IN RE: ADOPTION/GUARDIANSHIP OF L.B. AND I.L.
Graeff, Friedman, Eyler, James R. (Retired, Specially
appellant, challenges an order issued by the Circuit Court
for Harford County terminating her parental rights
("TPR") to her two sons, L.B. and
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
reasons set forth below, we shall affirm judgment of the
AND PROCEDURAL BACKGROUND
of the Department of Social Services' Interest in
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. DSS subsequently transferred the case to
the Continuing Services department so further services could
be provided to the family.
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.
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."
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
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. Accordingly, Ms. Fisher
updated the Safety Plan to require that Ms. H.
"appropriately supervise the children at all
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.
Places L.B. in Foster Care
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. 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."
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.
October 7, 2011, Ms. Fisher petitioned the circuit court to
designate L.B. a Child in Need of Assistance
("CINA"). On October 26, 2011, the court found that
DSS's allegations were substantiated and designated L.B.
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.
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.
October 7, 2011, Ms. Fisher transferred L.B.'s case to
Renee Little in the DSS foster care in-take
unit. Ms. Little supervised biweekly visits,
noting that, "for the most part, " Ms. H. was
attentive and appropriate around L.B.
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.
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."
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." 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
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
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.
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.
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. 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.
Brief Reunification with Ms. H.
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
On or about June 1, 2012, L.B. was returned to Ms. H.'s
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.
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.
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.
Brief Placement with Family
September 14, 2012, L.B. was placed in the care of Ms.
H.'s brother, S.H. (H), and his wife, S.H.
(W). 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
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." While Ms. H. was in the
hospital, she became aware that she was pregnant with I.L.
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."
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."
(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.
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.
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."
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."
of the Department of Social Services' Interest in
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
after I.L. was born, Ms. H. began to use heroin and cocaine
regularly. She failed to attend an intake for a substance
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.
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 ...