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In re Ashley S.

Court of Appeals of Maryland

May 30, 2013

In re Ashley S. & Caitlyn S.

Bell, C.J. Harrell Battaglia Greene Adkins Barbera McDonald JJ.


McDonald, J.

A parent has a fundamental right to rear his or her children without unwarranted interference by the State. This liberty interest, protected by the Fourteenth Amendment to the United States Constitution, [1] occupies "a unique place in our legal culture, given the centrality of family life as the focus for personal meaning and responsibility" and is "essential to the orderly pursuit of happiness."[2] But this right is not absolute. It must be balanced against society's obligation, exercised through the State, to ensure the child's welfare.[3]

In this case, two young sisters who had been the subject of various reports of neglect by their mother over a period of two years were placed in emergency shelter care by the juvenile court at the request of the county department of social services. The girls were later determined to be children in need of assistance ("CINA") by the court, and, as a result, were placed in foster care, pending implementation of a plan for their permanent placement – a plan that preferably would result in family reunification.

After the girls had been in foster care for nearly a year, the Court of Special Appeals reversed the juvenile court's decision with respect to the CINA designation of the younger sister, and the foster care placement of both girls, due to the insufficiency of the court's factual findings.

After the intermediate appellate court's decision, the juvenile court, at the request of the department of social services, again determined that the younger sister was a CINA – a determination that the mother did not appeal. A few months later, the juvenile court again took up the matter of deciding on a plan for the girls' permanent placement. In doing so, the court considered both their positive experiences with their foster parent and their mother's failure to cooperate with court orders and social workers during the entire period in which the children were in foster care – including both the seven and a half months under the order that had been reversed, as well as the subsequent seven months when the girls were in foster care under an order that had not been challenged. As a result, the court approved a change of the permanency plan from reunification with the mother to adoption for both girls.

The mother contends that the court should not have considered – or, at least, should have significantly discounted – the events that took place during their foster care placement under the original order that was reversed. We do not agree, and hold that the juvenile court, in determining the girls' permanency plan, properly regarded all the relevant circumstances and facts before it in reaching a decision that was in the children's best interests.


CINA - Statutory Framework

Procedures governing the designation of a child as CINA are set forth in Maryland Code, Courts & Judicial Proceedings Article ("CJ"), §3-801 et seq. Related provisions concerning out-of-home placement and foster care are found in Maryland Code, Family Law Article ("FL"), §5-524 et seq.

When a child suffers abuse or neglect or has a developmental or mental disability and lacks a caretaker to give proper attention to his or her needs, a local department of social services may petition the juvenile court for a determination that the child is a CINA. CJ §§3-801(f), 3-809(a). Upon receipt of a petition, the court is required to hold an adjudicatory hearing to determine whether the department's factual allegations are true. CJ §§3-801(c), 3-817(a). If the court finds that the allegations are accurate, a disposition hearing is held to determine whether the child is, in fact, a CINA, and, if so, what intervention is necessary to protect the child's health, safety, and well-being. CJ §§3-801(m), 3-819(a).

Once the court determines that a child is a CINA, it may leave the child in the child's current custody; commit the child to the custody of a parent, a relative, or another suitable individual; or commit the child to the custody of the local department of social services or the Department of Health and Mental Hygiene for placement in foster, kinship, group, or residential treatment care. CJ §3-819(b)(1)(iii); FL §§5-501(m), 5-525(b). If the child is committed to the local department for out-of-home placement, the court must hold, within 11 months, a hearing to determine a "perm anenc y plan" for the child. CJ §3-82 3(b)(1). Th is establishes "the direction in which the parent, agencies, and the court will work in terms of reaching a satisfactory conclusion to the situation." In re Yve S., 373 Md. 551, 582, 819 A.2d 1030 (2003). It is an integral part of "the statutory scheme designed to expedite the movement of Maryland's child ren from foster care to permanent living, and hopefully, family arrangement." In re Damon M., 362 Md. 429, 436, 765 A.2d 627 (2001).

A permanency plan may include reunification of the child with the parent or guardian (unless the local department is the guardian); placing the child with relatives for custody or adoption; custody or adoption by the current foster parent or other approved adoptive family; or another appropriate permanent living arrangement. FL §5-5 25(f)(2); CJ §3-823 (e)(1). In developing a permanency plan, the juvenile court is to give primary consideration to the "best interests of the child." Id. The statutes specify certain factors to guide the analysis:

(i) the child's ability to be safe and healthy in the home of the child's pa rent;
(ii) the child's attachment and emotion al ties to the child's natural parents and siblings;
(iii) the child's emotional attachment to the child's current caregiver and caregiver's family;
(iv) the length of time the child has resided with the current caregiver;
(v) the potential emotional, developmental, and educational harm to the child if moved from the child's current placement; and
(vi) the potential harm to the child by remaining in State custody for an excessive period of time.

FL §5-525(f)(1); CJ §3-823(e)(2).

The statutory scheme presumes that, "unless there are compelling circum stances to the contrary, the plan should be to work toward reunification, as it is presumed that it is in the best interest of a child to be returned to his or her natural parent." In re Yve S., 373 Md. at 582. However, a plan other than reunification is appropriate where "weighty" circumstances require such a modification. In re Adoption/Guardianship of Cadence B., 417 Md. 146, 157, 9 A.3d 14 (2010) (citing In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 496, 937 A.2d 177 (2007)).

A review hearing concerning the permanency plan is to be held at least every six months for updates and amendments to the original plan. CJ §3-823(h). At the hearing, the juvenile court is to assess the continuing necessity for, and appropriateness of, the prior commitment of the child; whether reasonable efforts have been made to finalize the child's permanency plan; the extent of progress in alleviating or mitigating the parent's problems; a reasonable date by which the child may be returned home, placed in a pre-adoptive home, or placed under legal guardianship; and the safety of the child and any measures needed to protect the child. CJ §3-823(h)(2). The court is to change the permanency plan when it would be in the child's best interests to do so. CJ §3-823(h)(2)(vi).

If the court approves a permanency plan of adoption, the local department must file a petition for guardianship within 30 days (or 60 days if the department does not support the plan), and a hearing on termination of parental rights is held in lieu of the six-month review hearing. CJ §3-823(g).

Ashley S. and Caitlyn S.

Ashley S. was born to Sharee S. ("Ms. S.")[4] on July 8, 1999. Caitlyn S. was born to Ms. S. on February 8, 2008. The girls have different fathers, neither of whom is a party to this appeal. Their situation comes before this Court after numerous contacts with the Montgomery County Department of Health and Human Services ("the Department"), a series of CINA hearings in the juvenile court, and an earlier appeal to the Court of Special Appeals. Due consideration of the determinations of those courts requires that we recount that journey in some detail.

September 2008 - January 2011: Several Safety Plans

In September 2008, Ashley and Caitlyn – then ages 9 years and 7 months, respectively – came to the attention of the Department after reports that their mother had been leaving them alone after school and on weekends for a month. As a result of that neglect, Ms. S. was arrested for criminal neglect, a "no-contact" order was issued, [5] and the children were removed from the home. After Ms. S. agreed to a written "safety plan" to provide appropriate supervision for the children, they were returned to her. Subsequently, officials at Ashley's school became increasingly concerned about her behavioral problems. That year, the school referred Ashley to a crisis center after she expressed suicidal thoughts. Although Ms. S. took Ashley to the center, they left before Ashley received any treatment.

In May 2009, Ashley was caught stealing her teacher's mobile phone – Ashley's third disciplinary incident at the school related to theft. The school principal met with Ms. S. and told her that the matter had been referred to the police and that Ashley was facing suspension.[6] The principal suggested to Ms. S. that, as an alternative to this outcome, Ashley be enrolled in a youth support program called "Maryland Choices." Ms. S. instead offered to place Ashley in a therapy program through her church. The principal tentatively agreed to this plan, provided that Ms. S. delivered proof of Ashley's participation.

During this time, Ashley reported to the school that her mother hit her with a belt and a closed fist, and physically disciplined Caitlyn as well. Ashley said she was scared of her mother and did not want to go home. These allegations were forwarded to the Child Welfare Services division of the Department, which began an investigation on May 20, 2009. Ashley confirmed her earlier statements to the agency. Following numerous unsuccessful attempts by the agency to contact Ms. S., a meeting was finally held in July 2009, after which Ms. S. agreed to a second safety plan under which she would cease physical discipline of her children and would have Ashley assessed for therapy. Ms. S. did not follow through with these promises, but Child Welfare Services closed the case after Ashley subsequently reported that there were no further problems in the home.

In December 2010, Ashley told school officials that the family was often staying in hotels or at friends' homes because her mother was concerned that people were watching or following them; her mother also sought to avoid "strange calls" by refusing to answer the telephone.[7] The Department was contacted and the investigation was referred to Melanie Rabkin, a social worker with Child Welfare Services. On January 3, 2011, after unsuccessful attempts to reach Ms. S., Ms. Rabkin interviewed Ashley, who related that her mother continued to hit her with a belt and had hit Caitlyn with her hand; Ashley also further described her mother's belief that they were being pursued by her co-workers. Ms. Rabkin described Ashley's demeanor at this time as "quiet" and "sad."

Ms. S. thereafter agreed to yet another safety plan, under which she would obtain an attorney, discuss Ashley's educational needs with her teachers, and arrange for Child Welfare Services to meet with Caitlyn. How ever, Ms. S. did not respond to follow-up phone calls and e-mails.

February 2011: Emergency Shelter Care and Initial CINA Petitions

Ashley failed to attend school during the second half of January 2011. On February 1, after the Department was unable to locate either child, it filed petitions with the Circuit Court for Montgomery County, sitting as a juvenile court, to have the sisters designated as CINA. On February 7, the Department located the children and learned that Ms. S. had withheld Ashley from school since January 19 without notifying school authorities. At that point, Ashley had missed more than 20 percent of the school year and was considered by the school to be a truant.

On February 7, 2011, the Department immediately filed a request for emergency shelter care – i.e., the temporary placement of a child outside of the home before the determination or disposition of CINA status. CJ §3-801(y). The request was granted by the juvenile court the following day. Citing "the emergent nature of the situation" because the mother had taken the girls out of the state for weeks without informing the Department, and noting the Department's concern that the mother would do this again, the court on February 10, 2011 placed the children in the temporary care and custody of the Department with limited visitation by Ms. S. After the Department took custody of the girls, it was discovered that Caitlyn had experienced a hearing loss that had gone untreated. The Department filed amended CINA petitions with respect to the girls on April 8, 2011.

April - May 2011: Initial CINA Adjudication Hearing

The juvenile court held an adjudicatory proceeding on the CINA petition over the course of several days in late April and early May, 2011. At the hearing, three witnesses from Ashley's school testified – the school principal, one of Ashley's special education teachers, and a counselor. They described her school absences and related academic struggles, problems at home, melancholy moods, and difficulties with socialization.

Ashley's teacher assessed her as two years behind in math and one year behind in reading. Improving Ashley's grades was "an uphill battle, " the teacher testified, and the educational gap between her and her peers was growing because of her excessive absences.

In response to Ashley's poor grades, the principal testified, meetings had been held at the school to determine accommodations and services that could be provided to help her improve. It was proposed that Ashley be assessed for an individualized education plan. Ms. S., however, had opposed this idea and denied that Ashley had special education needs. After Ashley had been placed in emergency foster care, the assessment had been approved by court order. Ashley was given small-group instruction and extra time to complete her assignments with tutors, and she participated in a reading comprehension group.

The teacher testified that, after being placed in foster care, Ashley had begun studying, preparing for tests, and completing her homework. As a result of the accommodations she had received and her improved school habits, Ashley was showing progress in her assessments and getting better grades.

The school counselor testified about Ashley's home life, particularly Ms. S.'s use of physical discipline and Ms. S.'s stated fears about being followed that caused her to take the girls to stay in hotels. During Ashley's three-week absence from school that winter, Ms. S. had taken her children on a trip to visit relatives in New York, New Jersey, and North Carolina, although Ashley said she would have preferred to stay in school. Ashley had told the counselor that she no longer wished to live with her mother.

The teacher described Ashley's demeanor while she was living with her mother. She characterized the child as "irritable, " "tired, " "moody, " "quiet, " "withdrawn, " and unresponsive to questions. In general, the teacher said, Ashley had acted as if she "wanted to be left alone." The teacher was also concerned about Ashley's hygiene and appearance, noting that she often wore clothes that were too small. By contrast, while in foster care, Ashley's attitude had improved; recently, Ashley had made friends and was "beaming, " "happy, " "laughing, " and "cracking jokes with some of the students."

A therapist for the Department, who was accepted by the juvenile court as a mental health expert, testified that Ashley was experiencing "ongoing trauma." The therapist diagnosed Ashley with adjustment and learning disorders, anxiety, and depression; Ashley also showed signs of attention deficit hyperactivity disorder and post-traumatic stress disorder. The witness recommended therapy and further psychological assessment.

Ms. S. also testified at the hearing. With regard to her disciplinary methods, she said that she resorted to corporal punishment with a belt only after discussion and non-physical punishment proved unsuccessful at ending a child's bad behavior. Although she admitted that there were "gaps in Ashley's education, " Ms. S. stated that she opposed the school's recommendation for an assessment and an individualized education plan because Ashley's problems were not "to the extent where she couldn't grasp the concept" and a private tutoring center could provide any needed services.

Ms. S. explained that she took the girls on the three-week out-of-state trip because "of a number of snowstorms, " intermittent school closings, and the lack of power in her house. She said that the children wished to see their relatives and described Ashley as "very upbeat" and "very excited" about the trip. Ms. S. admitted that she should have notified the school that Ashley would be absent and to obtain school work for the time away. She also acknowledged that Ashley should not have missed so much school and promised to "make every effort" to ensure her future attendance.

Ms. S. denied telling Ashley that they were being followed. She stated that she often bought Ashley new clothes and that Ashley generally dressed appropriately, except when she chose not to "wear the clothing that she had available to her" in favor of older clothing. In discussing her visits with the children since she had lost custody of them, Ms. S. said that Caitlyn was happy to see her and Ashley was also increasingly willing to engage in conversation. At the end of one visit, Ms. S. related, Caitlyn cried "incessantly" because she wanted to go home with her mother.

May 2011: Initial CINA Disposition and Permanency Plan - Appeal

On May 10, 2011, the court entered an order finding that the Department had proven the allegations of neglect in its CINA petition. Based on that determination, on May 18, the court designated both children as CINA and committed them to the Department for placement in foster care. The court established the girls' permanency plans as reunification with Ms. S. and expressed hope that Ms. S. would quickly resolve all safety concerns so that she could regain custody within a few months.

Ms. S. appealed the order to the Court of Special Appeals.

October 2011: Permanency Planning Hearing

While Ms. S.'s appeal was pending, the juvenile court conducted a permanency planning hearing on October 21, 2011. Ms. S. failed to appear, although her counsel was present. The Department recommended to the court that the children remain in its custody, with supervised visitation by Ms. S. A Department social worker, Stephanie Madrigal, who had been assigned to the girls' case since April, testified that, since the proceedings in April 2011, Ms. S. had refused to address any of the court's safety ...

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