Court for Baltimore City Case No. T16130002
Deborah S., Nazarian, Friedman, JJ.
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.
AND PROCEDURAL BACKGROUND
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.
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), as well as drug treatment and parenting
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.
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."
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.
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.
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
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
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
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.
casefile from FRP confirms much of the information contained
in the court orders but also explains additional background
information about Father.  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.
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.
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.
Exhibit 91 is a set of five reports:
(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.
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.
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.
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.
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.
Hearsay and the Business Records Exception
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.
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).
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.
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. 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.
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
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.
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."
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.
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
Termination of Parental Rights Factors
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
(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
(iii) the extent to which a local department and parent have
fulfilled their obligations under a social services
agreement, if any;
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