He had, in fact, cared for the needs of other disabled persons as a part of his steady employment. He could not adequately read, but was taking classes to address that deficiency. He was a high school graduate. He had adequate living facilities. There was no scientific evidence that he was mentally impaired — that was an assumption that was made by CCDSS and Dr. Blum-berg, who apparently presumed that he was, but undertook no tests to establish the extent, if any, of such impairment. Dr. Blumberg was of the perhaps mistaken opinion that the tests to determine the extent of impairment could not be given to someone who could not read. There was no evidence that petitioner had ever committed acts of abuse or willful neglect in respect to the children. In fact, when he was unable to care for Tristynn for a temporary period he approached CCDSS seeking assistance. (Sec.o — 313(d)(l)(ii)). There is no evidence that the petitioner “repeatedly” failed to give his children adequate food, shelter, etc. The only evidence in the record is that on the one occasion when he was unable to care for a child, he went to CCDSS seeking assistance. Since that moment, he has not had custody of the children.

One of the children was apparently bom with health problems related to the drug addiction of the mother, not the petitioner. There is little evidence that the petitioner had, or has, any alcohol or drug problems. Nonetheless, he attended all drug and alcohol rehabilitation programs to which he was referred, only to have those programs conclude that he had no such problems. (Sec.5 — 313(d)(l)(iv)(l) and (2). There is no evidence that the petitioner ever subjected either of the children to torture, chronic abuse, or sexual abuse. The only time that there was any evidence of neglect it was not chronic or life-threatening, and, in fact, petitioner sought assistance from CCDSS. One is not neglecting children when he seeks assistance from CCDSS. (Sec.5-313(d)(l)(v)(l). There is no evidence that the petitioner has ever been convicted of any criminal offense. (Sec.5 — 313(d)(1)(v)(2). Other than the children at issue in the instant case, there is no evidence that petitioner has ever lost parental rights of the children’s siblings. (Sec.5-313(d)(1)(v)(3)

This law clearly establishes that the relevant standard in TPR proceedings is to be by “clear and convincing evidence” and what is in “the best interest of the child.” In In re Mark M., 365 Md. 687, 705-06, 782 A.2d 332, 343 (2001), we recently reiterated the importance of the “best interest of the child” standard within the context of the Family Law Article of the Annotated Code of Maryland:

“Pursuant to the doctrine of parens patriae, the State of Maryland has an interest in caring for those, such as minors, who cannot care for themselves. See Boswell, 352 Md. at 218-19, 721 A.2d at 669. We have held that ‘the best interests of the child may take precedence over the parent’s liberty interest in the course of a custody, visitation, or adoption dispute.’ Boswell, 352 Md. at 219, 721 A.2d at 669; see also In re Adoption No. 10941, 335 Md. at 113, 642 A.2d at 208 (stating that ‘the controlling factor ... is ... what best serves the interest of the child’). That which will best promote the child’s welfare becomes particularly consequential where the interests of a child are in jeopardy.... As we stated in In re Adoption/Guardianship No. A91-71A 334 Md. 538, 640 A.2d 1085 (1994), the child’s welfare is ‘a consideration that is of “transcendent importance’ ”....”

In determining whether it is in the “best interests” of the children, here Tristynn and Edward, to terminate completely a natural parent’s relationships with his children, the court (the Circuit Court for Carroll County) was required to consider the factors listed in section 5-313(c) that we have extensively discussed above. We are well aware that the trial court “is in the unique position to marshal the applicable facts, assess the situation, and determine the correct means of fulfilling a child’s best interests.” In re Mark M., 365 Md. 687, 707, 782 A.2d 332, 343-44 (2001). CCDSS argues in its brief how the Circuit Court in making its determination neither abused its discretion nor made findings that were clearly erroneous, and that the Court of Special Appeals supported the Circuit Court’s findings and found the Circuit Court not to have abused its discretion. The Court of Special Appeals opined:

“The Circuit Court conducted hearings in the instant matter.... The court concluded that it was in the best interests of the children to terminate Mr. F.’s parental rights.

Based on the evidence, reviewed below, we cannot say that the Circuit Court was clearly erroneous in its factual determinations or that it abused its discretion by terminating Mr. F.’s parental rights.”

In re Adoption/Guardianship Nos. J9610436 and J9711031, No. 1579, slip op. at 4 (Court of Special Appeals May 11, 2001).

Upon our review of the record in this case, it is evident that there was not clear and convincing evidence in the record of this case sufficient to overcome the presumption that the “best interests” of the children rest in the retention, generally, of petitioner’s parental rights, although at the present time actual custody may not he appropriate. There was a failure to rebut by a clear and convincing standard the strong presumption that a child’s “best interest” is served by retaining legal relationships with his or her natural parents. The trial court erred in finding otherwise and abused its discretion in terminating petitioner’s parental rights.

We hold that the trial court, in considering the factors under section 5-313(c) and 5-313(d), reached an erroneous conclusion that those factors had been sufficiently satisfied so as to establish by clear and convincing evidence that the best interests of the children would be better served by now terminating petitioner’s fundamental constitutional right to be a parent to his children. We shall reverse the decisions of the intermediate court and the Circuit Court. In this case, when considering section 5-313 alone, and within the context of Title 5 of the Family Law Article as a whole, there was not ample evidence to properly conclude that Mr. F.’s disability, even if it exists, renders him permanently incapable of caring for his children in an unsupervised setting. Nor is there sufficient evidence that CCDSS has made adequate reunification efforts to improve petitioner’s parenting skills. Certainly, there was not clear and convincing evidence to warrant a present termination of his parental rights.

b. Decisions Below

A majority of the intermediate appellate court upheld the ruling of the Circuit Court for Carroll County that it was in the best interests of the children to not be returned to Mr. F.’s home. In so doing, the Court of Special Appeals cited in its discussion a body of out of state case law addressing termination of parental rights cases with facts analogous to the facts in the case sub judice. There is case law elsewhere where parents, who were eager to keep and care for their children and participate in treatment plans, were stripped of parental rights because of one or both parent’s méntal retardation, mild mental retardation, mental limitations, or mental deficiencies — despite the parent’s lack of wrongdoing and presumed love. Relying on these cases,²¹ the Court of Special Appeals’s majority rejected Mr. F.’s principal contention that he has not been given a sufficient opportunity to demonstrate that he is capable of reunification in the future and that it would be in the best interests of the children to continue efforts at improving his parenting skills with the goal of reunification.

Additionally, the Circuit Court stated at one point: “Furthermore, the Court finds that Tristynn and Edward have continuously been out of the custody of Mr. F. and in the custody of CCDSS for more than one year.” In cases such as this, parents who undeniably love their children, as does Mr. F., and seek assistance when assistance is needed, are placed at great risk of losing their children altogether. If they go to the Department of Social Services for help and if the Department places their children, even on a temporary basis, with foster parents with whom they bond (and that is the type of foster parents one hopes are found), the natural parent runs the very real risk of later having that bonding in the foster home, created, in part, by CCDSS and court forced inaccessibility to his own children, be a major factor used by the same court to later terminate his parental rights. In other words, if one seeks help, the removal of one’s children may be forced upon him or her, setting in progress an ongoing situation that, day by day, week by week, year by year, through the passage of time, lessens the parent’s bonds with the children and, through that de-bonding process, lessens chances of reunification. In such a process, a process that appears to inherently exist, parents risk the thing most dear to them when they seek assistance from the Department.

The trial court also erroneously found that Mr. F.’s mental limitations constituted a disability²² that as section 5-813(d)(i) states, “renders the natural parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for long periods of time.” There was not sufficient evidence, meeting the clear and convincing standard, to support the trial court’s determination that the complete termination of petitioner’s parental rights was appropriate based upon a mental disability. The termination of fundamental and constitutional parental rights is a “drastic” measure, and should only be taken with great caution, after extensive consideration of each of the relevant statutory considerations set forth in section 5-313. Our holding today reflects the idea that fundamental constitutional rights, i.e., the child rearing rights at issue here, can only be completely terminated upon the clearest and most convincing evidence that the parent, however poor, uneducated, or disabled, cannot and will not, even with proper assistance, be able to sufficiently parent his children in the reasonable future.

In termination cases, the “best interests” analysis should not be automatically interpreted to be a search for a perfect, or more perfect, or even a better situation for any particular child. Life is not perfect. Children are born into different circumstances — some into wealth and other advantage, some not.

Under the facts of the case sub judice, petitioner’s parental rights should not have been terminated. Specifically, considering the insufficiency of clear and convincing evidence that petitioner was mentally disabled, CCDSS’s non-conformance with its duties under section 5-313 to offer more fully tailored services to a parent it deemed mentally disabled, and the inherent pressure on a social service agency to seek adoption as a permanent situation when the agency’s receipt of federal funds discourages extensive reunification efforts and encourages adoption, when compared with all the efforts petitioner has made to be a better parent, and with what petitioner can offer to the child — a termination of parental rights is presently unjustified and improperly strips Mr. F. of constitutionally guaranteed rights. There were significant failures in this case by CCDSS under section 5-313 with regard to petitioner, and such failures ultimately undermined the best interests of Tristynn and Edward, which is still presumed to be reunification with a natural parent desirous of reunification.

Primarily, CCDSS failed petitioner, and did not adequately perform its statutorily mandated duties under section 5-313(c)(2), by failing to provide a timely and sufficiently extensive array of available programs for petitioner, who, while perhaps hampered by some cognitive limitations, is eager and may well be able, with properly tailored services, to care for his children. From the moment petitioner came to ask for help, CCDSS, as far as we can discern, provided only untai-lored reunification services. CCDSS should have, instead of providing services for which there was little or no need, provided more specific services for petitioner who consistently displayed a willingness and genuine desire to cai*e for his children. CCDSS had at its disposition better suited services for petitioner.²³

As was stated many times by the range of witnesses both for and against petitioner, no one ever posited the possibility that petitioner regain immediate unsupervised control of his children if CCDSS’s petition for guardianship and adoption ivere to be denied. We are, thus, not concerned in this case with the immediate complete reunification and custody of the children with the petitioner. We merely hold that on the evidence in this record, termination was not warranted.

Moreover, CCDSS’s main contentions of petitioner’s perceived inabilities to parent Tristynn and Edward in the immediate future do not lead to the conclusion that petitioner “has a disability that renders [him] consistently unable to care for the immediate and ongoing ... needs of the child for long periods of time” under section 5-313(d)(l)(i).

Petitioner is, according to the record before us, able, even with his “cognitive limitations” (if they exist), to now financially provide for Tristynn and Edward’s care and maintenance. Since high school, petitioner has consistently been employed. Petitioner has demonstrated a relatively dedicated work ethic. He has a better work history than many fathers who are not alleged to be mentally impaired. Petitioner has also demonstrated this work ethic while dealing and caring successfully for those at the United Cerebral Palsy Center with severe disabilities. This ability to care for those with severe disabilities might be an indication that petitioner’s immediate parenting problems, if they exist, would dissipate within the near time, with the aging of the children, and petitioner’s continued growth in his parenting skills.

The judgment of the Court of Special Appeals is reversed, and the case shall be remanded to that court for it to reverse the judgment of the Circuit Court for Carroll County.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR CARROLL COUNTY TERMINATING PETITIONER’S PARENTAL RIGHTS; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.²⁴

1 . This “Act" is the “Adoption Assistance and Child Welfare Act of 1980,” codified at 42 U.S.C. sections 670-679 (1988).

2 . There is no evidence of child abuse in the case sub judice.

3 . The amicus brief filed in this case also notes the applicability of the Americans with Disabilities Act (“ADA”). It asserts that it should be applicable in the area of termination proceedings where the parents are disabled.

4 . The term “neglect” implies, generally, a deliberate or knowing neglect. In the case at bar, a knowing neglect has never been established. •The record supports that the father attempted to care for his children; he did not neglect to make efforts to care for them.

5 . Specifically, the hearing dates were: June 23, 1998, June 24, 1998, January 29, 1999, July 16, 1999, and July 20, 1999.

6 . Chief Judge Murphy, dissenting, commented, in part, “Rare are the cases in which parental rights are terminated on the ground that, even ‘though the [parent’s] effort and desire [to be a good parent] is there, the [parent’s] ability simply is not.’ In these rare cases, every reasonable effort should be made to assist the parent and termination should he the very last resort...." In re Adoption/Guardianship Nos. J9610436 and J9711031, No. 1579 (Court of Special Appeals May 11, 2001) (Dissent, C.J. Murphy).

7 . Tristynn was found to be a Child in Need of Assistance (CINA) in Juvenile case J-96-10436 by Order dated March 21, 1996 and Edward was found to be a CINA in Juvenile Case No. J-96-10624 on August 6, 1996.

8 . Tristynn continues to live with petitioner’s aunt and uncle at the time of this decision, and they are interested in adopting Tristynn. It should be noted that for a brief period of time, December 10, 1996 through March 1, 1997, Tristynn was removed from the care of Mr. and Mrs. W. and was placed with his mother in aftercare, amounting to a gap in time between April 25, 1996 and April 30, 1997 when Tristynn was placed with petitioner's aunt and uncle.

9 . Edward continues to reside with Mr. and Mrs. M., both of whom are interested in adopting Edward.

10 . In fact, it was roughly four months after Tristynn entered foster care before CCDSS arranged for petitioner to begin supervised visits with Tristynn.

11 . The record does not indicate that petitioner was involved in domestic violence in respect to either of the children or had any drug or alcohol addictions from which to remain free.

12 . Mr. Hardesty was specifically qualified as an expert in developmental disabilities.

13 . The amicus brief also describes state licensed Developmental Services Groups, the Growing Together Program of Parents and Children Together, and The Infants and Toddlers Program through public school systems.

14 .

“It is very hard to go through life with a label. You have to fight constantly. Retarded is just a word. We have to separate individuals from the word. We use words like ‘retarded’ because of habit — just like going shopping every week and getting up in the morning. The word ‘retarded’ must be there if you are going to give people help, but what the hell is the sense of calling someone retarded and not giving them anything?

If the label is not used to help, it is inevitably used to hurt. Unless that is the aim, unless the goal is in fact the diminishment of the mentally retarded labeled parent, the label has almost no place in child welfare law.”

Robert L. Hayman, Jr., Presumptions of Justice: Law, Politics, and. the Mentally Retarded Parent, 103 Harv. L.Rev. 1202, 1269 (1990) (endnote omitted).

‘ 'In the cause for humanity, we must agree that:

All men are human beings.

All human beings are valuable.

And all the rest is commentary.”

Id. at 1202, quoting Burton Blatt, In and Out of Mental Retardation 95 (1981).

“FROM the perspective of the law, the mentally retarded parent is an oxymoron-in-waiting. Each mentally retarded parent faces the substantial likelihood that, by legal prescription, she will soon no longer be. The class of mentally retarded parents, meanwhile, drifts toward a eugenicist vision: due in large part to the systematic termination of their parental rights — -one of the law's more vulgar fictions — and in small part to some strategic definitional retreats, utter extinction of the class is not altogether improbable. Three generations must have been enough after all; the law has said as much.

... In removing children from ‘mentally retarded' labeled parents, and in terminating those parents' parental rights, the law gives effect to a conception of human worth that ultimately diminishes us all.”

Id. at 1203 (endnotes omitted).

15 . Petitioner also continued these activities after the new plan was adopted by the Circuit Court and after CCDSS filed a Petition for Guardianship with the Right to Consent to Adoption or Long Term Care Short of Adoption and for the termination of petitioner’s parental rights.

16 . Dr. Blumberg’s report, dated October 30, 1997 was admitted into evidence at an Exceptions hearing on June 23, 1998 at which Dr. Blumberg testified.

17 . Chris Watkins in Beyond Status: The Americans with Disabilities Act and the Parental Rights of People Labeled Developmentally Disabled or Mentally Retarded, 83 Cal. L.Rev. 1415, 1443 (1995), writes:

“Other cases interpreting statutes like those in force in Illinois and Louisiana have relied on expert testimony that has more to do with presumptions about group characteristics than actual observation of individual behavior or abilities. This reliance on experts’ presumptions lightens the burden on the courts: it requires resources and time to evaluate an individual's parenting abilities, and it is much easier to rely on the opinions of experts who need only two or three hours with the parent to reach their conclusions. These conclusions in turn support presumptions about the inadequacy of developmenlallv disabled parents .... When courts allow presumptions of inadequacy to replace individual inquiry, they erect insurmountable hurdles lor parents labeled developmentally disabled or mentally retarded.

18 . We are referring to CCDSS social workers Deborah Ramelmeier and Ilelga Anderson.

19 . All references to section 5-313 are to this citation.

20 . As in many cases where the children have been forcibly removed from the custody of their natural parents, bonding issues may be severely affected by the extent of that removal. It may become increasingly difficult to maintain bonding because of the circumstances. In essence, the process makes the bonding difficult, then social service agencies rely on the lack of bonding as one of ihe reasons for terminal ion.

21 . In re R.M.S., 187 Ill.App.3d 41, 134 Ill.Dec. 816, 542 N.E.2d 1323 (1989); In re Terry, 240 Mich.App. 14, 610 N.W.2d 563 (2000); In re D.L.S., 230 Neb. 435, 432 N.W.2d 31 (1988); In re Joyce T., 65 N.Y.2d 39, 489 N.Y.S.2d 705, 478 N.E.2d 1306 (1985); In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

22 . We have been unable to find in the record sufficient evidence (other than conjecture and speculation) that petitioner was “mentally disabled” as that term is scientifically measured.

23 . While we did not research the services available to CCDSS to present to its clients, we note the services brought to light by those groups comprising and writing the amicus brief in this case. The amici note numerous services available to assist parents with developmental disabilities. CCDSS agents are in the best position to be aware of and offer specific Carroll County services, but, in circumstances such as those allegedly extant here, ihey should also present or find other state based agencies to help allegedly cognitively limited parents.

24 . The dissents misconstrue the primary issue before the Court. This is not a case involving the parent’s right to the immediate custody of the children. The Court does not dispute the lower court’s holding, as stated in the dissent “[Tjhat Mr. F. was not a fit custodial parent at the time of the hearings.” This is, instead, a case involving the right of the State, through its agencies, to forever terminate the rights of parents to be parents, when those parents have engaged in no willful conduct that would justify the taking away of important and fundamental constitutional rights. We noted above "although at the present time actual custody may not be appropriate,” and ”[a]s was stated many times by the range of witnesses both for and against petitioner, no one ever posited the possibility that petitioner regain immediate unsupervised control of his children.... We merely hold that on the evidence in this record, termination was not warranted.” Our holding is that in view of the fact that the parent in this case was not abusive and did not willfully neglect the only child that has been in his custody and, in light of the basic and fundamental and important constitutional rights involved, termination, on the record now extant in this case, was not presently warranted. We have abundantly made clear that we are not addressing the issue of present custody.

Judge Harrell’s dissent criticizes the Court, stating: "I fault the Majority of this Court, however, for listening to the music, but not the words.” What we have done is to consider the status of the parent’s intentions and efforts, and determined that nothing in this case warrants the present termination of his parental rights. What the dissenters fail to acknowledge is that the majority holds that the evidence, however the dissent characterizes our consideration, be it words or music, does not support the abolishment of this innocent parent’s constitutional rights.

The dissenters, while accusing the majority of ignoring "much of what our job is about,” fail, utterly, to recognize that any court’s primary obligation is to the Constitutions. It is what we, as judges, take an oath to uphold. What we have said is not that the parent at present has the right to custody of his child, but that, on this record, it is too soon to sever all relationships with this non-abusive, non-neglectful parent, for all time, with his children, in order to find "better parents,” and to violate his constitutional rights by doing so. The bottom line is that parents have rights.