author: Gilbert, C. J.,

text:
    MONTGOMERY COUNTY DEPARTMENT OF SOCIAL SERVICES, et al. v. REBECCA SANDERS
    [No. 943,
    September Term, 1977.]

      Decided January 10, 1978.

      The cause was argued before Gilbert, C. J., and  Mencione and Lowe, JJ.

      Adam J. Wojciak, Jr., Assistant County Attorney, with whom was Richard S. McKernon, County Attorney for Montgomery County, on the brief, for appellant Montgomery County, Maryland. William G. Simmons for appellant Edwin Owen Sanders, Jr. Gilbert E\ Tietz for other appellant.

      Mark Colvin and George E. Burns, Jr., Assistant Public Defenders, with whom was Alan H. Murrell, Public Defender, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The United Nations Declaration states that “[mjankind owes to a child the best it has to give.” Very few persons will quarrel with the tenor of that assertion. What gives rise to controversy is not the general proposition of mankind’s obligation to provide what is best for the child, but rather, what is best. The theoretical best mankind can provide is not always the best that society, through its courts, can implement. Consistently, the courts of Maryland have endeavored, in custody cases, to look to the “best interest” of the child. See e.g., Ross v. Hoffman, 280 Md. 172, 175, 372 A. 2d 582, 585 (1977); DeGrange v. Kline, 254 Md. 240, 243, 254 A. 2d 353, 354 (1969); Kline v. Bennett, 245 Md. 674, 678, 225 A. 2d 863, 865 (1967); Butler v. Perry, 210 Md. 332, 342, 123 A. 2d 453, 458 (1956); Trudeau v. Trudeau, 204 Md. 214, 218, 103 A. 2d 563, 564 (1954); In re Harris, 200 Md. 300, 310, 89 A. 2d 615, 619 (1952); Ross v. Pick, 199 Md. 341, 351, 86 A. 2d 463, 468 (1962); Miller v. Miller, 191 Md. 396, 407, 62 A. 2d 293, 298 (1948); Dietrich r. Anderson, 185 Md. 103, 116-17, 43 A. 2d 186, 191-92 (1945); Kartman v. Kartman, 163 Md. 19, 22, 161 A. 269, 270 (1932); Barnard v. Godfrey, 157 Md. 264, 267, 145 A. 614, 616 (1929). Courts, however, are limited to the framework of that which is available in each particular case.

In the case now before us, the Montgomery County Department of Social Services (MCDSS) and Edwin Owen Sanders, Jr., seek to have us place judicial imprimatur upon the socio-psychological concept of “the psychological parent,” J. Goldstein, A. Freud, A. Solnit, Beyond the Best Interests of the Child 7 (1973), as the paramount factor in awarding custody. On the other hand, the biological mother, Rebecca Sanders, asks that we reject outright that approach to custody determination. We shall neither sweepingly commend nor condemn the “psychological parent” concept in custody proceedings, but we expressly limit our holding in the particular circumstances of the case sub judice to declaring that the award to the psychological parent is not in the best interest of the child.

The child, Christopher Robyn Sanders, was only ten (10) months old when his mother, the appellee, Mrs. Rebecca Sanders, took him, on January 3, 1976, to Walter Reed Hospital for treatment of what she believed to be a viral infection. The hospital records, however, indicate that the actual cause of Christopher’s debilitated condition was a “fractured left clavicle, first left rib fracture, older fracture of right femur, older chipped fracture of left femur, periosteal elevation of the left humerus, multiple bruises, bite mark on left cheek, scratch marks on right .abdomen, and old bruises on the head.” This shocking physical condition of the child prompted the MCDSS to petition the District Court for Montgomery County for Juvenile Causes to declare Christopher a “Child in Need of Assistance.” The petition was filed pursuant to the Md. Cts. & Jud. Proc. Code Ann. § 3-801 (e) (2) (1974).

Following an emergency hearing on January 26, 1976, the court ordered Christopher removed from his parents’ custody, placed under the jurisdiction of the court, and committed to MCDSS “for temporary shelter care.”

On April 26, 1976, an adjudicatory hearing was held, and Judge John C. Tracey found that Christopher’s best interest and welfare would be served by his continuing, temporarily, in his foster home with Mr. and Mrs. Ernest Shepard. At a subsequent dispositionary hearing, July 2, 1976, Judge Tracey reaffirmed Christopher’s commitment to MCDSS.

Evidence presented at both the adjudicatory and the dispositionary hearings indicated that the appellee, Rebecca Sanders, was not the cause of Christopher’s injuries. Mr. Edwin Sanders, Jr., apparently ignorant of the old maxim, “patria potestas in pietate debet, non in atrocitate, consisted, admitted biting his son on the face as a disciplinary measure because the infant child had bitten him on the ear. Sanders also testified that he may have been too rough in his expressions of paternal affection, which may have resulted in physical injury to the child.

Dr. Frederick Ruyman, Assistant Chief of the Department of Pediatrics at Walter Reed Hospital testified that the cause of the fracture of the left clavicle could have been a severe fall. Similarly, the fractures of the left tibia and humerus could have been caused by Mr. Sanders’ pulling and twisting Christopher’s arm in the course of “rough play.” Sanders told the court that although he believed his wife fáiled to care properly for their son he had never seen her strike or attempt to harm the child.

A polygraph test, administered to Rebecca Sanders on February 25,1976, confirmed that she had neither knowledge of, nor was responsible for, her baby’s injuries. Moreover, Mrs. Sanders contradicted her husband’s allegations of neglect and offered evidence that she kept Christopher well fed and clothed, and that she never left him unattended for extended periods of time.

During Christopher’s enforced absence in 1976, Mrs. Sanders made a good-faith effort to create an environment for her son which would meet with the approval of MCDSS. She, having moved to Toledo, Ohio, entered a counselling program under the auspices of the Family Services of Toledo. Her counselling sessions were later expanded into a full therapy program. Mrs. Sanders also retained a pediatrician specializing in abuse cases to examine Christopher periodically after his return to her custody.

Mrs. Sanders’s movement to the home of her parents in Ohio was caused by her separation from her husband in 1976 and resulting severe financial problems. The combined effect of her almost dire financial plight and the fact that she was experiencing a difficult pregnancy prevented Mrs. Sanders from travelling to Maryland and visiting Christopher. Nevertheless, inferentially, she telephoned the MCDSS weekly to inquire about her son.

On October 15, 1976, appellee filed a “Petition for Change of Placement of Minor Child to the Natural Mother.” At the hearing in January 1977, Mrs. Sanders testified that she was continuing her therapy and was willing to consult additional psychologists or psychiatrists if so ordered by the court. Her expectations concerning Christopher’s homecoming were realistic, and she recognized that a period of adjustment would be involved.

The record reveals that during her residency in Ohio, prior to the October hearing, appellee completed five (5) courses at the University of Toledo Community College, including one on child development in which she said that she received a grade of “A.” She aspires to attain an associates degree in social service technology. As part of the academic requirements, she has been working with and observing young children. Dr. Robert A. Wilson, Chairman of the Department of Social Behavior at Columbia Union College, offered expert testimony, in July 1977, that Mrs. Sanders is capable of putting her newly acquired knowledge on child rearing into practice.

The appellee is a devout Seventh Day Adventist and has been assisting children under the age of four (4) years in her church’s Sunday school program. Additionally, she has been babysitting the infant son of a friend. Mrs. Sanders has arranged for a babysitter to watch Christopher while she attends classes at the Community College. Efforts have also been made by her to obtain employment and to secure public housing.

Among the original reasons set forth by MCDSS for opposing transfer of custody back to Mrs. Sanders is the possibility of Christopher’s living with his maternal grandparents, the Bilbys. MCDSS has expressed reservations concerning the suitability of the Bilby home as a temporary shelter for the child. Social Services’ reports characterized Mr. Bilby as nervous, defensive and hostile. Mr. Bilby’s attitude, in light of his strong belief that his grandchild had been unjustly removed from the family unit, is not completely indefensible. The Social Services’ description of Mr. Bilby must also be balanced against the fact that he holds a responsible job as a vocational high school teacher, is deeply concerned over the welfare of his family, and displays no propensity for violence. There is absolutely nothing in the record to cause one to suspect that he would ever harm his grandson. The reports pictured the grandmother, Mrs. Bilby, as a patient, intelligent woman with deep religious convictions. She indicated a willingness to resign her job, a clerical position, in order to spend extra time assisting her daughter in caring for Christopher. The Bilbys have also offered financial aid to their daughter and grandson.

On petition, the court appointed an attorney to represent “the best interest and welfare” of Christopher. Md. Cts. & Jud. Proc. Code Ann. § 2-102 (a) (1974). Review hearings were held on June 14, June 15, July 20, and July 28,1977. In the course of the July 20, 1977 hearing, Dr. James Harrell, Chief Psychologist and Coordinator of Mental Health Services for the Montgomery County, Health Department, testified that persons “equally] or more so psychologically distressed” than the appellee function adequately as parents. He rendered no opinion as to which home, the appellee’s or the foster parents’, would prove to be the “best of possible worlds” for Christopher.

The hearings before Judge Tracey also disclosed that MCDSS had determined as early as December 1976 that Christopher should never return to his biological mother. It is clear that MCDSS’s determination to oppose Christopher’s return to the custody of his mother was not a reflection on Mrs. Sanders’s culpability, or lack thereof, for her son’s injuries or upon her ability to care for him adequately. The justification for MCDSS’s unbending stand is, as we have previously indicated, the socio-psychological theory called “psychological parenthood” espoused by Joseph Goldstein, Anna Freud, and Albert J. Solnit, in their book, Beyond the Best Interests of the Child. Under the “psychological parenthood” principle, separation from the natural parent for a sufficient length of time saps the bond of love and affection between child and parent while simultaneously forging a strong psychological link which joins the child to a surrogate parent. Under those given circumstances, the surrogate parent becomes the “psychological parent,” the one to whom the child turns for security, love, and a sense of emotional well-being. After the shift of allegiance by the child to the “psychological parent” is completed, a return to the biological parent would, theoretically, result in severe emotional trauma, detrimental to the child’s best interests. In the case of a child under five (5) yéars of age, such as Christopher, the authors of Beyond the Best Interests of the Child opine that a two (2) month time frame severs forever all psychological ties to the natural mother. J. Goldstein, A. Freud, A. Solnit, Beyond the Best Interests of the Child 41 (1973). Seemingly, because Christopher was ignorant of that theory, he continued to call Rebecca Sanders “mother” long after the two (2) month deadline had passed. MCDSS apparently arbitrarily changed the time frame to six (6) months instead of the two (2) advocated by Goldstein, Freud, and Solnit. For whatever unexplained reasons, MCDSS chose not to enlighten appellee on either the six (6) or two (2) month theories and their dire consequences. Thus, even if Mrs. Sanders grew and developed into a paragon of motherhood, she still could never reclaim Christopher because of the attachment formed by the infant to the “psychological parent.”

When MCDSS presented the theory to Judge John C. Tracey on July 20, 1977, he reacted with caution and skepticism. Judge Tracey said:

“To accept the standard of the ‘best interest theory’ as presented by the .. . [MCDSS], based upon the book by Dr. Goldstein, Dr. Freud, and Dr. Solnick, [sic] Beyond the Best Interest [sic] of the Child ’, without regard to the circumstances for the original taking of the child by the social agency or of the conditions of the mother at that time and during the process of these proceedings, and based solely on the time element to establish the ‘psychological parents’, after which time, ‘six months is excessive’ as set forth in the testimony of Dr. Paul Glass, [Chief of the Section of Child Mental Health for the Health Department of Montgomery County] places an impossible burden on any natural parent which may well lead to a disincentive for agencies and foster families to provide a positive program to the natural parents of help and services which could possibly lead to the return of the child to his or her biological parent. To accept as a certainty a theory presented within Beyond the Best Interest [sic] of the Child', knowing the uniqueness of each factual situation, the fragmentation of services offered by ... [MCDSS], the lack of a positive re-enforcement program to natural parents in all cases, the present apparent lack of co-ordination of services in these proceedings by the evaluators, the workers, the diagnosticians, and by the Court, would be totally untenable and are not supported by the facts and evidence presented in these proceedings.”

Judge Tracey then proceeded to return custody of Christopher to his biological mother, the appellee. On August 8, 1977, this Court granted a Stay of Final Order Pending Appeal.

Unfortunately, there is no such thing as “a simple custody case,” for as we articulated in Mullinix v. Mullinix, 12 Md. App. 402, 412, 278 A. 2d 674, 679 (1971), “[c]ustody cases are like fingerprints because no two are exactly the same.” B. Botein, in his book, Trial Judge, correctly declares, “[a] judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision he renders.” B. Botein, Trial Judge 273 (1952). The Court cannot simply appraise both parties and cavalierly Solomonize the child by dividing “the living child in two, and giv[ing] half to the one, and half to the other.” I Kings 3:25.

The Supreme Court has termed the right to rear one’s child “essential,” Meyer v. Nebraska, 262 U. S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042, 1045 (1923), and one of the “basic civil rights of man.” Skinner v. Oklahoma, 316 U. S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655, 1660 (1942). Child rearing constitutes a right “far more precious ... than property rights.” May v. Anderson, 345 U.S. 528, 533, 73 S. Ct. 840, 843, 97 L. Ed. 1221, 1226 (1953). The custody right of the biological parents is not unfettered because of the parens patriae power of the State to protect its younger citizens from abuse and neglect. Dietrich v. Anderson, 185 Md. at 116, 43 A. 2d at 191.

The authority of the State to remove a child from the home ‘into which he was born is firmly entrenched in Anglo-American law. Under the early English common law, the paterfamilias was entitled to the custody of his offspring as an absolute legal right regardless of the welfare of the child. Thomas, Child Abuse and Neglect Part I: Historical Overview, Legal Matrix, and Social Perspectives, 50 N.C.L. Rey. 293, 299 (1972); Note, Alternatives to “Parental Right” in Child Custody Disputes Involving Third Parties, 73 Yale L. J. 151 (1963). See Ross v. Hoffman, 280 Md. at 176, 372 A. 2d at 586.

The father’s right to custody of his child was brought to the “New World” in a somewhat diluted form. Colonial courts fused the father’s right to his duty to furnish discipline and support. Thomas, Child Abuse and Neglect Part I: Historical Overview, Legal Matrix, and Perspectives, 50 N.C.L. Rev. 293, 299-300 (1972). See generally 2 J. Kent, Commentaries on American Law203-05 (11th ed. 1867). When a parent failed to execute those duties properly, the government could authorize a suitable person to take charge of the child and function as guardian. See Dietrich v. Anderson, 185 Md. at 116, 43 A. 2d at 191; Chapsky v. Wood, 26 Kan. 650, 652-53, 40 Am. Rep. 321, 322 (1881). See generally 2 J. Kent, Commentaries on American Law 203-05 (11th Ed. 1867).

“[Although, in general, parents are intrusted with the custody of the persons, and the education of their children, yet this is done upon the natural presumption, that the children will be properly taken care of, and will be brought up with a due education in literature, and morals, and religion; and that they will be treated with kindness and affection. But, whenever this presumption is removed; whenever (for example) it is found, that a father is guilty of gross ill treatment or cruelty towards his infant children; or that he is in constant habits of drunkenness and blasphemy, or low and gross debauchery; or that he professes atheistical or irreligious principles; [] or that his domestic associations are such as tend to the corruption and contamination of his children; in every such case the Court of Chancery will interfere and deprive him of |the custody of his children, and appoint a suitable, Iperson to act as guardian, and to take care of them, and" to superintend their education/"2 J. Story,: Commentaries on Equity Jurisprudence 702 (7th ed.' 1857) (Footnotes omitted.)
“This principle is based upon the theory that, while the law of nature gives to parents the right to the custody of their own children, a child from the time of birth owes allegiance to the State, and the State in return is obligated to regulate the custody of the child whenever necessary for its welfare.” Ross v. Pick, 199 Md. at 351, 86 A. 2d at 468;

Accord, Dietrich v. Anderson, 185 Md. at 116, 43 A. 2d at 191.

Growing concern for the welfare of the child and the fading, if not absolute disappearance, of the concept of the child as parental property has led to a gradual modification in judicial attitude and approach in custody matters. United States v. Green, 26 Fed. Cas. 30, 31-32 (No. 15256) (C.C.R.I. 1824); In re Bort, 25 Kan. 308, 309-10, 37 Am. Rep. 255, 256-57 (1881). While there is a school of thought that shelves sentiment and ignores the old shibboleth that “bluid is thicker than water,” Maryland has remained loyal to the common law presumption that the right of either natural, inter-married parent is generally superior to that of a third party. Ross v. Hoffman, 280 Md. at 177-79, 372 A. 2d at 586-87; DeGrange v. Kline, 254 Md. at 242-43, 254 A. 2d at 354; Melton v. Connolly, 219 Md. 184, 188, 148 A. 2d 387, 389 (1959); Trenton v. Christ, 216 Md. 418, 420, 140 A. 2d 660, 661 (1958); Ross v. Pick, 199 Md. at 351, 86 A. 2d at 468; In re McNeil, 21 Md. App. 484, 497, 320 A. 2d 57, 64 (1974). See also 2 J. Kent, Commentaries on American Law 203-05 (11th ed. 1867).

“When the dispute is between a biological parent and a third party, it is presumed that the child’s best interest is subserved by custody in the parent. That presumption is overcome and such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child.” Ross v. Hoffman, 280 Md. at 178-79, 372 A. 2d at 587.

See also Thumma v. Hartsook, 239 Md. 38, 41-42, 210 A. 2d 151, 152-53 (1965); Ross v. Pick, 199 Md. at 351, 86 A. 2d at 468.

The burden is cast upon those opposing the natural parents to prove that remaining with the biological family would be deleterious to the child’s best interest. DeGrange v. Kline, 254 Md. at 242-43, 254 A. 2d at 354; Trenton v. Christ, 216 Md. at 420, 140 A. 2d at 661; Ross v. Pick, 199 Md. at 351, 86 A. 2d at 468.

In this State, resolving disputes over child custody is a function of the equity courts. Ross v. Hoffman, 280 Md. at 174, 372 A. 2d at 585; Mullinix v. Mullinix, 12 Md. App. at 409, 278 A. 2d at 678.

“The jurisdiction of a court of equity includes the custody, maintenance, visitation and support of a child. The court may direct who shall have the custody of a child, decide who shall be charged with its support and maintenance, and determine who shall have visitation rights. This jurisdiction is a continuing one, and the court may from time to time set aside or modify its decree or order concerning the child.” Ross v. Hoffman, 280 Md. at 174, 372 A. 2d at 585.

See also Barnard v. Godfrey, 157 Md. at 267, 145 A. at 616; Note, Alternatives to “Parental Bight” in Child Custody Disputes Involving Third Parties, 73 Yale L. J. 151, n. 3 (1963). The court of equity “stands as a guardian of all children, and may interfere at any time and in any way to protect and advance their welfare and interests.” In re Bort, 25 Kan. at 310, 37 Am. Rep. at 257.

“The chancellor in exercising his jurisdiction... does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against anyone. He acts as parens patriae to do what is best for the interest of the child____He is not adjudicating a controversy between adversary parties, to compose private differences____Equity does not concern itself with such disputes in their relation to the disputants. Its concern is for the child.” Finlay v. Finlay, 240 N. Y. 429, 433-34, 148 N. E. 624, 626 (1925).

Although at one time this Court believed itself free, based upon language in Melton v. Connolly, 219 Md. at 188, 148 A. 2d at 389, and Butler v. Perry, 210 Md. 332, 339-40, 123 A. 2d 453, 456 (1956), to substitute our judgment for that of the chancellor in custody disputes, Sullivan v. Auslaender, 12 Md. App. 1, 3, 276 A. 2d 698, 699-700 (1971), we were told most emphatically in Davis v. Davis, 280 Md. 119, 372 A. 2d 231 (1977), reversing 33 Md. App. 295, 364 A. 2d 130 (1976), that our scope of review is limited to whether the trial judge abused his discretion or whether his findings of fact are clearly erroneous. The chancellor’s findings of fact are to be given great weight since he has the parties before him and has “the best opportunity to observe their temper, temperament and demeanor, and so decide what would be for the child’s best interest....” Kartman v. Kartman, 163 Md. at 23, 161 A. at 270. See e.g., Holcomb v. Holcomb, 255 Md. 86, 87-88, 256 A. 2d 886, 887 (1969); Daubert v. Daubert, 239 Md. 303, 309, 211 A. 2d 323, 327 (1965); Trudeau v. Trudeau, 204 Md. at 218, 103 A. 2d at 564; Sibley v. Sibley, 187 Md. 358, 362, 50 A. 2d 128, 130 (1946); Mullinix v. Mullinix, 12 Md. App. at 412, 278 A. 2d at 679. There can be very little constructive or useful precedent on the subject of custody determinations, because each case must depend upon its unique fact pattern. Id.; Barnard v. Godfrey 157 Md. at 267-68, 145 A. at 616. “That is why we must afford great weight to the Chancellor’s opportunity to see and hear the witnesses, ... inasmuch as we are supplied with only the transcribed testimony.” Mullinix v. Mullinix, 12 Md. App. at 412, 278 A. 2d at 679. (Citations omitted.) Accord, Dinkel v. Dinkel, 322 So. 2d 22, 23 (Fla. 1975). This Court may not set aside the factual findings of the chancellor unless they are clearly erroneous, Davis v. Davis, 280 Md. 119, 372 A. 2d 231 (1977), reversing 83 Md. App. 295, 364 A. 2d 130 (1976), and absent a clear showing of abuse of discretion, the decision of the trial judge in a custody case will not be reversed. Id.

Where modification of a custody award is the subject under consideration, equity courts generally base their determinations upon the same factors as those upon which an original award was made, that is, the best interest of the child. Unfortunately, there is no litmus paper test that provides a quick and relatively easy answer to custody matters. Present methods for determining a child’s best interest are time-consuming, involve a multitude of intangible factors that ofttimes are ambiguous. The best interest standard is an amorphous notion, varying with each individual case, and resulting in its being open to attack as little more than judicial prognostication. The fact finder is called upon to evaluate the child’s life chances in each of the homes competing for custody and then to predict with whom the child will be better off in the future. At the bottom line, what is in the child’s best interest equals the fact finder’s best guess.

What critics of the “judicial prognostication” overlook is that the court examines numerous factors and weighs the advantages and disadvantages of the alternative environments. See Chapsky v. Wood, 26 Kan. at 655, 40 Am. Rep. at 325. The court’s prediction is founded upon far more complex methods than reading tea leaves. The criteria for judicial determination includes, but is not limited to, 1) fitness of the parents, Cornwell v. Cornwell, 244 Md. 674, 224 A. 2d 870 (1966); Barnard v. Godfrey, 157 Md. 264, 145 A. 614 (1929); 2) character and reputation of the parties, Hoder v. Hoder, 245 Md. 705, 227 A. 2d 750 (1967); 3) desire of the natural parents and agreements between the parties; Breault v. Breault, 250 Md. 173, 242 A. 2d 116 (1968); McClary v. Follett, 226 Md. 436, 174 A. 2d 66 (1961); Colburn v. Colburn, 20 Md. App. 346, 316 A. 2d 283 (1974); Davis v. Jurney, 145 A. 2d 846 (D.C. Mun. App. 1958); 4) potentiality of maintaining natural family relations, Lippy v. Breidenstein, 249 Md. 415, 240 A. 2d 251 (1968); Melton v. Connolly, supra; Piotrowski v. State, 179 Md. 377, 18 A. 2d 199 (1941); 5) preference of the child, Ross v. Pick, 199 Md. at 353, 86 A. 2d at 469; Young v. Weaver, 185 Md. 328, 44 A. 2d 748 (1945); United States v. Green, 26 Fed. Cas. 30, 31-32 (No. 15256) (C.C.R.I. 1824); 6) material opportunities affecting the future life of the child, Thumma v. Hartsook, supra; Butler v. Perry, supra; Cockerham v. The Children’s Aid Soc’y of Cecil County, 185 Md. 97, 43 A. 2d 197 (1945); Jones v. Stockett, 2 Bland. 409 (Ch. 1838); 7) age, health and sex of the child, Alden v. Alden, 226 Md. 622, 174 A. 2d 793 (1961); Cullotta v. Cullotta, 193 Md. 374, 66 A. 2d 919 (1949); Piotrowski v. State, supra; 8) residences of parents and opportunity for visitation, Rzeszotarski v. Rzeszotarski, 296 A. 2d 431, 440 (D.C. App. 1972); 9) length of separation from the natural parents, Ross v. Hoffman, supra; Melton v. Connolly, supra; Powers v. Hadden, 30 Md. App. 577, 353 A. 2d 641 (1976); and 10) prior voluntary abandonment or surrender, Dietrich v. Anderson, supra; Davis v. Jurney, supra.

While the court considers all the above factors, it will generally not weigh any one to the exclusion of all others. The court should examine the totality of the situation in the alternative environments and avoid focusing on any single factor such as the financial situation, Cockerham v. The Children’s Aid Soc’y of Cecil County, supra, or the length of separation. Powers v. Hadden, supra.

MCDSS, however, contends that in failing to apply the “psychological parenthood” theory to the exclusion of all else, Judge Tracey abused his discretion. In its well-intentioned zeal to lay down simple, definite criteria for ascertaining a child’s best interest, MCDSS has oversimplified ti.c problem. In effect, MCDSS has devised and advocates a formula based on Beyond the Best Interests of the Child. The adoption of the formula would reduce custody disputes to mathematical certainty. By adding a child’s age to the time spent away from his natural parents, MCDSS arrives at the appropriate custody situs. Thus, in an exercise of basic algebraic principles, A (age) + TTtime) = C(custody), all custody cases are easily mathematically resolved.

As with many seemingly simple solutions to complex problems, A + T = C is not a panacea. Custody cases involve too many people, conditions, and human emotions to be reduced summarily to a mere mathematical process. The intricacies of the many human relationships that are interwoven into each custody dispute defy the type of simplification proposed by MCDSS.

“One may illustrate the essential idea by a spiderweb, pull a strand here, and a complex pattern of adjustments runs through the whole web. Pull another strand from a different angle, and another complex pattern results.”

Fuller, Collective Bargaining and the Arbitrator, Wis. L. Rev. 3, 33 (1963). One patent fallacy in the A + T = C formula is that it leaves no room for adjustments to individual situations.

We have previously rejected the notion of examining a child’s age and time apart from his natural parents while ignoring every other aspect of the circumstances and personalities involved in the case. Powers v. Hadden, supra. Obviously, the length of time apart is a factor to be considered in weighing the merits of each potential home. Id. at 583, 353 A. 2d at 645.

“[T]ies of blood weaken, and ties of companionship strengthen, by lapse of time. . . . Consequently, the longer the period of time required for a parent to prove reformation, the less chance he or she has to reclaim a lost child.” Id.

Unrestrained application of the “psychological parenthood” theory can lead to absurd results as evidenced by the views espoused by Dr. Glass in his testimony in the instant case. A hypothetical was posed to the doctor in which a child was removed from his home by kidnappers and kept safe and well cared for by the criminals for an extended period of time. Dr. Glass said that it would be in the child’s best interest to remain with the kidnappers since psychologically they would be his family. While the probability of the average youngster being carried off by kidnappers or gypsies is slight, the instance of natural, adoptive or foster parents fleeing the jurisdiction with a child they have been ordered to relinquish is growing increasingly common. To allow a person to abscond with a child and then judicially condone the action after a pre-established time period has lapsed is to place a premium on disobedience of court orders and simultaneously to reduce the child to “personal property” to which any person can acquire some sort of “squatter’s rights.” Bennett v. Jeffreys, 40 N.Y.2d 543, 552, n. 2,356 N.E.2d 277, 285, n. 2,387 N.Y.S.2d 821, 829, n.2 (1976).

“The resolution of cases must not provide incentives for those likely to take the law into their own hands. Thus, those who obtain custody of children unlawfully, particularly by kidnapping, violence, or flight from the jurisdiction of the courts, must be deterred. Society may not reward, except at its peril, the lawless because the passage of time has made correction inexpedient.” Id. at 550, 356 N.E.2d at 284, 387 N.Y.S.2d at 827.

Evidence offered by social workers, psychologists and psychiatrists may be necessary in custody cases. The equity court, however, is entitled to weigh that evidence along with contradictory testimony and its own observations. Reliance upon “the auxiliary services of psychiatrists, psychologists, and trained social workers ... should not be too obsequious or routine or the experts too casual.” Ross v. Hoffman, 280 Md. at 191, 372 A. 2d at 594. Such reliance could lead the courts, in acts of misapplied psychology, to separate unjustly family members.

“Particularly important is this caution where one or both parties may have the means to retain their own experts and where publicly compensated experts or experts compensated by only one side have uncurbed leave to express opinions which may be subjective or are not narrowly controlled by the underlying facts.” Bennett v. Jeffreys, 40 N.Y.2d at 549, 356 N.E.2d at 283, 387 N.Y.S.2d at 827.

Caution is particularly apropos in the case sub judice where Mrs. Sanders was financially unable to match the weight of experts brought forth by the MCDSS.

The appellants stress that Christopher is now in a home offering superior material advantages. Mr. and Mrs. Shepard, his foster parents, appear to love the child and have expressed an interest in adopting him. Judge Tracey, however, was not clearly erroneous in refusing to award custody to the MCDSS because of Mrs. Sanders’s financial plight. The fact that parents are poor is not itself a reason for placing a child in foster care. Cockerham v. The Children’s Aid Soc’y of Cecil County, 185 Md. at 101, 43 A. 2d at 199. Although the foster parents have expressed an interest in adopting Christopher, the trial court had no guarantee such adoption would be consummated. We point out that there is no requirement that the foster parents adopt Christopher, and that there is no assurance that Christopher will remain in the same foster home. To leave him in the “legal limbo,” Bennett v. Jeffreys, 40 N.Y.2d at 551, 356 N.E.2d at 284, 387 N.Y.S.2d at 828, of foster care when an adequate, if not utopian, home is offered by the natural mother hardly seems to be in anyone’s “best interest,” much less the child’s.

We think Judge Tracey’s findings of fact were not clearly erroneous, if, indeed, they be erroneous at all. The evidence before the trial judge clearly substantiates Mrs. Sanders’s claim that she was never the abuser, and that although the Sanders’s home may once have been a dangerous environment for Christopher, such is no longer the case. “Conditions which might justify relieving a parent temporarily of the custody of his child would not necessarily support absolute and permanent transfer of the child to a stranger.” Roy v. Holmes, 111 So. 2d 468, 470 (Fla. 1959).

MCDSS is legitimately concerned with preventing Christopher from once again falling victim to the battered child syndrome. Its concern, however, has been carried to the point of protecting Christopher from a danger that no longer exists.

“[Sjocial workers sometimes develop ‘rescue fantasies’ in well-intended efforts to save helpless children from bad parents. These emotions tend to obscure objective evaluations of the strengths of the child’s own home.” Thomas, Child Abuse and Neglect Part I: Historical Overview, Legal Matrix, and Social Perspectives, 50 N.C.L. Rev. 293, 347 (1972).

The record reveals that Rebecca Sanders is now in a position to offer her son a safe, comfortable, loving home. The home will not be the theoretical ideal, but few households ever achieve such a lofty state. In Christopher’s eyes, appellee is still the woman he thinks of as mother, and he should be reunited with her.

We hold that Judge Tracey did not abuse his discretion in directing the return of Christopher to the custody to his mother.

Order affirmed.

Costs to be paid by appellants, Montgomery County Department of Social Services and Edwin Owen Sanders, Jr.

Mandate to issue forthwith.

      . Section 3-801 (e) (2) of the Md. Cts. & Jud. Proc. Code Ann. states in pertinent part:
      “(e) ‘Child in need of assistancei is a child who requires the assistance of the court because
      (2) His parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and his problems provided, however, a child shall not be deemed to be in need of assistance for the sole reason he is being furnished nonmedical remedial care and treatment recognized by State law.”

      . The English translation reads:
      “Parental authority should consist or be exercised in affection, not in atrocity.”

      . Sanders testified, "I’ve always been taught, even from my childhood, that, you know, once you bite a person, bite them back. And that usually breaks them of the habit. But I did not want to bite Chris on the ear for fear that I might hurt his ear. So I bit him on the cheek. Well, I didn’t think that I had bitten him that hard on the cheek.”

      . The record indicates that Mrs. Sanders gave birth in September 1976, and the child was either still-born or died shortly after birth. No explanation is supplied in the record as to the cause of death, but, in any event, no finger of suspicion has been pointed toward Mrs. Sanders.

      . Md. Cts. & Jud. Proc. Code Ann. § 2-102 (a) (1974) provides:
      “If advisable in a specific proceeding, a court may appoint an auditor, surveyor, court reporter, assistant counsel for the state, counsel fora party if authorized by law or rule... and may require his presence m court.” (Emphasis supplied.)

      . Voltaire (1694-1778), Candide, ch. 1 (1759). As used by James Branch Cabell (1879-1958) in The Silver Stallion, ch. 26 (1926) the phrase reads “the best of ail possible worlds.” (Emphasis supplied.)

      . Joseph Goldstein, Law School, Yale University.
      Anna Freud, Hampstead Child-Therapy Clinic.
      Albert J. Solnit, Child Study Center, Yale University.

      . It was not until the Victorian Era that a father lost a custody dispute in England. The dubious award for “first loser” was presented to the famous poet, Percy Bysshe Shelley (1792-1822), by Lord Eldon in Shelley v. Westbrooke, 37 Eng. Rep. 850 (Ch. 1817). Lord Eldon described Shelley’s atheistic beliefs as vicious and immoral and refused to give him custody of his children.

      . The Seventeenth Century laws of Massachusetts, Connecticut, and Virginia specifically authorized local magistrates to indenture children of the indigent despite parental objections. Mnookin, Child Custody Adjudication: Judicial Functions in the Face of Indetermacy, 39 Law & Contemp. Prob. 226, 240 (Summer 1975).

      . Mr. Justice Story’s pronouncement that atheists or persons with “irreligious principles” are unfit parents is without the ambit of the First Amendment. The. Constitutional right to Freedom of Religion carries with ¡ it the concommitlant right to “freedom from religion.” See Epperson v. Arkansas, 393 U. S. 97, 89 S. Ct. 266, 21 L.Ed.2d 228 (1968); Daniel v. Waters, 515 F. 2d 485, 490 (1975) on remand, 399 F. Supp. 510 (1975). See generally Watson v. Jones, 80 U. S. (13 Wall.) 679, 728, 20 L. Ed. 666, 676 (1871).

      . Sir Walter Scott (1771-1832), in Guy Mannering ch. 38 (1815), used the word “bluid” not the current “blood.”

      . See generally Stanley v. Illinois, 405 U. S. 645, 92 S. Ct. 1208, 31 L.Ed.2d 551 (1972); Marshall v. Stefanides, 17 Md. App. 364, 302 A. 2d 682 (1973).

      . We opined in Mullinix v. Mullinix, 12 Md. App. at 411, 278 A. 2d at 679, that a child is not a prize or award that is presented to the unerrant parent.

      . If the formula process were to become the law, custody would be determined by the psychologist or psychiatrist along with the social worker. The court would be reduced to the mere ministerial function of signing the order or decree.

      . The extent to which MCDSS carries the concept of "psychological parenthood” is illustrated by the following hypothetical question put to its counsel on oral argument. “Assume that a young widow with a ten (10) month old child contracts a highly contagious disease which requires her isolation for a period of six (6) months. Further assume that during that period of time the infant does not visit her and that the child is well cared for, including love and affection, by foster parents. Under those conditions, upon the young mother’s release from the hospital should the infant be returned to her custody?” The answer of counsel was, “No” because of the psychological parent relationship that would have sprung up between child and foster parent. Counsel cud, however, say that under the fact pattern he would recommend to the county that it pay for closed circuit television visitation between mother and child.


source: Caselaw Access Project

author: Davidson, J.,

license: Public Domain

text:
    THE MACKE COMPANY v. HOUSING MANAGEMENT COMPANY JACK M. GOLDMAN et ux. v. HOUSING MANAGEMENT COMPANY
    [No. 39,
    September Term, 1977.]

      Decided January 11, 1978.

      The cause was submitted on briefs to Davidson, Moore and Lowe, JJ.
    Submitted by Hugh E. Donovan and Donahue. & Ehrmantraut for appellant The Macke Company. Submitted by CourtlandK. Townsend, Jr., and John Burgess Walsh, Jr., for appellants Jack Goldman and Blanche Goldman.
    Submitted by George P. Haldeman and Brault, Graham, Scott & Brault for appellees.
   Davidson, J.,

delivered the opinion of the Court.

On 2 July 1972, Jack M. Goldman was injured when he slipped and fell on the wet floor of the laundry room of the apartment building in which he lived. In the Circuit Court for Montgomery County, the appellants, he and his wife Blanche Goldman (the Goldmans), sued, insofar as here relevant, the appellee, Housing Management Company (Housing), for damages and loss of consortium. At the close of the Goldman’s case, Judge Plummer M. Shearin directed a verdict for Housing. On appeal, the Goldmans’ sole contention is that the trial court erred in granting the directed verdict.

The record shows that on 2 December 1970, the Goldmans leased an apartment in a 265 unit apartment building owned by University Towers II, a joint venture (University) and managed by Housing. That lease agreement provided in pertinent part:

“Tenant shall not install or use any washing machine in or about the premises except coin washing machines that are placed in the building at the Landlord’s direction. Tenant agrees to comply with all rules placed in effect by the Landlord for the operation of said coin washing machines.”

On 15 December 1971, University entered into a five year lease with Macke for the rental of a room located in the “Laundry Area” in the basement of the building. That lease provided in pertinent part that, beginning 1 February 1972, Macke would “have the sole and exclusive control and possession of the leased premises and the sole and exclusive right to install therein such automatic laundry equipment as [Macke] shall deem adequate and necessary for the use of the tenants of” the building. Further, the lease provided that Macke would at all times retain title to and ownership of the equipment and have the right to remove the equipment upon termination of the lease. In addition, the lease required Macke to pay rent of “Five Hundred Dollars per month, or 50% of total monthly receipts, whichever is the greater”; to install, service and maintain laundry equipment at its own costs; to assume the risk of loss or damage to the equipment; to “maintain liability insurance covering injury to persons and damage to property arising out of its negligence or fault”; and to “be responsible for such injury or damage to the extent of its insurance coverage.” The lease further required University to prohibit the installation or use of other laundry equipment in the building; to light the area “upon and adjacent to that which the automatic laundry equipment is located”; to furnish all utilities and facilities required to operate the equipment; to notify Macke if and when the equipment ceases to operate normally, and to “provide janitorial services and maintenance for the area adjacent to that upon which the equipment is located.” Pursuant to an oral agreement between Housing and Macke, janitorial services in the laundry room itself were performed by employees of Housing who were paid by Macke for providing these services.

I

In a negligence action, it is necessary to show a duty or obligation to protect from injury, a failure to discharge that duty, and that that failure was the proximate cause of injury or loss. Here the Goldmans contend solely that the evidence was sufficient to show that Housing had a duty to protect them from injury in the laundry room.

The Court of Appeals and this Court have recognized that a landlord has an obligation to use reasonable care to protect' tenants from injury in those portions of the premises used in common by the tenants and controlled by the landlord. Thus the Court of Appeals has said:

“Where a landlord leases separate portions of a property to different tenants and reserves under his control... parts of the property for use in common by all the tenants, he must use ordinary care and diligence to maintain the retained parts in reasonably safe condition____The duty stems from the responsibility engendered in the landlord by his having extended an invitation, express or implied, to use the portions of the property retained by him.” (Citations omitted.)

In accord with this principle, landlords have been held liable for improper maintenance of facilities and for failure to remedy defects in equipment controlled by them and furnished for common use by the tenants.

In Maryland, no standard has been articulated by which to determine whether a landlord has reserved control over property used in common. It has been said that a landlord is in control of premises used in common if he has “the authority to manage, direct, superintend, restrict or regulate.” Generally, the question of whether a landlord has reserved control is one of fact. Whether a landlord has retained control over the premises is essentially a matter of intention * to be determined in the light of all the significant circumstances, particularly the leases and practices of the parties.

Here the evidence, viewed in the light most favorable to the Goldmans, was more than adequate to show that the parties intended Macke to control the leased laundry room. The lease between Macke and Housing specifically provided that Macke would: 1) control and possess the leased laundry area; 2) hold title to all of the laundry equipment; 3) service and maintain the equipment; 4) remove the equipment upon expiration of the lease; and 5) carry liability insurance. As a matter of practice, Macke maintained the laundry area.

In contrast, there was no evidence to show or support a rational inference that the parties intended Housing to control the leased laundry room. The facts that the lease between Housing and the Goldmans prohibited them from using washers on the premises other than those “placed in the building at the Landlord’s direction,” and that tenants were given keys to the laundry room, indicate that the landlord intended to provide a common laundry area, but do not indicate that the landlord itself intended to control that area. While that lease required the Goldmans to comply with rules “placed in effect” by the landlord, the record does not show that any such rules were made. Moreover, the subsequent lease between Housing and Macke contains no authorization for Housing to promulgate such rules. Under these circumstances, there is nothing to show that Macke or Housing intended the latter to control the laundry room through the promulgation of rules.

The lease between Housing and Macke provided that Housing would furnish lights and utilities to the laundry room, provide maintenance and janitorial services to adjacent areas, and notify Macke when the equipment stopped operating. Housing fulfilled the latter obligation by installing in the laundry room a telephone connected to its switchboard. This phone was used by tenants to register their complaints, which were then forwarded by the switchboard operator to Macke. Finally, the lease provided that the landlord could, under certain circumstances, receive 50 percent of Macke’s total monthly receipts as rent. These factors, either alone or in combination, are, under the present circumstances, too insignificant to establish that Macke or Housing intended Housing to retain control over the leased laundry room.

Thus, there was insufficient evidence to show that the landlord had “the authority to manage, direct, superintend, restrict or regulate” the leased laundry room. Accordingly, the evidence was insufficient to establish that Housing had a duty to protect the Goldmans from injury in the laundry room. The trial court did not err in granting Housing’s motion for a directed verdict.

II

The Goldmans next contend that Housing owed them an additional duty of care arising from their “voluntary assumption” of the task of receiving and transmitting to Macke tenants’ complaints about the laundry area and equipment. They maintain that Housing’s failure to discharge this obligation is actionable negligence. They conclude that the trial court erred in granting Housing’s motion for a directed verdict. We do not agree.

The record shows that on 2 July 1972 Mr. Goldman fell on a wet area of the laundry room floor. There was a stream of water, three or four inches wide, coming from washer 35. A tenant had complained to the switchboard operator six or seven times between 1 January 1972 and 2 July 1972 that - washer 35 leaked. On or about 3 July 1972, Macke made a service call and found that washer 35 had a broken pump gasket, a defect which could have resulted in sufficient leakage to form a puddle of water. This evidence did not show or support a rational inference that Housing failed to transmit the complaints about washer 35.

In contrast, there was evidence to show that the bulk of service calls from the building came from the desk or management. Although some of Macke’s service records for the period in question had been destroyed, the remaining records showed “various service calls at the apartment” between 11 May 1972 and 22 June 1972.

Under the present circumstances, even if we assume that Housing owed the Goldmans a duty of transmitting complaints, the evidence was insufficient to establish that Housing had failed to discharge that duty. The trial court did not err in granting Housing’s motion for a directed verdict

Judgment as to Housing Management Company affirmed.

Costs to be paid by appellants.

Appeal of The Macke Company dismissed.

Costs to be equally divided between the parties.

      . The Goldmans’ suit against The Macke Company (Macke) was settled. The parties having agreecTthat, as a result, the appeal in the case of The Macke Company v. Housing Management Company has become moot, and that the only matter pending before this Court is the appeal in the case of Goldman v. Housing Management Company, the appeal in the case of The Macke Company v. Housing Management Company is hereby dismissed.

      . No rules for the operation of the machines appear in the record extract.

      . The record does not contain any evidence to show that the laundry room was used for any other purpose by Macke, University or Housing.

      . Posted in the laundry room was a phone number to call for refunds or service. A call to this number did not involve Housing. It may be assumed that the posted number was Macke’s.

      . Tenants were given keys to the laundry area.

      . Scott v. Watson, 278 Md. 160, 165, 359 A. 2d 548, 552 (1976); Peroti v. Williams, 258 Md. 663, 669, 267 A. 2d 114, 118 (1970).

      . Scott v. Watson, 278 Md. 160, 165, 359 A. 2d 548, 552 (1976); Whitcomb v. Mason, 102 Md. 275, 282, 62 A. 749, 751 (1906); Bernstein v. Reforzo, 37 Md. App. 724, 729, 379 A. 2d 181, 185 (1977).

      . Landay v. Cohn, 220 Md. 24, 27, 150 A. 2d 739, 740-41 (1959).

      . Macke Laundry Service Co. of Maryland v. Weber, 267 Md. 426, 431, 298 A. 2d 27, 30 (1972); Kinnier v. J.R.M. Adams, Inc., 142 Md. 305, 307-08, 120 A. 838, 839 (1923).

      . Kirby v. Zlotnick, 278 A. 2d 822, 824 (Conn. 1971).

      . Kirby v. Zlotnick, 278 A. 2d 822, 824 (Conn. 1971).

      . See Kinnier v. J.R.M. Adams, Inc., 142 Md. 305, 308-09, 120 A. 838, 840 (1923). Accord, Kirby v. Zlotnick, 278 A. 2d 822, 824 (Conn. 1971); Gula v. Gawel, 218 N.E.2d 42, 44-45 (Ill. App. 1966); Busick v. Home Owners Loan Corp., 18 A. 2d 190, 191 (N.H. 1941); Ritto v. Goldberg, 265 N.E.2d 772, 773-74 (N.Y. 1970); DeClara v. Barber Steamship Lines, 132 N.E.2d 871, 876 (N.Y. 1956); Fort Worth & D.C. Ry. v. Mills, 140 S.W.2d 513, 516-17 (Tx. Ct. App. 1940).

      . Beahm v. Shortall, 279 Md. 321, 341-42, 368 A. 2d 1005, 1017 (1977); Baulsir v. Sugar, 266 Md. 390, 394-95, 293 A. 2d 253, 255 (1972); Keene v. Arlan’s Dep’t Store of Baltimore, Inc., 35 Md. App. 250, 253-54, 370 A. 2d 124, 126-27 (1977).

      . The questions of whether a landlord may delegate a duty of care or whether an apparent agency existed between Macke and Housing were not raised and are not decided here.


author: Mason, J.,

text:
    ROBERT RAY JONES v. STATE OF MARYLAND
    [No. 90,
    September Term, 1977.]

      Decided January 11, 1978.

    The cause was argued before  Powers, Melvin and Mason, JJ.

      Michael R. Malloy, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Steven Sacks, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

Appellant, Robert Ray Jones, was convicted by a jury in the Criminal Court of Baltimore of first degree murder, robbery with a deadly weapon (two counts) and several handgun violations. Appellant’s principal assignment of error is that the trial court abused its discretion in denying his motion for severance.

According to the evidence adduced at trial, Danny Miller, James Johnson and appellant met on December 26, 1975 and discussed committing a “stick-up” to obtain money for drugs. After driving around searching for a suitable place to rob, they proceeded to the Heritage Savings & Loan Association on Deepdene Road in Baltimore City. Johnson and Miller remained in the car behind the building, while appellant proceeded toward the savings & loan. Diana Hevesy, the branch manager, testified that at approximately 4:00 P.M., she and Linda Trueblood, a teller, were in a bullet proof office, when a man entered the building, pulled a gun and demanded she open the door of the office. Disregarding his order, she dropped to the floor and directed Trueblood to activate the alarm, whereupon the would-be robber fled. Subsequently, Trueblood selected appellant’s photograph from an array of pictures and positively identified him in a line-up and at trial.

The threesome then decided to rob a pharmacy on 37th Street and Falls Road. They parked the car half a block away, and again appellant left the car and approached the pharmacy. A clerk testified that at approximately 5:30 P.M. a man entered the store and, after purchasing a pack of gum, “came up with a gun” and said “you know what this is.” The gunman ordered Herman Glassband, the pharmacist, to surrender his wallet and open the register. Later, both the clerk and the pharmacist positively identified appellant in a police line-up and at trial.

After determining that the thirty dollars taken from the pharmacy was not enough to buy drugs, they drove to Ruby’s Cut Rate Liquors on Greenmount Avenue and 30th Street. Mildred Sentz, an employee, testified that at approximately 6:30 P.M. a man entered the store to buy cigarettes, and, as she was about to hand them to him from behind a bullet proof window, he pointed a gun and demanded money. She immediately fell to the floor, hid behind a desk and called to the proprietor, Manuel Kolker. Sentz then heard three or four “bip-like” sounds followed by a loud noise similar to a firecracker. She saw Mr. Kolker slump to the floor bleeding from the chest and head. Moments later Officer Michael Baptist, an off-duty Baltimore City Police officer, entered the store and saw Mr. Kolker lying in a pool of blood. At trial Officer Baptist positively identified appellant as the man he observed leaving the liquor store just before he entered.

According to Miller, when appellant returned to the car he stated that “he had to shoot the man” because the man tried to shoot him.

Appellant did not take the stand or offer any evidence in his behalf.

In this State joinder and severance of criminal trials are governed by Maryland Rule 745 c, which provides:

If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, upon its own motion or the motion of any party, order separate trials of counts, charging documents or defendants, or grant any other relief justice requires.

Under this rule severance is committed to the discretion of the trial judge, and the purpose of the rule is to avoid prejudice before the fact by segmenting trials. See Note, Joint and Single Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 553, 556 (1965). In McKnight v. State, 280 Md. 604 (1977), where there was a similar offense joinder, the Court of Appeals explicitly articulated the standard to guide the trial court in the exercise of its discretion when a motion for severance is made. The Court held “that a defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials.” Id. at 612.

In determining whether the evidence of similar but unrelated offenses would have been mutually admissible in separate trials, the Court applied the “other crimes” rule as explicated in Ross v. State, 276 Md. 664, 669-70 (1976):

The frequently enunciated general rule in this state, followed uniformly elsewhere, is that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible ... . This principle is merely an application of the policy rule prohibiting the initial introduction by the prosecution of evidence of bad character. Thus, the state may not present evidence of other criminal acts of the accused unless the evidence is “substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.”
There are exceptions to this general exclusionary rule which, perhaps, are equally well-recognized. Thus, evidence of other crimes may be admitted when it tends to establish (1) motive, (2) intent, (3) absence of mistake, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial.... Additional exceptions have • also been recognized: When the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other, and to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial. ..; and to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. (Citations omitted).

See generally, C. McCormick, Evidence, § 190 (2d ed. 1972).

In McKnight v. State, supra, four similar but unrelated robberies were committed during a one month period in the same neighborhood where both McKnight and the victims lived. Three of the four victims were men in their late fifties or sixties; three of the victims identified McKnight; and the modus operandi of the assailants was similar in each robbery. The State argued that McKnight suffered no prejudice from the trial judge’s refusal to grant a severance because the four offenses “were so nearly identical in method as to earmark the commission of those robberies as the handiwork of the appellant.” Id. at 613. The Court found that the evidence offered did not come within the handiwork exception of the general exclusionary rule, and that the evidence offered to prove McKnight’s guilt on each of the four robbery charges would not have been admissible against him had he been prosecuted in separate trials. The Court concluded that the denial of his motion for severance constituted an abuse of discretion. See also United States v. Foutz, 540 F. 2d 733 (4th Cir. 1976).

Not unlike McKnight, the State argues that the trial court did not abuse its discretion in denying appellant’s motion for severance because the evidence produced to prove appellant’s guilt on each of the offenses would have been admissible at sepárate trials for the same offenses to establish appellant’s motive and intent or a common scheme under the “other crimes” rule. Specifically the State contends that:

From this evidence the jury could rationally infer that the three men devised a scheme of committing a robbery or robberies to secure enough money to be divided equally between them so that each of them could purchase drugs. It is clear that a rational inference could be drawn that the first two robberies were unsuccessful or only partially successful in that enough money had not yet been obtained for this purpose. Once the liquor store had been robbed, it was then that enough money was available to purchase drugs. Hence, the appellee submits that the various offenses were not unrelated but were admissible to establish a common scheme, motive and intent on the part of the three men including the appellant in furtherance of their preconceived plan to commit store or bank holdups to obtain sufficient money for the purchase of drugs.

Under the facts of this case, the State’s reliance on intent and motive as a basis for admitting evidence of other crimes is misplaced. The fact that evidence may fit one of the certified exceptions to the “other crimes” rule does not mean that it is automatically admissible. The problem is one of balancing and not pigeonholing as discussed by Dean McCormick:

[I]f the judges, trial and appellate, content themselves with merely determining whether the particular evidence of other crimes does or does not fit in one of the approved classes, they may lose sight of the underlying policy of protecting the accused against unfair prejudice. The policy may evaporate through the interstices of the classification.
Accordingly, some of the wiser opinions (especially recent ones) recognize that the problem is not merely one of pigeonholing but one of balancing, on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.

C. McCormick, Evidence, § 190 at 453. (2d ed. 1972). See Hoes v. State, 35 Md. App. 61, 65-67 (1977); Mollar v. State, 25 Md. App. 291, 294 (1975). See generally, United States v. Goodwin, 492 F. 2d 1141, 1150 (5th Cir. 1974).

When appellant entered the three establishments, armed with a gun demanding money, his motive and intent were fairly obvious, and the admissibility of the other offenses with respect thereto was unnecessary and irrelevant to any contested issue in the case. See generally, Annot., Admissibility in Robbery Prosecution of Evidence of other Robberies, 42 A.L.R.2d 854 (1955). Although evidence of other crimes is admissible to show intent and motive, it was not needed nor admissible for such purpose in this case. Appellant’s conduct was unequivocal, and his intent and motive could be inferred from his conduct alone. People v. McKinney, 24 N.Y.2d 180, 247 N.E.2d 244 (1969); State v. Gilligan, 92 Conn. 526, 103 A. 649, 652-53 (1918). Accordingly, we conclude this was not a permissible use of other crimes evidence because its prejudicial effect clearly outweighed its probative value.

We now turn to the State’s argument that evidence of other crimes was admissible to prove a common scheme or plan. As mentioned in Ross, an exception to the “other crimes” rule is a “common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.” To prove a common scheme or plan, some relationship or connection between the crimes in question is required; mere similarity is not enough.

The added element, then, must be, not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.

2 J. Wigmore, Evidence, § 304, at 202-03 (3d ed. 1940). (Emphasis in original). See State v. Buxton, 324 Mo. 78, 22 S.W.2d 635 (1929); Atnip v. State, 564 P. 2d 660 (Okla. Crim. App. 1977).

The evidence here discloses each robbery was separate and distinct and not so related to each other that proof of one tended to prove the other. If it were not for Miller’s testimony that he, Johnson and appellant met and discussed committing a stick-up to obtain money for drugs, the facts in this case would be no different from those in McKnight. All that we have here is a series of similar but unrelated robberies which do not have the common features necessary to establish a common scheme. Each of the establishments robbed was randomly selected on the impulse of the moment without the existence of a preconceived plan. That the purpose of the robberies was to obtain money to buy drugs is too common an occurrence to evidence a common scheme or plan within the contemplation of the “other crimes” rule. Evidence merely showing a general scheme or plan to commit a stick-up to obtain money for drugs is no more than evidence of a general criminal disposition to commit a stick-up to acquire money, for any reason, rather than a specific purposeful plan which includes among its objects the specific crimes charged. This is the kind of prejudice the rule against admitting the evidence of other crimes was designed to prevent. Ross v. State, supra.

Even if we were to conclude, which we do not, that there was a common plan or scheme, the evidence of other crimes would not have been admissible in this case. One of the purposes for which evidence of other criminal acts may be offered is:

To prove the existence of a larger continuing plan, scheme, or conspiracy, of which the present crime on trial is a part. This will be relevant as showing motive, and hence the doing of the criminal act, the identity of the actor, and his intention, where any of these is in dispute.

C. McCormick, Evidence, § 190 at 448-49 (2d ed. 1972) (Emphasis supplied). Here motive, criminal agency, identity and intent were not in dispute. A plea of not guilty cannot, by itself, be construed as raising such a keen dispute on these issues as to justify the admission of this type of evidence. United States v. Fierson, 419 F. 2d 1020, 1022-23 (7th Cir. 1969). Consequently, the only real effect of such evidence is to prejudice appellant and add to the State’s already sufficient evidence on these issues.

With regard to the State’s actual need for evidence of other crimes, we agree with the following:

That courts must guard against improper incursions on the general rule against admitting other-crimes evidence is so critically important, of course, not because such evidence has no probative value, but for the very reason that such evidence may have very substantial strength — not cognizable in law — in establishing a defendant’s identity in the minds of the jurors. This Court has never hesitated to approve the admission of other-crimes evidence when that evidence has been relevant under one of the exceptions to the general rule. We have recognized, however, and we must continue to recognize, that the various categories of exceptions — intent, design or plan, identity, etc. — are not magic passwords whose mere incantation will open wide the courtroom doors to whatever evidence may be offered in their names. To the contrary, each exception has been carefully carved out of the general rule to serve a limited judicial and prosecutorial purpose.

United States v. Goodwin, supra, 494 F. 2d at 1155.

Accordingly, we conclude that appellant was sufficiently prejudiced by the joinder of the offenses in question, and that the denial of his motion for severance constituted an abuse of discretion.

Appellant additionally contends that his conviction of and sentence for felony murder and the attempted robbery and handgun convictions violated the prohibition against double jeopardy. Newton v. State, 280 Md. 260 (1977).

Because we remand this case for new, separate trials, we need not reach this issue. On retrial, however, the trial court should consider this issue in light of Frye v. State, 37 Md. App. 476 (1977).

Judgments reversed.

Case remanded for new trials.

Costs to be paid by Mayor and City Council of Baltimore.

      . In exchange for Mr. Miller’s testimony, the State agreed not to prosecute him for the homicide of Manuel Kolker.

      . Apparently, in Mr. Kolker’s attempt to shoot the assailant, his gun misfired four times.

      . Joinder and severance of criminal trials had been governed by Maryland Rules.734 and 735 which were controlling when this case was tried and which, by the revision of Chapter 700, effective July 1,1977, were consolidated into Rule 745. In pertinent part, the new rule is virtually identical to its precursors.