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In re Adoption/Guardianship of H.W.

Court of Special Appeals of Maryland

September 28, 2017

IN RE: ADOPTION/GUARDIANSHIP OF H.W.

         Circuit Court for Baltimore City Case No. T15280012

          Wright, Arthur, Salmon, James P. (Senior Judge, Specially Assigned) JJ.

          OPINION

          ARTHUR, J.

         The Baltimore City Department of Social Services petitioned the Circuit Court for Baltimore City, sitting as the juvenile court, to terminate the parental rights of H.W.'s biological father. The court found by clear and convincing evidence that there were exceptional circumstances that made the continuation of the father's parental relationship detrimental to H.W.'s best interests. In so doing, the court relied, in part, on the factors from Ross v. Hoffman, 280 Md. 172 (1977), which concern whether there are exceptional circumstances that make it detrimental to a child's best interests for a parent to have custody. The father appealed.

         Although the court engaged in a thorough and conscientious review of all the evidence before it rendered its decision, we must vacate the judgment and remand for further proceedings because the court erred in considering factors related to custody in finding exceptional circumstances that make the continuation of the father's parental relationship detrimental to H.W.'s best interests.

         FACTUAL AND PROCEDURAL HISTORY

         A. H.W.'s Life

         Appellant M.W. ("Father") is the biological father of a son, H.W., who was born in April of 2012. At the time of H.W.'s birth, Father was incarcerated in Connecticut. Father has never met H.W., and H.W. does not know of Father's existence.

         On September 5, 2012, while Father was incarcerated in Connecticut, H.W.'s mother ("Mother") left him unattended in a bathtub. When she returned, H.W. was face down in the water. He almost drowned. The child was hospitalized and spent two weeks on life-support.

         On September 28, 2012, H.W. was placed into the custody of the Baltimore City Department of Social Services under an emergency authorization. On October 1, 2012, the Department filed a petition alleging that H.W. was a child in need of assistance or "CINA."[1] On approximately December 3, 2012, the juvenile court found that H.W. was a CINA, but left him in Mother's custody under an order of protective supervision. Father was still incarcerated in Connecticut when these events occurred.

         On January 13, 2013, Father was released from prison and placed on probation in Connecticut. He has testified that he was not allowed to leave Connecticut without official permission and that he could not move to Baltimore, because his family could not sponsor him. He lived for some time in a homeless shelter and did not complete a drug-treatment program for marijuana abuse.

         For reasons that are unclear from the record, the court entered an emergency order authorizing H.W.'s removal from Mother's residence on May 14, 2013, but returned him to Mother's custody, under the order of protective supervision, on July 22, 2013. On December 12, 2013, the court terminated H.W.'s CINA case.

         In January 2014, Mother gave birth to fraternal twins, H.W.'s half-brother and half-sister. Five months later, on June 8, 2014, Mother left H.W.'s half-brother in the sink, unattended, while she tended to his half-sister, who was choking in another room. The infant boy suffered burns on over 18 percent of his body and was hospitalized for 25 days.

         On June 9, 2014, the day after H.W.'s half-brother suffered his burns, the Department filed a petition for shelter care on behalf of H.W. and his two half-siblings. At the time, H.W. had a healed burn to the right side of his forehead, which, Mother said, he had suffered when he ran into a lit cigarette while playing. The court placed H.W. and his half-siblings into shelter care.[2]

         On June 20, 2014, the Department placed H.W. and his half-sister in the care of their foster parents, the Ms. H.W. and his half-sister have lived with the Ms. since that date. H.W.'s half-brother joined them at a later date, after he had recovered from his burns, and after Mr. and Ms. M. had constructed an extra room to accommodate all of the children.

         Lori Lee, a permanency worker for the Department, investigated Father's whereabouts and received information indicating that he was incarcerated in Kentucky. She sent him a letter on July 10, 2014, but received no response.

         The court scheduled a six-month review hearing on H.W.'s permanency plan for the afternoon of December 9, 2014. Father testified that he found out about the hearing about a month before it occurred (though he was unsure how). He evidently received permission to travel to Baltimore for the hearing, but showed up in the morning rather than in the afternoon. He spoke to Ms. Lee, told her that he was on probation in Connecticut (and not incarcerated in Kentucky), and asked to visit with H.W. Ms. Lee told Father that she would pick up H.W. and bring him to the courthouse, but Father said that he was unable to stay because he had bought a ticket on a bus that was leaving at 2:00 or 3:00 p.m. It appears that Father may have managed to get a ticket for a later bus (he did not need to get back to work in Connecticut until 7:00 p.m. the following evening), but he did not use the extra time to see H.W. He left the courthouse with Mother and has not returned to Maryland since that date.

         Over the first eight months of 2015, Ms. Lee spoke to Father (and his probation officer) on one occasion and sent him several letters about upcoming hearings. She received no response to the letters. In August 2015, she learned that Father had been reincarcerated. He had violated his probation in several ways, including by testing positive for the use of marijuana.

         In October 2015, while he was incarcerated, Father wrote to Ms. Lee and expressed his desire to "be in [H.W.'s] life." He suggested his aunt or his brothers as resources for H.W. Ms. Lee, however, could not locate the brothers. (Father had not supplied contact information for them.) The aunt declined to become a placement ...


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