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In re Adoption/Guardianship of T.A.

Court of Special Appeals of Maryland

August 30, 2017

IN RE: ADOPTION/GUARDIANSHIP OF T.A., JR.

         Circuit Court for Baltimore City Case No. T16130002

          Eyler, Deborah S., Nazarian, Friedman, JJ.

          OPINION

          Friedman, J.

         This appeal stems from the erroneous admission of hearsay evidence (Exhibit 91) during proceedings that terminated the rights of T.A.'s biological parents. Mother did not appeal. Father has brought this appeal arguing that the erroneous admission of Exhibit 91 (a group of five reports) requires reversal of the judgment, and that he should, therefore, have another opportunity to defend against the termination of his parental rights. Because we conclude that the admission of Exhibit 91 was harmless error, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         T.A. was born January 4, 2012, premature and drug-exposed. He tested positive for opiates at birth and suffered from withdrawal symptoms that required the intravenous administration of morphine. T.A.'s mother also tested positive for opiates at the time of his birth. Mother had a history of abusing illicit drugs and had past and continuing interactions with Child Protective Services for her other two children (the full history and outcome of which is not included in the record for this case). At the time of T.A.'s birth, neither his Mother nor his Father had any supplies prepared such as infant formula, a car seat, or diapers. Neither Mother nor Father had employment or housing.

         Upon his release from the hospital, T.A. was immediately placed in the care of Mr. and Ms. B. Shortly thereafter, T.A. was found to be CINA (Child in Need of Assistance) and was committed to the Baltimore City Department of Social Services (DSS). The permanency plan for T.A. was initially set as reunification with his birth parents, primarily his Mother. Father and Mother were both referred to the Family Recovery Program (FRP)[1], as well as drug treatment and parenting classes.

         Due to his premature birth, T.A. has chronic lung disease and takes several medications to manage his condition. A consequence of T.A.'s condition is that occasional short-term exposure to second-hand cigarette smoke could trigger serious medical events, while long-term exposure to second-hand cigarette smoke could be detrimental to T.A.'s already diminished lung function. Moreover, any exposure to cigarette smoke could lower T.A.'s immune responses to viruses, placing him at higher risk of developing serious respiratory infections, such as pneumonia. By January of 2013, he had been hospitalized several times and required daily medications and monitoring.

         At the time of the CINA Contested Review hearing in January of 2013, Father was incarcerated and awaiting trial. Prior to his incarceration, Father had last visited T.A. in July of 2012. He had also failed to complete a drug treatment program. Although Mother had not visited T.A. since August of 2012, at the January 2013 review hearing, she "reengaged" with the department, asking to be re-referred to a drug treatment program and offered her mother, T.A.'s maternal grandmother, as a possible placement. Following that review hearing, the juvenile court continued T.A.'s commitment and changed the permanency plan to "placement with a relative for custody and guardianship."

         Following the next CINA Contested Review hearing on October 28, 2014, the permanency plan was again modified to "reunification with parent concurrent with custody and guardianship or adoption by a non-relative." At that hearing it was reiterated that T.A.'s respiratory disease was made worse by viral infections and environmental irritants such as dust, mold, and smoke exposure. At the time of the October 2014 hearing, Mother was incarcerated awaiting trial, but Father had been released from incarceration. Although Father had re-initiated visitation with T.A. and indicated that he was "interested in working towards reunification, " Father did not have housing or employment. At the hearing, Father volunteered to be referred to FRP and was instructed to complete a psychological evaluation, and attend parenting classes and substance abuse treatment. Also at that hearing, T.A.'s paternal grandmother and great-grandmother, who had been suggested by Father as possible placement options, were ruled out as possible care givers for T.A. because they had not visited T.A. or attended medical appointments.

         In 2015, Father was re-arrested but released after three weeks' incarceration. Father was participating in FRP, but was in poor compliance and had not submitted satisfactory urinalysis. Father was also in the Powell Recovery Program and had signed a service agreement, but still did not have employment or housing.

         At the April 2015 "26-Month Review" hearing, the juvenile court noted that T.A. was still in the care of Mr. and Ms. B., with whom he had resided since birth, and that he was "being well taken care of in their care." T.A. continued to take medications for his chronic lung disease and asthma and received treatment from a pediatrician, pulmonologist, and nephrologist. At the time of the April 2015 hearing, Mother remained incarcerated. By September of 2015, however, Mother was no longer incarcerated and both Father and Mother had completed the "Circle of Security Parenting" course.

         When T.A. was four years old, T.A., Father, Mother, and the B.s attended another CINA Contested Review hearing. At the hearing, on March 16, 2016, Ms. B. testified about T.A. She testified that T.A. is an outgoing four-year old. T.A. attends pre-school, helps Ms. B. cook, attends Boy Scouts, participates in a baseball league, and swims. The B.s consider T.A. part of their family and he is very attached to their son. Although T.A. is healthy now, he does require proactive supervision and constant review of his medications. Ms. B. also testified that although T.A. will talk about his visits to DSS and refer to Ms. Hemingway (his case worker) and what he does on the visits, he does not talk about Father or Mother. The hearing was adjourned after Ms. B.'s testimony.

         The contested review hearing resumed two days later. Ms. Hemingway, T.A.'s case worker since days after his birth, testified that T.A. is "well bonded to the [B.s] (calling them 'mommy' and 'daddy') and their son." Ms. Hemingway described the speech, physical, and behavioral therapies that T.A. has received and stated that his chronic pulmonary disease is improved and managed. Ms. Hemingway testified that, as of April 24, 2014, Father and Mother had kept all of their weekly visits with T.A. and that T.A. interacts well with them. Ms. Hemingway also described the service agreements signed by Father and Mother. Pursuant to his servicing agreement, Father completed parenting classes, attended T.A.'s medical appointments, and enrolled in a smoking cessation program. Father, however, did not complete the smoking cessation program, and did not obtain employment. Additionally, although Father was enrolled in Powell Recovery, there was no certificate of completion, nor was he compliant with FRP. Following Ms. Hemingway's testimony, the juvenile court held the matter sub curia.

         At the next hearing, a month later, Mother testified. Mother admitted that her drugs of choice are heroin and Percocet and the court found that she was in full relapse. Although Mother testified that she had stopped smoking in the past two weeks, the juvenile court found that statement not credible given the failure to stop smoking over the past four years and the admitted CDS relapse. After closing arguments, the juvenile court found that Father and Mother have completed a parenting program and have visited with T.A. either every week or every other week, but neither has ceased smoking or achieved sustained sobriety. The juvenile court concluded that "Mother and Father's progress toward reunification is very fundamentally inadequate on these core issues of [addiction, ] relapse[, ] and smoking. There is no likelihood that Mother or Father would overcome the significant barriers to reunification in the foreseeable future." The juvenile court recognized Father's unwillingness to offer himself as a resource for T.A., and Mother's long history of relapses and excuses. The juvenile court concluded that DSS had made reasonable efforts to achieve the concurrent permanency plan of reunification or adoption by a non-relative, but that it was in the best interests of T.A. to change the permanency plan to "adoption by a non-relative." As a result, the juvenile court also terminated the parental rights of Father and Mother.

         Father's casefile from FRP confirms much of the information contained in the court orders but also explains additional background information about Father. [2] Father completed the intake process with FRP on October 31, 2014. Father and his caseworker discussed his drug and alcohol use, medical history, employment history, relationship status, and legal status. During the intake, Father admitted using alcohol, drugs, and tobacco in the last 30 days. He reported some hospitalizations for medical problems, but denied that he had any current medical problems. Father admitted that he experiences depression, sadness, and hopelessness, but denied contemplating suicide and appeared motivated to change his substance abuse patterns. Father also reported that he had not worked in the past six months and that his longest full-time job was for one year and six months.

         The detailed staff notes contained in Father's FRP casefile reveal that Father continued to use heroin in 2014 and 2015. In the beginning of 2015, Father reported considering suicide and was referred to Hope Health. Shortly thereafter, Father was incarcerated for a time, before again, in March of 2015, reporting being suicidal. Father was then referred to Powell Recovery for detox and inpatient treatment. In May of 2015, Powell Recovery contacted FRP to report that Father was hearing voices telling him to commit suicide. Father was hospitalized for a brief period. In the months following, Father's urinalysis tested positive for cocaine. In August of 2015, Father reported to FRP that his attorney had advised him to turn himself in on an open arrest warrant, but that he was not ready to do so yet. FRP warned Father that if Powell Recovery discovered that he had an open warrant he could be discharged from residential treatment. Father was arrested on that open warrant while at FRP, but then reported that he had been released by mistake and did not plan to return to the FRP court hearings. The FRP records indicate that Father was in either poor compliance or no compliance with the program, with brief periods of good compliance.

         The juvenile court gave a clear summary of this case:

Frankly, the same issues that encountered the parents when Respondent was born in January of 2012 are the same issues that remain today in November [of] 2016. … The parents have demonstrated no real desire to raise their son.

         DISCUSSION

Exhibit 91 is a set of five reports:[3]

(1) a bonding evaluation of the B.s and T.A.;
(2) a parental fitness evaluation of Mother;
(3) a parental fitness evaluation of Father;
(4) a fitness evaluation of the B.s; and
(5) a bonding evaluation of Father and Mother with T.A.

         The parental fitness evaluations of Father and Mother (#2 and #3), and all of the bonding evaluations (#1 and #5) were authored by Dr. Ruth Zajdel, consulting psychologist for Medical Services-Juvenile Court. The bonding evaluations were based on Dr. Zajdel's observation of each adult interacting with T.A. in a play room for 30 minutes. Dr. Zajdel observed their interactions through a one-way mirror. Dr. Zajdel authored the parental fitness evaluations of both Father and Mother (#2 and #3) after she interviewed them individually. Brenda Harriel, a social worker for Medical Services, wrote the fitness evaluation of the B.s (#4). Ms. Harriel based her recommendations on interviews with Ms. B. and Mr. B., her review of court orders, and a letter written by Dr. Jay Gopal (head of pediatrics at Union Memorial Hospital and a member of T.A.'s medical team). Neither Ms. Harriel nor Dr. Zajdel testified at the hearings.

         Exhibit 91 was admitted during DSS's case. DSS sought to admit Exhibit 91 into evidence without a witness on the stand. Father objected to the admission stating that it was "hearsay within hearsay and there is no reason why the authors of those reports cannot be here to testify. ... I can't cross examine a document." DSS argued in response that Exhibit 91 was a certified business record and that there had been a 10-day notice to each party that DSS intended to introduce Exhibit 91. Thus, DSS concluded that Father should have filed an objection or motion in response to the 10-day notice if he wished to exclude Exhibit 91 from evidence. The juvenile court, without further explanation, admitted Exhibit 91.

         On appeal, Father argues that the juvenile court erred by admitting Exhibit 91 because it was inadmissible hearsay. Both DSS and T.A. (through his assigned attorney) concede that Exhibit 91 is inadmissible hearsay. They argue, however, that the admission of Exhibit 91 was harmless error because Exhibit 91 is merely cumulative of all of the other exhibits and testimony offered in the case.

         Despite this confession of error, we will begin our analysis by explaining that it was error for the juvenile court to admit Exhibit 91. We will then turn to the question of whether the admission of Exhibit 91 was harmless error. Because we conclude that the admission of Exhibit 91 did not create a substantial likelihood of prejudice to Father, we conclude that the admission of Exhibit 91 was harmless error.

         1. Hearsay and the Business Records Exception

         All of the parties now concede that Exhibit 91 is hearsay because each of the reports within Exhibit 91 were out of court statements made by Dr. Zajdel and Ms. Harriel, offered for the truth of the matters asserted in the reports. At the juvenile court, however, DSS argued that the reports fell under the business records exception to the hearsay rule and was, therefore, admissible. Father argued at the juvenile court, and continues to argue now, that Exhibit 91 did not fall under the business records exception for several reasons: first, the reports were prepared specifically for the CINA hearings and have nothing to do with the day to day operations of the Court Medical Services; second, the reports are the opinions of Dr. Zajdel and Ms. Harriel based on their interactions with, and observations of, the parties; and finally, as a matter of fundamental fairness, the juvenile court should have allowed Father to cross-examine Dr. Zajdel and Ms. Harriel about the reports.

         Hearsay is not admissible unless it falls into an exception. Md. Rule 5-802. One such hearsay exception is for "Records of Regularly Conducted Business Activity." Md. Rule 5-803(b)(6). This exception allows for the admission of a report (memoranda, record, or data), despite the report being hearsay, if it was created in the regular course of business by a person with knowledge of the event at or near the time of the event. Md. Rule 5-803(b)(6). Also, it must be the regular practice of the business "to make and keep the memorandum, report, record, or data compilation." Md. Rule 5-803(b)(6). The business record exception "is based on the premise that because the records are reliable enough for the running of a business … they are reliable enough to be admissible at trial." Hall v. Univ. of Maryland Med. Sys. Corp., 398 Md. 67, 89 (2007). The exception does not, however, "embrace statements by persons outside the business, because those persons are under no business duty to record or transmit information truthfully." Id. (quoting Lynn McLain, Maryland Rules of Evidence, Rule 5-803(b)(6), § 4(q)(i), 237 (2d ed. 2002)). The exception also does not "embrace self-serving records, made in anticipation of litigation." Sail Zambezi, Ltd. v. Maryland State Highway Admin., 217 Md.App. 138, 156 (2014) (citing Hall, 398 Md. at 89).

         Reports created by Court Medical Services for review in child access cases do not qualify for the business records exception. In re Adoption/Guardianship No. 95195062/CAD in Circuit Court for Baltimore City, 116 Md.App. 443, 464 (1997). In that case, a Court Medical Services report was ordered for a CINA case. Id. at 462. The Court Medical Services doctor evaluated the mother and issued a report that was entered into evidence without testimony from a custodian of records or from the doctor who wrote the report. Id. at 462-64. This Court held that the juvenile court erred by admitting the record and that the report did not qualify for the business records exception. Id. Judge Ellen L. Hollander, for this Court, held that:

the report was prepared when [the parent] was evaluated in anticipation of a CINA hearing. It had nothing to do with the "running" of the Juvenile Court Medical Service of the Circuit Court for Baltimore City. Although hospital records often are admitted under this exception, the kind of information at issue here is qualitatively different. This report constitutes the opinion of an expert who was directed to evaluate [the parent] and opine about her mental health. Plainly, as a matter of fundamental fairness, [the parent] was entitled to cross-examine the doctor in order to challenge his opinion.

Id. at 464 (emphasis added). The case was remanded for further proceedings and the juvenile court was instructed not to consider the Court Medical Services report on remand unless the doctor who authored the report was called to testify. Id. at 461, 466.

         It is clear from In re Adoption/Guardianship No. 95195062/CAD, that Father is correct in each of his arguments. First, the reports contained in Exhibit 91 "had nothing to do with the 'running' of the Juvenile Court Medical Service." Id. Second, the reports contained in Exhibit 91 were the opinions of Dr. Zajdel and Ms. Harriel and, therefore are "qualitatively different" from the information typically contained in a business record. Id. And finally, "as a matter of fundamental fairness, " id., Father should have been allowed to cross-examine Dr. Zajdel and Ms. Harriel about the reports contained in Exhibit 91. As a result, the reports contained in Exhibit 91 do not qualify for the business records exception.[4] Moreover, although the parties have conceded here that Exhibit 91 is hearsay, and although In re Adoption/Guardianship No. 95195062/CAD expressly held twenty years ago that such reports are inadmissible hearsay, we now repeat that Exhibit 91, and reports like them, do not meet the requirement of the business records exception.[5]

         DSS tried to salvage the situation by arguing in the juvenile court that, because it sent a 10-day notice of its intent to introduce Exhibit 91 pursuant to Rule 5-902, Exhibit 91 was authenticated and admissible. This argument does not withstand scrutiny. Rule 5-902(b)(1) states that:

Testimony of authenticity as a condition precedent to admissibility is not required as to the original or duplicate of a record of regularly conducted business activity, within the scope of Rule 5-803(b)(6) that has been certified pursuant to … this Rule, provided that at least ten days prior to the commencement of the proceeding in which the record will be offered into evidence, (A) the proponent (i) notifies the adverse party of the proponent's intention to authenticate the record under this subsection and (ii) makes a copy of the certificate and record available to the adverse party and (B) the adverse party has not filed within five days after service of the proponent's notice written objection on the ground that the sources of information or the method or circumstances of preparation indicate lack of trustworthiness.

Md. Rule 5-902(b)(1). The 10-day notice allowed by Rule 5-902 only authenticates a document, however, and does not render that document automatically admissible. Md. Rule 5-902(b)(1). The rule states that by following its procedure, "[t]estimony of authenticity as a condition precedent to admissibility is not required." Md. Rule 5-902(b)(1) (emphasis added). The rule does not state that the document becomes automatically admissible. DSS's argument, therefore, that Exhibit 91 was automatically admissible because DSS provided 10-day notice, must fail.

         2. Harmless Error

         While Exhibit 91 should not have been admitted, and the juvenile judge erred by overruling Father's objection, this error does not necessarily require reversal. It is this court's policy "not to reverse for harmless error." In re: Yve S., 373 Md. 551, 616 (2003). Therefore, we must determine whether the error in admitting Exhibit 91 was harmless. Id. at 616-17. In In re: Yve S., the Court of Appeals concluded that although there is no precise standard, a reversible error must be one that affects the outcome of the case, the error must be "substantially injurious, " and "[i]t is not the possibility, but the probability, of prejudice" that is the focus. Id. at 618 (internal citations omitted). The Yve S. Court reasoned that appellate review of harmless error must be on a case-by-case basis and must balance "the probability of prejudice in relation to the circumstances of the particular case." Id.

         Here, Father's allegation of prejudice is that the juvenile court "relied on the information in the reports to reach several critical conclusions about the bond T.A. had with his [biological] parents, the [biological] parents' fitness to parent, T.A.'s adjustment to the care of, and bond with, the foster care providers, and the potential harm to T.A. if his placement were to change." Father reasons that the juvenile court's conclusions about those bonds and about Father and Mother's fitness to parent "formed a substantial basis for its ultimate conclusion to terminate parental rights." DSS responds that Exhibit 91 was not critical to the juvenile court's ultimate decision because the information contained in Exhibit 91 was merely duplicative of the ample evidence presented at the hearings regarding Father and Mother's bonds with T.A. and their unfitness to parent.

         We will, first, individually review the juvenile court's analysis of each factor. For each factor we will determine if the court explicitly or implicitly referenced Exhibit 91. If it did, we will then review the evidence available that pertains to that factor to conclude if there is a probability that Exhibit 91 prejudiced the juvenile court's analysis of that factor. Second, after reviewing the factors individually, we will then review them collectively.

         a. Termination of Parental Rights Factors

         The legislature has directed that "a juvenile court shall give primary consideration to the health and safety of the child and consideration to all other factors needed to determine whether terminating a parent's rights is in the child's best interests." Md. Code Ann., Family Law (FL) § 5-323(d). The legislature has provided a non-exclusive list of factors to guide this consideration including:

(1)(i) all services offered to the parent before the child's placement, whether offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any;

         (2) the results of the parent's efforts to adjust the parent's circumstances, condition, or conduct to make it in the child's best interests for the child to be returned to the parent's home, including:

(i) the extent to which the parent has maintained regular ...

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