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In re Adoption/Guardianship of L.B.

Court of Special Appeals of Maryland

September 1, 2016


          Graeff, Friedman, Eyler, James R. (Retired, Specially Assigned), JJ.


          Graeff, J.

         K.H., appellant, challenges an order issued by the Circuit Court for Harford County terminating her parental rights ("TPR") to her two sons, L.B. and I.L.[1] Ms. H. presents three questions for our review:

1. Where the mother had another child in her custody, did the court err by terminating parental rights, where the court failed to make and articulate a finding about parental unfitness or exceptional circumstances prior to determining what was in the subject children's best interests?
2. Did the court err by failing to place the children in the care of relatives rather than granting guardianship to the Department of Social Services?
3. Did the court err in terminating parental rights where the mother had remedied the problems leading to the removal of her children from her care, and the problems were typical not exceptional?

         For the reasons set forth below, we shall affirm judgment of the circuit court.


         Initiation of the Department of Social Services' Interest in L.B.

         The Harford County Department of Social Services ("DSS" or the "Department"), an appellee, took interest in L.B. at the time of his birth, when it received information that Ms. H. was using Percocet during her pregnancy. That allegation of neglect ultimately was ruled "unsubstantiated" by DSS, but due to concerns about Ms. H.'s mental health and substance abuse, a DSS caseworker instituted a "Safety Plan, " which required that Ms. H. not be left alone with her children.[2] DSS subsequently transferred the case to the Continuing Services department so further services could be provided to the family.

         In March 2011, Bethany Fisher, a DSS Child Protective Services caseworker assigned to L.B.'s case, had L.B.'s parents sign a new Safety Plan. Ms. Fisher was concerned about Ms. H.'s mental health because Ms. H. was diagnosed with bipolar disorder, but she was not receiving treatment or taking her medication. Ms. Fisher also was concerned about Ms. H.'s "continuing use of drugs." Accordingly, the terms of the March 24, 2011, Safety Plan required that Ms. H. continue her mental health treatment and submit to substance abuse evaluation and urinalysis.

         Ms. H. partially complied with the March 2011 Safety Plan. She "did get back into mental health treatment, " but "she was not consistent[ly] going to her counseling sessions." Ms. H. completed substance abuse evaluation, and she submitted to random urinalysis. Ms. Fisher referred Ms. H. to various providers of mental health services, substance abuse services, infant and toddler resources, housing resources, and food assistance, but Ms. H. only "complied with some of them."

         In April 2011, Ms. Fisher implemented a "Service Plan, " which "identifie[d] the tasks [DSS was] asking the family to do long term." The terms of the April 2011 Service Plan were similar to those of the March 2011 Safety Plan. As before, Ms. H. only partially complied with the plan.

         By June 9, 2011, Ms. H. was "making progress, " so she and Ms. Fisher executed a new Safety Plan that permitted Ms. H. to be alone with her children. In June 2011, DSS received a new report indicating that Ms. H. was not properly supervising her older child, S.M.[3] Accordingly, Ms. Fisher updated the Safety Plan to require that Ms. H. "appropriately supervise the children at all times."

         At some point between August and September 2011, Ms. H. and her children were evicted from their home. Ms. H. stayed with friends and family until she could find permanent housing. During that period of time, there were some "domestic violence issues going on, " and in August 2011, Ms. H. filed for a protective order against L.B.'s father, Mr. B.

         DSS Places L.B. in Foster Care

         On October 3, 2011, Ms. Fisher contacted Ms. H.'s mother, J.H., who informed her that, on the previous evening, Ms. H. and Mr. B. had come to her apartment in an intoxicated state. Ms. Fisher subsequently had difficulty contacting Ms. H. When she called on October 6, 2011, Mr. B. answered Ms. H.'s phone, even though there was an active protective order prohibiting him from being in contact with Ms. H. Ms. Fisher went to Mr. B.'s mother's house and found L.B., who was "very dirty" and had "red bumps or a rash on his forehead." Ms. H.'s family told Ms. Fisher that Ms. H. had "shown up" the night before with a bottle of alcohol in her purse, and she appeared to be intoxicated. Ms. Fisher then "issued shelter care papers, " removed L.B. from Ms. H.'s care, and placed him in foster care.[4] She later testified that L.B. was removed because Ms. H. "was not being compliant with her mental health treatment. There were numerous concerns being reported to the department about her alcohol abuse. The family did not have stable housing. [And L.B.] had not been taken to the pediatrician in several months."

         L.B.'s foster parent later testified that, when L.B. was first placed with her, he was behind on his immunizations, was experiencing difficulty sleeping, and had a red rash on his face and a staph infection "around his diaper area." She testified that her experience with Ms. H. had been unpleasant and confrontational. At one point, she filed for a Peace Order after Ms. H. posted "threatening remarks" on Facebook.

         On October 7, 2011, Ms. Fisher petitioned the circuit court to designate L.B. a Child in Need of Assistance ("CINA").[5] On October 26, 2011, the court found that DSS's allegations were substantiated and designated L.B. a CINA.

         At some point after L.B. was placed in foster care, Ms. H.'s mother, J.H., offered to be "a resource" for him. Ms. Fisher conducted a "home study, " but she did not approve her request to care for L.B. because J.H. was already caring for Ms. H.'s other child, and Ms. Fisher was concerned about J.H.'s ability to care for both at the same time. Another DSS worker who participated in the evaluation testified that they had further concerns that J.H. had mental health issues of her own, that she tried to cover up Ms. H.'s mental health issues, and she was not "going to be able to work with the department and be honest about the relationship that she had with [Ms. H]."

         Ms. Fisher continued working with Ms. H. after L.B. was removed from her care. Although Ms. H. attended weekly visits with L.B., Ms. Fisher noted that Ms. H. "was not making very much progress regarding her housing situation" or "doing very much regarding trying to get things together for [L.B.] to be able to come back home to her." Ms. H. submitted to random urinalysis and tested negative each time, but she failed to attend her mental health sessions.

         On October 7, 2011, Ms. Fisher transferred L.B.'s case to Renee Little in the DSS foster care in-take unit.[6] Ms. Little supervised biweekly visits, noting that, "for the most part, " Ms. H. was attentive and appropriate around L.B.

         In November 2011, Ms. H. obtained Section 8 housing with the assistance of DSS. DSS conducted a home inspection and deemed the home appropriate for L.B.

         On November 15, 2011, a psychologist conducted a psychological evaluation of Ms. H. The psychologist testified that Ms. H. was a particularly difficult client to interview, and he had concerns about her credibility. He diagnosed Ms. H. "as having Bipolar One Disorder, " although he noted this diagnosis was "tentative" because she denied "any history of symptoms that would be consistent." He also diagnosed Ms. H. as having "poly substance abuse" and "a personality disorder with histrionic and anti-social features." The psychologist testified that he was concerned that, "without treatment, her prognosis was very poor."

         On December 6, 2011, Ms. H. signed a Service Agreement requiring that she maintain stable and safe housing, secure employment, submit to random urinalysis, and submit to psychological evaluation and mental health counseling. Ms. H.'s compliance was tenuous at first, but it subsequently improved. At the time Ms. Little received L.B.'s case, Ms. H. was receiving mental health treatment from "Alliance, " but in December 2011, Ms. H. was "discharged" from the facility "due to non compliance."[7] Ms. H. then unsuccessfully sought treatment from "Upper Bay, " who she claimed did not return her phone calls. On January 4, 2012, Ms. H. began receiving treatment from "Community Behavioral Services, " and she was "actively participating in counseling" during the time Ms. Little had the case. Both Ms. H. and L.B.'s father completed a seven-week parenting skills course. Ms. H. "participated sporadically with Alpha's Glory to get some additional support." She also submitted to random urinalysis as required.

         By February 2012, Ms. H.'s compliance had improved to the extent that DSS held a Family Involvement Meeting "to talk about reunification." At that point, DSS increased Ms. H.'s visitation with L.B., the visits became extended and unsupervised, and DSS moved the visit location to J.H.'s residence.

         In February 2012, L.B.'s case was transferred to Caitlin Salmon who, at the time, was a foster care continuing worker. During her time with L.B.'s case, Ms. Salmon facilitated visits with L.B. Beginning on March 20, 2012, Ms. H. began to have overnight visits with L.B.

         Ms. Salmon testified that, for the most part, "things were going pretty well." Ms. H. was "pretty consistent" and always tested negative when asked to do urinalysis. There were, however, some incidents that concerned Ms. Salmon. L.B.'s foster parents reported that L.B. was "extremely lethargic" when he returned from his first overnight visit.

         On April 23, 2012, Mr. B. told Ms. Salmon that he had gotten into a physical altercation with Ms. H., which prompted Ms. H. to file for a Peace Order against him. At the Peace Order hearing, J.H. told Ms. Salmon about "lots of allegations against" Mr. B., including allegations of sexual abuse, which led Ms. Salmon to question whether it was appropriate for L.B. to be around Mr. B.[8] For a short period of time following each of these incidents, Ms. Salmon limited visitation with L.B. to unsupervised day visits before eventually reinstating overnight visits.

         L.B.'s Brief Reunification with Ms. H.

         At some point between the end of April and the beginning of May 2012, Ms. Salmon transferred L.B.'s case to the "Families Now" unit, a nine-month "intensive program for children placed out of home either in foster care or kinship care, " which was supervised by Maureen McKinley at DSS.[9] On or about June 1, 2012, L.B. was returned to Ms. H.'s care.

         The Families Now unit "continued to monitor the placement, " and it provided numerous services to Ms. H., including financial assistance with cable, electricity, phone, groceries, daycare, and transportation expenses, as well as paying for out-patient drug and alcohol treatment. During the first two months of L.B.'s reunification with his mother, Ms. McKinley experienced difficulty monitoring his well-being because Ms. H. frequently was unavailable for visits, and she refused to provide documentation with respect to the services she was supposed to be receiving, particularly mental health and substance abuse treatment. On June 27, 2012, DSS held another Family Involvement Meeting, during which it was decided that L.B. would remain with Ms. H.

         On August 27, 2012, L.B. again was removed from Ms. H.'s care and put back into foster care. The decision to remove L.B. from Ms. H. was based on a combination of issues, including a police report indicating that Ms. H. and her mother got into a physical altercation, as well as Ms. H.'s continuing failure to make herself available to DSS workers and provide documentation that she was receiving mental health treatment.

         On October 22, 2012, Ms. McKinley created a new Service Agreement, but Ms. H. would not sign it. At some point in the fall of 2012, Ms. H. began receiving substance abuse treatment from the Turning Corners program. She subsequently was discharged for failure to comply with the program.

         L.B.'s Brief Placement with Family

         On September 14, 2012, L.B. was placed in the care of Ms. H.'s brother, S.H. (H), and his wife, S.H. (W).[10] S.H. (W) set up a weekly visitation schedule for Ms. H. to visit L.B. For the first three weeks, Ms. H. "showed up on a regular basis." After that initial period, however, Ms. H. frequently would schedule a visit but then fail to show, without explanation. During the visits that Ms. H. did attend, she often would spend a disproportionate amount of the time questioning S.H. (W) regarding why she could not have unsupervised visits with L.B. and trying to convince S.H. (W) that she could be left alone with L.B., leaving little time actually spent with her son. Ms. H. grew "increasingly irritable over the situation."

         In January 2013, S.H. (W) received a phone call from J.H. informing her that Ms. H. had been hospitalized after "walking down the street and [saying] there were demons coming after her." Ms. H. later told S.H. (W) that her hospitalization was precipitated by a drug overdose and "cotton fever."[11] While Ms. H. was in the hospital, she became aware that she was pregnant with I.L.

         After approximately five months of caring for L.B., the S.H.'s decided that they could no longer care for him, in part because of the "friction" and "family conflict" involving Ms. H.'s mother. S.H. (W) testified that they received "constant phone calls[, ] harassment and . . . threats" from Ms. H. and J.H. Ms. H. remained at odds with S.H. (W) because "she was not willing to bend the rules." Ms. H. would curse at S.H. (W), call her names, and threaten to beat her up. S.H. (W) also testified that Ms. H. and her mother would "randomly show up at [their] house and start[] arguments . . . in front of [their] children."

         Recognizing that their current situation was unsustainable, both financially and with respect to the continual harassment, S.H. (H) reached out to L.B.'s maternal grandfather, D.H., for help. D.H. responded: "That's your sister and that's your nephew, it's not my problem."

         S.H. (H) testified that S.H. (W) "freaked out" when a DSS worker suggested, around the time of Ms. H.'s January hospitalization, that they may need to adopt L.B. if he was to remain with them. On February 26, 2013, another Family Involvement Meeting was held, and L.B. was transitioned back to his foster family.[12]

         At the February 2013 meeting, D.H., indicated that he and his wife were interested in caring for L.B. DSS subsequently conducted a home study, but D.H. and his wife were not approved because Ms. McKinley had several concerns about their suitability. First, they failed to provide certain information to DSS in a timely manner, including three referral references. Second, Ms. McKinley was concerned that they would simply give L.B. back to Ms. H. after receiving custody of him or, due to D.H.'s "contentious relationship" with his daughter, fail to follow DSS instructions with respect to permitting or denying visitation with L.B. Finally, Ms. McKinley took into account that L.B. was spending a significant amount of time with his foster parents, whereas D.H. had not requested to visit L.B. at all during that time.

         On April 10, 2013, the circuit court changed L.B.'s permanency plan to adoption. In July 2013, L.B.'s case was transferred to Melissa Wetters in the DSS Home Services unit. Ms. Wetters testified that L.B. remained in foster care because Ms. H. continued to have unaddressed substance abuse and mental health issues, and she "had not progressed in her previous service agreements."

         From July to October 2013, Ms. H. regularly attended visits with L.B., which were facilitated by Ms. Wetters, but she "spent most of the visits venting" to Ms. Wetters. On July 25, 2013, Ms. Wetters presented a new Service Agreement to Ms. H. Ms. H. refused to sign the agreement, and instead, she directed Ms. Wetters to her attorney. Ms. Wetters testified that, although she "talked with [Ms. H.] extensively about mental health treatment, " Ms. H. "refused to engage with that." Ms. Wetters also talked with Ms. H. "about anger management evaluation and classes, which was a previous term on her Service Agreement, and [Ms. H.] indicated that she had previously completed that, and she was going to [provide] documentation, but she did not."

         Initiation of the Department of Social Services' Interest in I.L.

         The Harford County Department of Social Services initially took interest in I.L. on September 18, 2013, when the department received a referral that both Ms. H. and I.L. tested positive for cocaine and opiates at the time of I.L.'s birth, and Ms. H. admitted to using heroin on the day of delivery. On September 20, 2013, Pamela Abramson, a DSS Child Protective Services Investigator, visited the hospital where I.L. was delivered and was informed by hospital staff that I.L. was exhibiting signs of withdrawal and needed medication, but Ms. H. was withholding consent. Ms. Abramson issued "shelter papers, " and I.L. subsequently was placed in foster care.

         Shortly after I.L. was born, Ms. H. began to use heroin and cocaine regularly. She failed to attend an intake for a substance abuse evaluation.

         On October 10, 2013, a Family Involvement Meeting was held to discuss I.L.'s situation. Ms. Abramson testified that, during the meeting, Ms. H. and I.L.'s father became angry and "stormed out of the meeting." Around that time, DSS evaluated family members as potential resources for I.L. Ms. Abramson testified that Ms. H.'s father, D.H., approached her, but he "stated he did not want to be a resource at that time." DSS also investigated Ms. H.'s mother, J.H, but it concluded that she would not be a suitable resource. DSS was concerned about her mental health issues, she already was caring for a severely disabled child, and she "enable[d]" Ms. H. and had a "strained relationship" with her.

         On October 23, 2013, the court designated I.L. a CINA. The court ordered that I.L. be placed into foster care and that the "primary Permanency ...

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