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In re Adoption/Guardianship of H.W.

Court of Appeals of Maryland

July 16, 2018

IN RE: ADOPTION/GUARDIANSHIP OF H.W.

          Argued: April 6, 2018

          Circuit Court for Baltimore City Case No.: T15280012

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

          OPINION

          ADKINS, J.

         Proceedings to terminate parental rights necessitate maintaining a delicate balance between a parent's constitutional right to raise their children, the State's interest in protecting children, and the child's best interests. Here, we return to the often-complicated question of exceptional circumstances in the context of terminating parental rights ("TPR") under Md. Code (1984, 2012 Repl. Vol.), § 5-323 of the Family Law Article ("FL"). We consider if, when assessing whether exceptional circumstances exist that make continuing the parental relationship detrimental to a child's best interests, a juvenile court errs by considering custody-specific factors used to determine exceptional circumstances in third-party custody disputes. See, e.g., Ross v. Hoffman, 280 Md. 172 (1977).

         FACTS AND LEGAL PROCEEDINGS

         H.W. was born in April 2012 to S.B. ("Mother"), an 18-year-old former CINA[1] and M.W. ("Father"). Father had been convicted in Connecticut seven years earlier of sexual assault in the first degree and was released in 2009. Four months before H.W. was born, Father was extradited from Maryland to Connecticut and incarcerated there. Father was released in January 2013 and remained in Connecticut on probation. He has never seen H.W.

         In October 2012, Mother left H.W. unattended during a bath. When she returned, she found him face down in the water. H.W. was hospitalized and on life support for two weeks. In December 2012, H.W. was found to be a CINA and was placed in Mother's care under an Order of Protective Supervision. Some months later, the Baltimore City Department of Social Services ("Department") sought emergency removal of H.W. from the home, which a juvenile court granted. In July 2013, H.W. was returned to Mother's care under another Order of Protective Supervision, which was rescinded in December 2013.

         Mother gave birth to twins, H.J. ("Brother") and H.J. ("Sister")[2] in January 2014. In June 2014, Mother was bathing Brother in the kitchen sink under running water. Sister was in her car seat in a different room with a bottle. Sister began choking and Mother left Brother unattended to respond. When Mother returned to the kitchen, she discovered that Brother had suffered severe burns. He was hospitalized for nearly a month. The Department promptly filed Petitions with Requests for Shelter Care for all three children, which the juvenile court granted. H.W. and Sister were placed in a foster home belonging to Mr. and Mrs. M. on June 20, 2014. After being discharged from the hospital, Brother was placed in a separate foster home to address his specific medical needs, but he eventually joined H.W. and Sister at the M. home.[3] All three children were declared CINA.

         At the time H.W. was removed, he had a healed burn on the side of his forehead. Mother told the Department caseworker that H.W. had run into a lit cigarette while playing. Mother reported that she contacted his pediatrician, who advised her to put Vaseline on the burn, but sought no other medical attention.

         Lori Lee, H.W.'s caseworker, attempted to locate Father in July 2014 and received information that he was incarcerated in Kentucky. She sent a letter to him but received no response.[4] In late 2014, while on probation in Connecticut, Father learned that H.W. was in the State's custody, through either a summons or a letter from Lee. Father obtained permission to travel to Baltimore for a CINA hearing in December 2014. Mother introduced Lee to Father the morning of the hearing. Father had thought the hearing was in the morning and he wanted to visit H.W. When Lee explained that the hearing was scheduled for the afternoon, Father informed Lee that he would not be able to stay because he had to return to Connecticut. Lee told Father why H.W. was in the State's care, and that she would like for him to visit with H.W. Father indicated that he would speak with his probation officer, so he could return to Baltimore to visit with H.W. Father, however, did not immediately return to Connecticut. Instead, he left the courthouse with Mother and made alternate travel arrangements to leave the next day. He did not attend the December 2014 hearing.

         In January 2015, Lee had a phone conversation with Father's probation officer while Father was present. Father wanted to attend an upcoming hearing and his probation officer indicated that she and Father would discuss whether or not he would receive permission to do so. Later that month, Lee sent a letter to Father's probation officer providing additional information about the hearing. She did not receive a response and Father did not attend the hearing. Lee sent additional letters to Father in July and August, notifying him of upcoming hearings and enclosing copies of court orders. She invited Father to contact her to "discuss any questions you may have regarding [H.W.] and [to] schedule visits." Lee did not receive a response. In August 2015, Father was incarcerated again for violating his probation.

         Father wrote Lee a letter in October 2015, notifying her of his incarceration. He identified an aunt and his brothers as relative resources for H.W. He included contact information for his aunt and mother, but not for his brothers. Father expressed that he wanted to be in H.W.'s life. He claimed that his probation officer had refused to allow him to attend hearings in Maryland. Father had "requested to be sentenced to prison in pursuit of no more probation, which will allow [him] to relocate back to Baltimore . . . ."

         Father explained that he had difficulty communicating with Mother by phone but occasionally reached her through social media. He stated that Mother became "stubborn and withdrawn when [he] asked of [H.W.]'s whereabouts." Father also asked Lee for resources, "I don't know what you can do for [H.W.] and I, but I am sincerely asking for your help for our unity?" Father anticipated being "incarcerated for approximately 2 y[ea]rs" but hoped that "you and your department have left me some options as [H.W.]'s father." He asked Lee to send "any information about the progress that has been made with [H.W.]'s placement."

         Lee investigated Father's aunt, who passed her fingerprint and background checks. When Lee contacted the aunt about completing a home inspection, she declined to be a resource. Rather, she was willing to be "a back-up plan to [the Department's] back-up plan" and thought it best that H.W. remain with his foster family. Lee sent Father a letter in November 2015 notifying him of this development and informing him that his brothers had not contacted her regarding H.W.

         Lee explained that H.W.'s foster family was willing and able to adopt him, and that H.W. was having behavioral issues. She also advised Father of an upcoming hearing in December and asked him to contact her if his situation changed, or if he had other relatives the Department could investigate. Between March and November 2016, Lee sent Father six more letters with copies of court orders concerning H.W. Father did not respond.

         In October 2015, the Department filed a Petition for Guardianship with the Right to Consent to Adoption or Long Term Care Short of Adoption for H.W. Father and Mother objected, but later consented. Father, however, withdrew his consent and the matter proceeded to a contested hearing in 2017.

         The TPR Hearing

         Lee testified at the hearing, describing her meeting with Father in 2014, subsequent attempts at communication with him, and her investigation of Father's aunt. Lee acknowledged that Father had been under legal constraints since before H.W. went into care. During her testimony, she also described H.W.'s placement with the M. family and her monthly visits with the children. H.W. had some special needs relating to behavioral problems and had been diagnosed with ADHD. He was receiving treatment and the M. family worked with him through therapy. The M. family was in contact with Mother through phone and e-mail.

         Lee testified that H.W. is emotionally attached to Mr. and Mrs. M., and calls them PopPop and Mommy. H.W.'s twin siblings are also placed with the M. family and H.W. has bonded with them-"truly a big brother." Lee stated that she had no concerns about H.W.'s care and opined that it would be detrimental to H.W. to remove him from the M. home because of his emotional attachments and because it would "set him backwards in his treatment, the therapy that he's been going through for his behavioral problems." Lee recommended that Mr. and Mrs. M. adopt H.W.

         Father testified by phone from the Brooklyn Correctional Facility in Connecticut, where he was serving a 30-month sentence for violating his probation. During his testimony, Father explained that Mother did not contact him after he was extradited from Maryland in 2011. He had sporadic contact with Mother and, although he always asked to speak to H.W. during phone calls, this rarely happened. Mother did not share much information about H.W. with him, and on at least one occasion, they argued about money. Father explained that his probation officer had denied him permission to attend other hearings for H.W.

         Father had several probation violations and had tested positive for marijuana. He explained that since he had been in Connecticut, "the majority of [his] situation has been homelessness," and that he had not been able to provide for himself. Father had been employed during his probation with a fast food restaurant and with a printing company. In early 2014 he sent money to his brother, who babysat H.W., for "Pampers, . . . for food, for a haircut, things like that."

         Father's mandatory release date was in February 2018, but he anticipated release as early as November or December 2017 based on earned credits. Upon release, he would no longer be subject to probation conditions. He testified that he enrolled in a program called "Good Intentions[, ] Bad Choices" but that no other programs had been recommended to, or required of him. He had been referred to programs during his probation, including a drug treatment program, which he had not completed. Father did not think he needed counseling, explaining that he writes in his journal and has been doing his own reading to educate himself.

         After release, Father planned to come to Baltimore and obtain custody of H.W. Although most of Father's family is in Baltimore, he did not have any resources identified in Baltimore-he was not in "re-entry stage" to "transition back into society" yet. He was unsure where he would live in Baltimore but hoped that family might help him. Father admitted that he had "no support at all." He was not sure how long he would stay in Baltimore, but if he did obtain custody of H.W., the maximum he would stay would be five years.

         Father said he would keep H.W. in contact with the twins, and introduce H.W. to his teenage daughter, who lives in Philadelphia with her mother. Father explained that he was changing his life and did not want to give his son away to another family. He testified that he wanted to keep his parental rights because he wanted to be a "present" and "active" father.

         The Juvenile Court's Findings

         The juvenile court considered Lee's and Father's testimony, as well as court orders, H.W.'s medical records, Lee's letters to Father, Father's letter to Lee, and a bonding evaluation between H.W. and the M. family.[5] Acknowledging the fundamental right of parents, the court also emphasized that the State has an interest in protecting vulnerable children and that the juvenile court must 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 . . . ." The court then analyzed the statutory factors set forth in FL § 5-323(d), [6] as well as nine additional factors[7] to "determin[e] whether exceptional circumstances exist[ed]:"

1. Length of time child has been away from the biological parent[;]
2. Age of child when care was assumed by caretakers[;]
3. Possible emotional effect on child if custody changed to biological parent[;]
4. Possible emotional effect on child if custody is given to caretaker[;]
5. Period of time which elapsed before parent sought to reclaim child and efforts made toward reclamation[;]
6. Nature and strength of ties between child and current caretaker[;]
7. Intensity and genuineness of parent's desire to have the child[;]
8. Stability and certainty as to child's future in the custody of the parent[; and]
9. Stability and certainty as to child's future in custody of the caretaker.

         Based upon the statutory factors in FL § 5-323(d), the juvenile court concluded that there was not clear and convincing evidence that Father was unfit. The juvenile court found "by clear and convincing evidence[, ] based on the relevant statutory factors[, ] that exceptional circumstances exist[ed] to make the continuation of the parental relationship detrimental to the best interests of the child." It awarded guardianship to the Department.

         The Court of Special Appeals vacated the juvenile court's decision. See In re Adoption/Guardianship of H.W., 234 Md.App. 237 (2017). It concluded that the juvenile court erred by using four factors related exclusively to custody of the child in deciding to terminate Father's parental rights. Id. at 251. Based on the differences between a proceeding to terminate parental rights and a custody proceeding, the Court of Special Appeals reasoned that factors relating solely to custody did not belong in a TPR analysis. Id.

         We granted certiorari to resolve the following question:[8]

1. Are juvenile courts permitted to consider custody-specific factors in termination of parental rights proceedings, specifically: (a) the potential emotional effect of the change in custody; (b) the instability and uncertainty of the child's future in the parent's custody; and (c) the stability and certainty of the child's future in the custody of the prospective adoptive parents?

         We shall conclude that, when terminating parental rights, a juvenile court must base its assessment on the statutory factors set forth in FL § 5-323. Consideration of exclusively custodial factors risks blurring important distinctions between parents and third-party custodians. In this case, the juvenile court's inclusion of custody-specific factors did not taint its decision because it made specific findings on each relevant statutory factor and its Ross findings were substantively the same as its more appropriate statutory findings.

         STANDARD OF REVIEW

         We use three distinct, but interrelated standards to review a juvenile court's decision to terminate parental rights. In re Adoption of Ta'Niya C., 417 Md. 90, 100 (2010). The juvenile court's factual findings are left undisturbed unless they are clearly erroneous. We review legal questions without deference, and if the lower court erred, further proceedings are ordinarily required unless the error is harmless. Id. The lower court's "ultimate conclusion," if it is "founded upon sound legal principles and based upon factual findings that are not clearly erroneous," will be "disturbed only if there has been a clear abuse of discretion." Id. (quoting In re Adoption/Guardianship of Victor A., 386 Md. 288, 297 (2005)) (brackets omitted).

         DISCUSSION

         The Department and H.W. contend that the Court of Special Appeals committed legal error when it decided that use of the Ross v. Hoffman, 280 Md. 172, 191 (1977), factors relating to custody was impermissible in a TPR proceeding under FL § 5-323. They assert that the statute does not create an exclusive list of factors to assess both exceptional circumstances and analyze a child's best interests. Because the ultimate standard is the child's best interests, they reason that a juvenile court should be free to assess any relevant factors, including custody. Further, they argue that FL § 5-323 specifically includes custodial factors relating to the child's placement.

         Father concedes that a court may look beyond the statutory factors, but he maintains that the juvenile court must restrict its extra-statutory analysis to factors relevant to whether termination of parental rights is in the child's best interests. Father, relying on In re Adoption/Guardianship of Rashawn H., 402 Md. 477 (2007), argues that because custody and TPR are separate inquiries, factors relevant to a custody analysis do not translate to the TPR context because parental success in TPR "merely preserves the possibility of future reunification . . . ." (Emphasis in original). Custody-specific considerations cloud the analysis, he reasons, because the question in a TPR proceeding is not whether the existing custodial arrangement is in the child's best interests, rather, it is whether continuing the parental relationship is detrimental to the child.

         In Ross, 280 Md. at 179, we addressed whether exceptional circumstances were present in a custody dispute between a parent and a third party that merited granting custody to the third party. We identified several factors that we considered "of probative value in determining the existence of exceptional circumstances[, ]" including:

the length of time the child has been away from the biological parent, the age of the child when care was assumed by the third party, the possible emotional effect on the child of a change of custody, the period of time which elapsed before the parent sought to reclaim the child, the nature and strength of the ties between the child and the third party custodian, the intensity and genuineness of the parent's desire to have the child, [and] the stability and certainty as to the child's future in the custody of the parent.

Id. at 191.

         The parties do not challenge the use of some of these factors in the proceeding below. Rather, their dispute centers on four factors: (1) the possible emotional effect on the child if custody was changed to the biological parent; (2) the possible emotional effect on the child if custody was given to the caretaker; (3) the stability and certainty as to the child's future in the custody of the parent; and (4) the stability and certainty of the child's future in the custody of the caretaker.

         We look first to the fundamental principles associated with a court's decision to terminate parental rights and the statutory scheme set forth in FL § 5-323.

         The Transcendent Standard And FL § 5-323

         This Court has long recognized that parents have a fundamental right to raise their children and make decisions about their custody and care. See In re Adoption of Jayden G., 433 Md. 50, 66-67 (2013); In re Adoption/Guardianship of Victor A., 386 Md. 288, 298-99 (2005). As we explained in Rashawn H., 402 Md. at 495, there is "a presumption of law and fact-that it is in the best interest of children to remain in the care and custody of their parents." These principles are not absolute-they are tempered by the State's interest in protecting children. See Jayden G., 433 Md. at 68. The "transcendent" standard in TPR proceedings has always been the child's best interests. Ta'Niya C., 417 Md. at 112; Jayden G., 433 Md. at 67; Rashawn H., 402 Md. at 496.

         The General Assembly has established a legal framework to assess whether it is in a child's best interests to terminate parental rights that balances the child's best interests and the appropriate protection for parental rights. FL § 5-323(b) establishes the burden of proof and findings required for a juvenile court to terminate parental rights:

If, after consideration of factors as required in this section, a juvenile court finds by clear and convincing evidence that a parent is unfit to remain in a parental relationship with the child or that exceptional circumstances exist that would make a continuation of the parental relationship detrimental to the best interest of the child such that terminating the rights of the parent is in the child's best interests, the juvenile court may grant guardianship of the child without consent otherwise required under this subtitle and over the child's objection.

(Emphasis added). Subsection (d) requires that the 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 . . . ...


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