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In re C.E.

Court of Appeals of Maryland

October 20, 2017

IN RE: C.E.

          Argued: September 6, 2017

         Circuit Court for Baltimore City Case No.: 814192003

          Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.

          OPINION

          ADKINS, J.

         In this CINA[1] case, we settle conflicting decisions from the Court of Special Appeals on the appealability of a juvenile court's order waiving the government's obligation to provide reasonable reunification efforts to families. In doing so, we also clarify which actions by a juvenile court "deprive" a parent of care or custody of a child as outlined by Maryland Code (1973, 2013 Repl. Vol.), § 12-303(3)(x) of the Courts and Judicial Proceedings Article ("CJP").

         We issued a writ of certiorari to consider two questions. First, did the Court of Special Appeals err in holding that the court's order waving reasonable reunification efforts was not a final order and not appealable? Second, did the juvenile court err in holding that a waiver of reasonable efforts pursuant to Md. Code. (1973, 2013 Repl. Vol., 2016 Supp.), CJP § 3-812 was constitutionally permitted?

         We shall answer the first question no, holding that Petitioner had no right to an interlocutory appeal. We do not reach the second question.

         I. FACTS AND LEGAL PROCEEDINGS

         C.D., the mother of C.E., has an extensive history with Baltimore City Department of Social Services ("Department"). Under a series of saddening circumstances, all six of C.D.'s children have been adjudged CINA. The first finding occurred in 1998 and the latest in 2015. Juvenile courts have involuntarily terminated C.D.'s parental rights for four of her six children.

         A. Involuntary Terminations of C.D.'s Parental Rights

         C.D. suffers from several mental illnesses that prevent her from properly caring for her children. C.D.'s previous mental health diagnoses include paranoia, adjustment disorder, major depression, somatization disorder, borderline personality disorder, mania, and bipolar affective disorder. C.D. also demonstrated "fits of rage" and underwent psychiatric hospitalizations, yet she refused regular and continuing mental health treatment. Despite numerous services and referrals, juvenile courts repeatedly have found that C.D. displayed a complete inability to care for her children, control her emotions, or effectively communicate with her children and the Department.

         As a result of her inability to care for her children, primarily attributed to her mental illnesses, C.D. lost parental rights to four of her six children. C.D.'s second child, I.S., was found to be a CINA in 1998. Her third child, L.B., was also found to be a CINA in 1999. In 2003, a juvenile court terminated C.D.'s parental rights over both I.S., and L.B. after a contested hearing. The Court of Special Appeals affirmed the juvenile court's termination of C.D.'s parental rights. C.D.'s fourth and fifth children, J.D. and M.D., were both found to be CINA in 2012. After a contested hearing in 2014, C.D.'s parental rights with respect to J.D. and M.D. were also terminated. Again, the Court of Special Appeals affirmed. When C.D. had her sixth child in 2014, the Department intervened once again.

         B. CINA Finding Regarding C.E.

         C.E. was born prematurely in May of 2014. In June, C.E. was transferred from the neonatal intensive care unit at Johns Hopkins to Mount Washington Pediatric Hospital after complications arising from C.E.'s low birth weight. In July, before C.E. could leave the hospital in the care and custody of C.D., the Department filed a CINA Petition for shelter care of C.E. in the Circuit Court for Baltimore City. The Department alleged that C.D. had untreated mental health conditions that prevented her from caring for C.E. Two weeks later, the juvenile master approved the CINA petition and ordered C.E. into the Department's custody. The Department then transferred custody of C.E. to relatives. An adjudicatory hearing was set for October of 2014. This hearing was postponed five times. The juvenile court agreed to four of these postponements to allow C.D. to hire an attorney-she hired and fired several in this timeframe.

         On June 16, 2015, nearly a year after the Department filed its Petition, the court conducted an adjudicatory hearing and found C.E. was a CINA.[2] Shortly thereafter, the Department requested a waiver of the Department's obligation to continue reasonable reunification efforts.

         C. Department's Waiver Request

         The Department expended extensive resources and took substantial steps to provide C.D. with reasonable reunification services. The Department, through an assigned caseworker, made repeated referrals to assist C.D. in obtaining mental health treatment. C.D. refused to leave her home for mental health treatment. To appease C.D. the Department contacted twelve mental healthcare providers but each refused to provide in-home care to C.D. A social worker attempted to give C.D. psychiatric resources, but C.D. promptly ripped up the resources and handed them back to the social worker. C.D. rejected the transportation offered by the Department for visits with C.E. Although C.D. had a period of supervised bi-weekly visits with C.E., these visits were marred by C.D.'s emotional outbursts.

         On July 9, 2015, the Department filed a Motion to Waive Reasonable Efforts to Reunify pursuant to CJP § 3-812. This statute permits the juvenile court to waive the Department's obligation to continue reunification efforts under certain conditions. Specifically, CJP § 3-812(c) allows the Department to "immediately request the court to find that reasonable efforts to reunify the child with the child's parent or guardian are not required, " if "any of the circumstances specified in subsection (b) of this section exists . . . . " Subsection (b)(3) permits the Department to request a waiver if "a parent or guardian: . . . [h]as involuntarily lost parental rights of a sibling of the child."

         The Department argued that it should not continue to provide reasonable reunification services because C.D. involuntarily lost her parental rights to four siblings of C.E. C.D., opposing the motion, argued that CJP § 3-812 violated her fundamental right to parent by unconstitutionally penalizing her for contesting the previous termination of her parental rights because the statute would not apply had she consented to the previous terminations. Further, she argued that application of the statute would end her ability to reunify with C.E.

         After the court heard argument on the Department's Motion and C.E.'s response, it granted the Department's Motion. The hearing judge noted C.D.'s four previous contested terminations of parental rights and explained that "in my view of the entire record of this case . . . it is mandatory for me to grant the Department's motion under [C]P] 3-812." In his written order, the hearing judge again noted "[C.D.'s] four prior appellate-sustained [terminations of parental rights] over [C.D.'s] objection for [C.E.'s] siblings." C.D. immediately appealed the order waiving reasonable efforts to the Court of Special Appeals.

         D. C.D.'s Appeal of the Waiver Order

         The intermediate appellate court, in an unreported decision, affirmed the waiver. In re C.E., No. 0464, 2016 WL 7235560 (Md. Ct. Spec. App. Dec. 14, 2016). The Court did not address the question C.D. submitted, [3] but instead held that an order waiving reasonable reunification efforts is not immediately appealable because it was merely an interlocutory order and not a final judgment. Id. at *7.

         The intermediate court also considered whether CJP § 12-303 permitted the Court to hear the appeal. Id. at *5-7. CJP § 12-303(3)(x) provides that a party may appeal any interlocutory order "[d]epriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order[.]" The Court considered whether the waiver order deprives a parent of the care and custody of her child, or changes the terms of such an order. Id. at *5. It turned to In re Karl H., 394 Md. 402 (2006), which explained that the question depends on "'whether the order and the extent to which that order changes the antecedent custody order.'" Id. at *7 (quoting In re Karl H., 394 Md. at 430). Reasoning that the order regarding reunification services did not change any other order in the case, alter a permanency plan, or deprive C.D. of the care or custody of her child, the panel majority dismissed C.D.'s appeal. Id.

         A dissenting judge disagreed with the Court's rejection of C.D.'s appeal and reasoned that that the panel majority improperly characterized the waiver order as one that would not affect C.D.'s care or custody. Id. at *9.

         The 2016 decision conflicts with an earlier decision from the Court of Special Appeals. In that case, In re Joy D., 216 Md.App. 58 (2014), a different panel considered the same question: whether a party may immediately appeal an order waiving a department's obligation to provide reasonable reunification services. Id. at 61. The intermediate appellate court, in a unanimous opinion, reasoned that a waiver order was appealable as a change to the terms of another order regarding a parent's care or custody of her child. Id. at 73 n.10. ("An order waiving the requirement to make reasonable efforts to reunify a parent with his or her child is appealable pursuant to CJP § 12-303(3)(x) . . . .").

         II. DISCUSSION

         C.D. makes two arguments before this Court. First, she contends that the juvenile court's order waiving reasonable reunification efforts deprived her of care and custody of C.E, thereby creating an immediate right to an appeal. Second, C.D. argues that CJP § 3-812-facially and as applied to her-violates the constitutional guarantees of substantive due process, procedural due process, and equal protection.

         A. Standard of Review

         Appellate courts do not disturb the juvenile court's findings of fact unless they are clearly erroneous. In re Yve S., 373 Md. 551, 586 (2003) (citing Davis v. Davis, 280 Md. 119, 125-26 (1977)). We review the juvenile court's decisions on matters of law without deference. Id. Here, the parties do not dispute the juvenile court's finding with respect to the only relevant fact-that C.D.'s parental rights to four of C.E.'s siblings were involuntarily terminated.

         The juvenile court determined, as a matter of law, that CJP § 3-812 permitted the waiver of the Department's obligation to provide reasonable reunification efforts. The Court of Special Appeals concluded that C.E. has no right to appeal the juvenile court's non-final interlocutory order. We review both of these legal determinations without deference. Id.

          B. Appealability of the Juvenile Court's Waiver

         Our decision regarding the appealability of the juvenile court's waiver of the Department's obligation to provide reasonable reunification services first requires an exploration of the CINA statutory scheme and the progression of such cases.

         1. CINA Statutory Framework and Proceedings

         A local social services department can file a petition to remove a child from a home to protect a child "from serious immediate danger." Md. Code (1973, 2013 Repl. Vol.), CJP § 3-815(b). The department must then seek an immediate court authorization to continue emergency shelter care placement of the child. Id. § 3-815(c). The parties have a right to an attorney "at every stage" of any CINA proceeding. Id. § 3-813(a). To justify continuing emergency shelter care of a child, the court must determine that returning the child to the child's home "is contrary to the safety and welfare of the child"; and removal "is necessary due to an alleged emergency situation and in order to provide for the safety of the child"; or "[r]easonable efforts were made but were unsuccessful in preventing or eliminating the need for removal of the child from the home." Id. § 3-815(d). The court must also decide whether the Department has made reasonable efforts to assist in returning the child to the home, or the reasonableness of the absence of such efforts. Id. § 3-815(e)(3).

         After the emergency shelter care hearing, the juvenile court must hold an adjudication hearing. The rules of evidence apply and the juvenile court must decide "whether the allegations in the petition . . . are true." Id. §§ 3-801(c); 3-817. The court must find: (1) that the child is abused, neglected, has a developmental disability, or a mental disorder, and (2) the child's parent, guardian, or custodian is unable or unwilling to provided appropriate care and attention to the child and the child's needs. Id. § 3-801(f). If the court makes this finding, it then holds a disposition hearing. Id. § 3-819(a); see also Maryland Rule 11-115(a). At this hearing, the court will determine whether a child requires assistance, and if the court makes such a determination, it will then decide the ...


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