Circuit Court for Montgomery County Case No. 06-Z-11-000026
Bell, C.J. Harrell Battaglia Greene Adkins Barbera McDonald JJ. [*]
There is a presumption in our parental rights' jurisprudence that a continuation of the parental relationship is in a child's best interests. Yet, again, in this case, the child and the parent pursue antagonistic goals. The mother argues her parental rights should not have been terminated, while the child seeks adoption by his foster parents, with whom he has lived three quarters of his life.
To be sure, this case presents an unusual situation. After the child spent twenty-seven months in foster care without progress by his parents toward reunification, or a consistently active involvement by other relatives, the court decided it was time to pursue a plan of adoption by non-relatives. This order—changing the permanency plan to adoption— triggered the filing of the termination of parental rights ("TPR") petition. The mother, however, appealed the plan change and sought a stay of the TPR case. She succeeded on appeal but not on the motion to stay. As a result, by the time the Court of Special Appeals ruled in the mother's favor on the plan change, her parental rights had been terminated.
She argues the court should not have terminated her parental rights while her appeal of the permanency plan change was pending. But whether to stay a TPR case is within the juvenile court's discretion. In this case, the court did not abuse its discretion because a stay would not have been in this child's best interests. Nor did the court err when—in terminating parental rights—it took into account the child's attachment to his foster parents.
At the heart of this case is a five-year-old boy, Jayden G., born on September 26, 2007. Surrounding him, in the context of this case, are his two older siblings—Daeshawn E. and Victoria G.; and three adults—Jayden's mother, Jennifer S.; his father, Justin G.;and Jayden's paternal grandmother, Darlene G. We will refer to Ms. S. as the "Mother, " Mr. G. as the "Father, " and Darlene G. as the "Grandmother."
On February 17, 2009, the three children were found to be Children in Need of Assistance ("CINA") and placed in foster care. Daeshawn and Victoria went to live in one foster home, while Jayden was placed in another. The Department worked long and hard toward the children's reunification with the Mother or the Father. When it became clear, however, that reunification was not likely, the juvenile court ordered a plan of adoption by a non-relative for Jayden and granted limited guardianship over Daeshawn and Victoria to the Grandmother. The Mother appealed the plan of adoption, but while the appeal was pending, the juvenile court terminated her parental rights. The Mother's appeal of Jayden's plan change, however, was successful. This is somewhat of an anomalous result: the Mother won her CINA appeal, but only after her parental rights had been terminated.
The CINA and TPR Statutes
Two intricately connected, yet separate legal mechanisms, come into play in this case. CINA proceedings are governed by sections 3-801 through 3-830 of the Courts and Judicial Proceedings Article ("CJP"), and TPR proceedings are governed by sections 5-313 through 5-328 of the Family Law Article ("FL"). Before we delve into the facts and the procedural history of the case, we give a brief overview of this statutory framework.
When a local department of social services receives a complaint of child abuse or neglect, it is required by statute to file a petition with the juvenile court for a determination of whether the child is CINA. CJP §§ 3-801(f), 3-809(a). If the allegations turn out to be true, and the child is committed to an out-of-home placement, the court must hold a hearing to determine a "permanency plan" for the child. CJP §3-823(b)(1). We explained in In re Damon M. that a permanency plan "sets the tone for the parties and the court" and "provides the goal toward which [they] are committed to work." 362 Md. 429, 436, 765 A.2d 624, 627 (2001). In this regard, the permanency plan is "an integral part of the statutory scheme designed to expedite the movement of Maryland's children from foster care to a permanent living, and hopefully, family arrangement." Id.
There are five permanency plans to choose from "in descending order of priority:" (1) reunification with a parent or guardian; (2) placement with relatives for adoption, custody, or guardianship; (3) adoption by a non-relative; (4) custody or guardianship by a non-relative; or (5) another planned permanent living arrangement. CJP § 3-823(e)(1)(i). In determining which plan would be in the "best interests of the child, " courts consider the child's emotional, developmental, and educational needs. See CJP § 3-823(e)(2); FL § 5-525(f)(1).
After the initial permanency planning hearing, the juvenile court is required to review the permanency plan at least every six months. CJP § 3-823(h)(1). At those review hearings, the court makes findings as to "the continuing necessity for and appropriateness of the commitment, " "whether reasonable efforts have been made to finalize the permanency plan that is in effect, " and "the extent of progress that has been made toward alleviating or mitigating the causes necessitating commitment." CJP § 3-823(h)(2). The court must "[c]hange the permanency plan if a change . . . would be in the child's best interest, " and must be cognizant of the statutory requirement that "[e]very reasonable effort . . . be made to effectuate a permanent placement for the child within 24 months after the date of initial placement." CJP § 3-823(h)(2)(vi) & (h)(3).
Many CINA cases do not end with reunification with a parent. But even if "it is determined that reunification is not possible and that adoption is in the child's best interests, the juvenile court lacks jurisdiction to finalize this plan." In re Adoption/Guardianship No. 10941, 335 Md. 99, 106, 642 A.2d 201, 205 (1994) (citing In re Darius A., 47 Md.App. 232, 235, 422 A.2d 71, 72 (1980)). "[U]nless the parents consent to the adoption of their child, the department is required to petition the circuit court for guardianship pursuant to F.L. § 5-313." Id.
To obtain guardianship, the local department files a TPR petition, which "seek[s] to terminate the existing parental relationship and transfer to itself, hopefully for re-transfer to an adoptive family, the parental rights that emanate from that relationship." In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 496, 937 A.2d 177, 188–89 (2007). Like with the permanency plan considerations in the CINA context, in ruling on a TPR petition, the juvenile court is guided by the child's best interest. Compare CJP § 3-823(e), with FL § 5-323(d).
The CINA Journey of Jayden and His Siblings and the TPR
Three separate CINA cases overlap in this case: Jayden's, Daeshawn's, and Victoria's. There was also a TPR proceeding, which resulted in the termination of the Mother's parental rights to Jayden. Then, there were two appeals with respect to Jayden: one of the permanency plan change and the other of the TPR proceeding. We examine this complex procedural history below, focusing on the facts pertinent to this appeal and saving some details for the analysis section.
How Jayden and His Siblings Became CINA
The involvement of the Montgomery County Department of Health and Human Services (the "Department") in the lives of Jayden and his older siblings began in May of 2008. At that time, the Mother requested and was granted a protective order against the Father, "alleging that [he] had punched and kicked her, and jabbed a car key into her leg, " and "had put a cutter to her throat, stating that he wanted to kill her." These allegations prompted the Department to open an investigation to determine whether the children were receiving proper care and attention.
On January 30, 2009, while the Department's investigation was ongoing, Montgomery County police received phone messages from the Mother, in which she stated that the Father "was trying to poison her and her children were trying to communicate with her by underlining certain sentences in certain books." The next day, while staying at the Betty Ann Krahnke Center, the Mother jumped out of a window, claiming "they were after me." She was later found in the woods behind the Center by the police. After that incident, she was placed in the psychiatric unit at Washington Adventist Hospital.
On February 2, 2009, the Department met with the Mother at the hospital to discuss possible placement options for the children. The Mother "adamantly requested that the children not be placed with [the Father or the Grandmother], " alleging that they "had been trying to poison her." She suggested two relative placement options, neither one of which was acceptable, however. With no viable family placement options, the Department placed the children in shelter care and filed CINA petitions.
The CINA petition involving Jayden was heard on February 17, 2009 by the Circuit Court for Montgomery County, sitting as Juvenile Court. Based on the facts stipulated by the parties, in which the Mother and the Father agreed that they were unable or unwilling to care for Jayden, the court found Jayden to be a Child in Need of Assistance. Specifically, the court stated that "it is not currently possible to return the child to the home of the Mother because she is unable to give the Child proper care and attention, and the father is incarcerated."
Around the same time, the court made similar findings with respect to Victoria and Daeshawn and ordered all three children to be committed to the Department for placement in foster care. The Mother and the Father were ordered to undergo psychological and psychiatric evaluations, and to participate in a number of programs, designed to help parents achieve reunification with their children.
The children were placed in different foster homes. Daeshawn and Victoria changed placements three times. They stayed twenty-one months with the first foster family until there were allegations of abuse, and nine months with the second. On July 28, 2011, they were placed with the Grandmother. Jayden, however, has lived with the same foster parents since his original placement with them on February 3, 2009.
The Permanency Planning Hearings
During the next thirty-four months, from the time Jayden and his siblings were found CINA to December 21, 2011, when the Mother's parental rights to Jayden were terminated, the juvenile court conducted seven permanency planning hearings. Following the initial hearing, held on July 30, 2009, the court ordered a permanency plan of reunification with either parent. This plan was maintained at the next three review hearings, conducted on December 10, 2009; March 22, 2010; and June 11, 2010.
On September 20, 2010, after fourteen months of pursuing a sole plan of reunification with at least one of the parents, the juvenile court ordered that the children's permanency plans change to a concurrent plan of reunification with the Mother and placement with a relative for custody and guardianship. Eight months later, on May 25, 2011, the court established new permanency plans for the children: (1) custody and guardianship by a relative for Daeshawn and Victoria and (2) adoption by a non-relative for Jayden. We review these developments below.
Reunification with Either Parent
A plan of reunification with either the Mother or the Father was ordered when the children were first found CINA and was maintained for over a year. The evidence presented at the three permanency planning review hearings during that time was substantially the same: the Mother made some effort to give the Department hope that reunification was possible, but she was unable or unwilling to comply with most of the requirements imposed by the court. The Department's reports and recommendations, adopted by the juvenile court, focused on four areas: visitation, employment, mental health, and placement of the children with relatives.
Out of these, visitation is the area in which the Mother was more compliant, at least at the beginning. During the first three months the children were in foster care, she visited with them consistently, demonstrating affection, and informing the Department if she was running late. According to the Department, during that initial time in foster care, "[a]ll three children love[d] their mother and remain[ed] extremely attached to her despite their separation." As time went on, however, the Mother began to neglect her visitation obligations. In the March 2010 report, adopted by the court, the Department noted that, although the Mother "started off diligent in her pursuit to be reunified with her children, " "[f]or the last five months, she has been less consistent with visits."
The situation with employment was even less encouraging. The Mother remained unemployed by the first permanency review hearing. At the time of the second permanency plan review hearing, she was employed at a Target, but by the fourth hearing, she was again without housing or employment.
Perhaps most worrisome was the Mother's inability to address her mental health needs. After the incident when she was found in the woods behind Betty Ann Krahnke Center, "exhibiting disorganized and delusional behaviors, " she was diagnosed with acute stress and depression and hospitalized at a psychiatric unit for one month "due to suicidal ideations." She was also diagnosed with depression by history, obsessive compulsive personality traits, histrionic features, and narcissistic personality features. The psychologist, who evaluated her, recommended that she "continue seeing her psychiatrist and therapist" and "enroll in the Abused Persons Program." She would not follow up on treatment, however, missing appointments without ever rescheduling. The Mother concedes she "did not comply with the requirement that she obtain psychiatric treatment and medication."
Finally, despite the Department's efforts to find a relative placement for the children, initially, the parents were not able to provide the Department with any adequate placement options. With respect to the Grandmother specifically, the Mother "reported that [she] is not an option and has a past criminal history and . . . would not prevent [the Father] from having contact with the children." In the first six months, the Grandmother "only attended one visit on June 9, 2009 when she accompanied [the Mother]." Between July and December 2009, the Grandmother "attended several visits with the children . . . and . . . expressed an interest in having two children placed with her while the parents work towards reunification."
Reunification with the Mother
A much bleaker picture of the parents' situation was presented at the fourth permanency planning hearing, conducted on June 11, 2010. In contrast to the Department's position in the earlier reports, where it consistently emphasized the goal of reunification with a parent, the Department began its fourth report by pointing out that "the children have now been in care for 16 months, " but neither the Mother nor the Father "has satisfactorily demonstrated that they are in a position to have the children return to live with either one of them."
By then, Jayden "ha[d] been placed out of the home 15 of the last 22 months, " and the Department was authorized by statute to file a TPR petition. It explained that it had not done so because it was still exploring relative placements for the children. The Department was awaiting results of the Grandmother's home study, and was planning to undertake a home study of a Mother's cousin. In light of these developments, the Department requested, and the juvenile court reaffirmed, a permanency plan of reunification with the Mother, but not with the Father, for all three children.
Concurrent Plan of Reunification and Placement with a Relative
The fifth permanency planning hearing took place on September 21, 2010, nineteen months after Jayden and his siblings were found CINA and placed in foster care. At that time, in accordance with the Department's recommendation, the court ordered that Jayden's permanency plan be changed from reunification with the Mother to a concurrent plan of reunification with her and placement with a Relative or Guardian.
The reason for the change was that Jayden had "been in care for 20 months, " but neither the Father nor the Mother had made meaningful progress towards reunification. The Department did observe, however, that the Mother showed "improvement over the past 3 months in terms of her attitude towards the Department, in accepting responsibility for the position in which she finds herself today, and in setting better boundaries with [the Father]."
The Department continued to explore family placement options. The Grandmother failed to "follow up" on the home study request by Prince George's County Department of Social Services because the Mother "reportedly told her that the Department was just looking at reunification." By the time of this permanency planning hearing, the Grandmother had "moved to Montgomery County . . . into a home that can accommodate all three of the children." The Department expressed its intent to consider her as a placement.
The Abduction and Its Ramifications
The sixth permanency planning hearing was originally scheduled for December 21, 2010 but was rescheduled twice: first to February 8, 2011, then to April 15, 2011. During that time, certain important developments took place. First, on October 12, 2010, the Grandmother and the Mother made allegations that Victoria had been physically abused by her foster parents. These allegations culminated in the Father and the Mother's abducting the children from a scheduled visit.
The Department attributed some of the fault for this incident to the Grandmother and no longer wished to consider her as a relative placement option, filing a motion to that effect. On November 1, 2010, the juvenile court granted the motion. The court also ordered that the visitation between the Father and the children be terminated and the visitation with the Mother continue but be supervised.
Three months later, on February 8, 2011, the juvenile court rescinded the order rejecting the Grandmother as a placement resource. The court also ordered supervised visitation between the Father, Victoria and Daeshawn, but not Jayden. Although the order did not address the Grandmother's right to visit with the children specifically, her visitation was conditioned on the Father's. Accordingly, in suspending the Father's visitation with Jayden, the order also suspended the Grandmother's visitation with him.
The actual permanency planning review hearing took place two months later. On April 29, 2011, the court ordered the Department to "promptly conduct a Home Inspection of the home of [the Grandmother] for Jayden, Victoria, and Daeshawn for kinship care[.]" At the hearing on May 19, 2011, the Department indicated that it considered the Grandmother to be suitable for custody and guardianship over Daeshawn and Victoria.
With respect to Jayden, the Department stated: "The Department is still asking for a plan of adoption by a non-relative for Jayden. [T]he reason for that would be Jayden has bonded with the [foster parents]. He's spent two thirds of his life there. And the Department sees that as a very positive development for him." After reviewing the FL § 5-525(f)(1) factors, the juvenile court agreed with the Department and "concluded that it was in Jayden's best interest to change his permanency plan from a concurrent plan of reunification and placement with a relative, to adoption by a non-relative."
The Events Following the Plan Change
The Mother timely appealed the plan change to the Court of Special Appeals. She argued that the juvenile court abused its discretion in changing Jayden's permanency plan to adoption by a non-relative, when it could have placed Jayden with the Grandmother. Specifically, she alleged that the juvenile court gave too much weight to Jayden's time in foster care and the bond with his foster parents and failed to assess Jayden's ties with his siblings "as supportive of a plan of custody and guardianship."
On June 24, 2011, while the Mother's appeal was pending in the Court of Special Appeals, the Department petitioned the juvenile court for guardianship over Jayden with the right to consent to adoption or other planned permanent living arrangement. On July 13, 2011, the Mother sought a stay of the TPR case, arguing that proceeding with the TPR "would lead to the possibility of [the TPR court] terminating [her] parental rights only to have the appellate court decide the . . . pending appeal in her favor and remand the case."On August 5, 2011, the juvenile court denied the Mother's motion.
The TPR trial took place in November and lasted five days: from November 14 through November 18, 2011. On December 21, 2011, the court granted the Department's petition, finding that the parents were unfit, that exceptional circumstances existed which made termination of their parental rights in Jayden's best interest, and that terminating the parental rights was in Jayden's best interest.
The Mother's appeal of Jayden's permanency plan change, however, was not resolved until January 19, 2012, which was almost exactly one month after her parental rights were terminated. The Court of Special Appeals held there was insufficient evidence "to support the circuit court's finding that it is in Jayden's best interest to be separated from his family." Thus, the intermediate appellate court vacated the juvenile court's order and remanded the case for a determination of which permanency plan was in Jayden's best interest.
The TPR case proceeded on a parallel appellate track, and the Court of Special Appeals affirmed the termination of the Mother's parental rights in an unreported opinion filed on August 7, 2012. The Mother filed a petition for writ of certiorari to this Court on September 6, 2012. On November 16, 2012, we granted certiorari, In re Adoption/Guardianship of Jayden G., 429 Md. 303, 55 A.3d 906 (2012), to consider both questions she presented:
1. Did the Court of Special Appeals err in affirming the circuit court's order terminating parental rights, where the circuit court proceeded with the termination of parental rights hearing while the appeal challenging the CINA order changing the permanency plan from reunification to nonrelative adoption was still pending in the Court of Special Appeals, and where ultimately the order changing the permanency plan was vacated?
2. Did the circuit court err in basing its decision to terminate parental rights on Jayden's prospect of being adopted by, as well as the quality of care being provided by, his current foster care providers?
Despite the complex factual and procedural history, the first issue is easy to formulate: was it appropriate for the juvenile court to proceed with the TPR hearing while the CINA order, changing the permanency plan from reunification to non-relative adoption, was still pending in the Court of Special Appeals? We answer this question in the affirmative, but do so with the recognition that whether to stay the TPR proceedings pending a permanency plan appeal is within the juvenile court's discretion. In this case, the court did not abuse its discretion in proceeding with the TPR case. The court also did not err when, in finding that the termination of the Mother's parental rights was in Jayden's best interests, it took into consideration Jayden's strong attachment to his foster parents.
The Right to Parent is Fundamental But Not Absolute
The relationship between a parent and a child holds a special place in the law. As the United States Supreme Court has observed, "[t]he history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children." Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 1541 (1972). The role of parents in caring for their children is "established beyond debate as an enduring American tradition." Id., 92 S.Ct. at 1541–42. In recognition of this principle, the Supreme Court and this Court have long protected the parents' right "to make decisions concerning the care, custody, and control of their children" under the Fourteenth Amendment of the United States Constitution. Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060 (2000); see also Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626 (1923); In re Adoption/Guardianship No. 10941, 335 Md. 99, 112–13, 642 A.2d 201, 208 (1994).
Another paramount consideration is the child's best interest. Recently, in In re Adoption/Guardianship of Ta'Niya C., we reviewed "33 years of Maryland jurisprudence on the topic" and concluded that "the child's best interest has always been the transcendent standard in adoption, third-party custody cases, and TPR proceedings." 417 Md. 90, 112, 8 A.3d 745, 758 (2010).
There is an interesting interplay between the parent's right to parent and the child's best interests. "The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504 (1979). Moreover, "historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children." Id. As a result, there is "a presumption of law and fact—that it is in the best ...