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In re Adoption/Guardianship of C.E.

Court of Appeals of Maryland

August 13, 2018

IN RE: ADOPTION/GUARDIANSHIP OF C.E.

          Argued: June 1, 2018

          Circuit Court for Baltimore City Case No. T16106011

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

          OPINION

          HOTTEN, J.

         We consider here whether allowing a child to remain indefinitely in the custody of a third party, without terminating the parental rights of both parents, constitutes a proper exercise of judicial discretion consistent with the relevant provisions of the Family Law Article. As will be explained, the law allows for such discretionary exercise so long as the decision is grounded in the statutory requirements, and supported by the record. In that regard, pursuit of the best interest of the child remains the overarching goal in proceedings involving the termination of parental rights ("TPR") pursuant to Md. Code (1984, 2012 Repl. Vol.), § 5-323 of the Family Law Article ("Fam. Law"). In the present case, a rational finding exists that a continued relationship with C.E.'s father, H.E. ("Father") serves C.E.'s best interest, even where complete custodial reunification is not apparent. It was not therefore an abuse of discretion for the juvenile court to decline to terminate Father's parental rights. However, in the matter of C.E.'s mother, C.D. ("Mother"), the juvenile court's determination that a continued parental relationship served C.E.'s best interest lacked consideration of the relevant statutory considerations found in Fam. Law § 5-323. Accordingly, we affirm in part, and reverse in part, the judgment of the juvenile court.

         BACKGROUND

         C.E. ("C.E." or "the child") is a male child, born in May 2014, to Mother and Father. All of Mother's six other children have entered the foster care system through removal by the Baltimore City Department of Social Services ("Department").

         The lengthy, litigious history of C.E. began shortly after he was born prematurely with complications arising from low birth weight. Before C.E. left the hospital, the Department filed for emergency shelter care in the Circuit Court for Baltimore City. At a hearing on July 11, 2014, the juvenile court granted the Department's request for temporary care and custody of C.E., and placed him with distant relatives while the Department began a Child in Need of Assistance ("CINA")[1] proceedings. On June 16, 2015, the juvenile court found C.E. to be a CINA and awarded custody to the Department for continued relative placement. On Mother's appeal to the Court of Special Appeals, the Court affirmed the judgment of the juvenile court. See In re C.E., No. 0925, Sept. Term, 2015 (Md. Ct. of Sp. App., December 15, 2015), cert. denied, 446 Md. 705, 133 A.3d 1110 (2016).

         On April 20, 2016, the juvenile court held a hearing regarding the Department's motion to waive its obligation to continue to make reasonable efforts to reunify Mother with C.E. The juvenile court granted the Department's motion to waive reunification efforts, concluding that it lacked discretion to deny the motion under § 3-812(d)[2] of the Courts and Judicial Proceedings Article ("Cts. & Jud. Proc") of the Maryland Code, in light of the prior involuntary terminations of Mother's parental rights over four of C.E.'s siblings. Mother appealed. The Court of Special Appeals determined that the juvenile court's decision to waive reasonable efforts for reunification was not appealable and therefore dismissed the appeal. In re C.E., No. 0464 Sept. Term 2016, 2016 WL 7235560 (Md. Ct. Spec. App., Dec. 14, 2016), aff'd, 456 Md. 209, 172 A.3d 476 (2017).

         Following this Court's determination on waiver, the Department filed a Petition for Guardianship with the Right to Consent to Adoption or Long Term Care Short of Adoption. On September 1, 2017, the juvenile court denied the Department's petition. After noting timely appeals to the Court of Special Appeals, C.E. and the Department (collectively, "Petitioners") filed petitions for writ of certiorari, which this Court granted on February 5, 2018. Mother and Father (collectively, "Respondents" or "the parents") responded. Together, Petitioners collectively pose the following five questions before this Court:

1. Whether a CINA child has a protected interest in achieving a timely permanency plan of adoption that transcends his parents' right to raise him, where the three (3) year old child has resided in the same relatives' home since birth and where the trial court found, by clear and convincing evidence, that reunification is "unachievable….in the foreseeable future"?
2. Whether it is error of law for a court to change a CINA child's permanency plan in a [g]uardianship proceeding conducted pursuant to [Family Law] 5-323?
3. Whether the court's application of its findings of exceptional circumstances to justify custody and guardianship to relatives instead of using the exceptional circumstances to support a grant of guardianship, was an error of law in contravention of the statute's clear preference for adoption over custody and guardianship?
4. Did the juvenile court err when it failed to find that Father was unfit to remain C.E.'s legal father in light of its finding, by clear and convincing evidence, that there was no likelihood that Father would ever be able to safely care for C.E.?
5. Did the juvenile court err as a matter of law in its exceptional circumstances analysis, by elevating an incidental "parental" relationship over C.E.'s best interests in achieving the permanence afforded by adoption?

         For reasons that follow, we hold that that the juvenile court acted within its discretion to deny the Department's petition to terminate Father's parental rights, where it is not detrimental to the best interest of the child for the parental relationship to remain intact. However, the juvenile court abused its discretion to grant the Department's TPR petition as to Mother, where a review of the relevant statutory factors in § 5-323(d) resulted in a finding of unfitness and exceptional circumstances by clear and convincing evidence.

         C.E.

         When C.E. was born prematurely in May 2014, he was placed in the Neonatal Intensive Care Unit of Johns Hopkins Hospital, and later transferred to Mount Washington Pediatric Hospital for further care. One of the Department's caseworkers, Nia Noakes, responded to a "risk of harm" report by Johns Hopkins Hospital and request for a safety assessment of a newborn. Upon receipt of the initial report, Ms. Noakes completed a safety assessment of Mother's home with both parents present. Ms. Noakes also consulted the Department's records to determine whether the family had a history with Child Protective Services, at which point she discovered that the Department removed Mother's other children from her care. Thereafter, Ms. Noakes held a Family Involvement Meeting ("FIM")[3] to determine whether C.E. could safely be placed with either Mother or Father. In light of Mother's extensive child protective services interactions and mental health history, the Department determined that C.E. would not be safe with Mother. Father was also not suitable to care for C.E. because he resided in a senior housing complex, which only allowed children to visit for a maximum of two weeks.

         On July 11, 2014, the juvenile court authorized C.E.'s shelter-care placement after his hospital discharge, because Mother "has a history of posing a threat to children" and a long history of psychological conditions that "could prove a safety risk[.]" After the juvenile court granted shelter care, the Department transferred the case to Diana Wade Williams as the permanency caseworker. Two weeks later, the juvenile master approved the CINA petition and ordered C.E.'s placement in the Department's custody.

         In late June or early July 2014, Mother telephoned her cousin, Ms. B., advised her that she could not take C.E. home from the hospital, and asked for permission to provide her contact information to Mount Washington Pediatric Hospital and the Department. Mother and Ms. B. had not been in contact for years prior to C.E.'s birth, and only reconnected when Mother found Ms. B. on Facebook. About one hour after Mother's call, Ms. Wade Williams contacted Ms. B. and requested permission to conduct a background check. By July 15, 2014, Ms. B. and her husband, Mr. B., passed the necessary clearances. Upon C.E.'s July 21, 2014 hospital discharge, the Department placed C.E. with Mr. and Ms. B., where he has remained.

         After C.E.'s release from the hospital, C.E. received health intervention services until January 2015. C.E. continues to have seizures, and receives medication for epilepsy by a neurologist. C.E. also exhibits delays in physical growth and has problems with communication, executive functions, and attention deficit. He is undergoing a formal diagnostic process at Johns Hopkins Bayview Medical Center to determine whether he is on the autism spectrum. Reports prepared by Laurie Higginbotham, LCSW-C, a clinical social work supervisor for the Department, otherwise indicate that C.E. takes direction from Mr. and Ms. B. and is happy in their home. Mr. and Ms. B. want to adopt C.E. and are willing to allow Mother and Father to have occasional on-going contact with C.E. at a neutral location.

         Mother

         Since 1996, the Department has interacted with Mother arising from abuse and neglect allegations involving her six children. Because of her inability to care for her children, Mother lost parental rights to four of her six children: I.S., L.B., J.D., and M.D. Mother'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, following a contested hearing, a juvenile court terminated Mother's parental rights over both I.S. and L.B. The Court of Special Appeals affirmed the juvenile court's termination of Mother's parental rights. See In re Adoption of India S., No. 2032, Sept. Term 2003 (Md. Ct. Spec. App. Nov. 29, 2004). Mother's fourth and fifth children, J.D. and M.D., were both found to be CINA in 2012. After a contested hearing in 2014, Mother's parental rights with respect to J.D. and M.D. were also terminated. Again, the Court of Special Appeals affirmed. In re Adoption of Joy D., No. 2307, Sept. Term 2014, 2015 WL 5821580 (Md. Ct. Spec. App. Aug. 13, 2015). Mother's other son, J.S.B., was in foster care for fourteen years, aging out on his twenty-first birthday in 2012. When Mother had her sixth child, C.E., in 2014, the Department intervened once again. In re C.E., No. 0925, Sept. Term 2015 (Md. Ct. Spec. App. Dec. 15, 2015), cert. denied, 446 Md. 705 (2016).

         Mother has a well-documented history of mental illness, causing her to lash out against her children. Her "previous mental health diagnoses include paranoia, adjustment disorder, major depression, somatization disorder, borderline personality disorder, mania, and bipolar affective disorder." In re C.E., 456 Md. at 211, 172 A.3d at 477. Mother believed her daughter J.D. required treatment by a "licensed professional exorcist, a psychic spiritual adviser, a polygraph expert and a voodoo witch doctor." Mother referred to J.D. as "evil devil[, ]" "demon of hell," and requested she be hospitalized to excise demons. In re Joy D., 216 Md.App. 58, 65, 84 A.3d 223, 227 (2014), abrogated by In re C.E., 456 Md. at 209, 172 A.3d at 476. Mother threatened to kill one of the Department's social workers, which led to J.D. becoming increasingly afraid and crying uncontrollably. Similarly, Mother exhibited anxious and angry behavior toward M.D. Mother was observed beating M.D.'s back when he was twenty-one months old. Id. at 64, 84 A.3d at 226. Throughout the proceedings involving Mother's other five children, the Department provided numerous services to assist with her mental health issues, but none were successful.

         Following C.E.'s birth, the Department attempted to enter into service agreements with Mother, and made numerous referrals for mental health services. During the summer of 2014, Mother received treatment from Stanley Karanja, LCPC, at Therapeutic Living for Families. Mother filed a complaint against him, claiming that he engaged in unethical practices, rendered false diagnoses, and falsified her mental health records. Mother lodged similar complaints against three of her previous therapists at three different treatment facilities. In March 2015, Mother participated in three counseling sessions with Turn Around, Inc., an agency that provides services to victims of domestic violence and sexual assault. On March 30, 2015, Turn Around Inc. recommended that Mother receive more intensive services from an in-home program such as Mosaic Community Services Psychiatric Rehabilitation Program. Mother attended a May 21, 2015 appointment with Mosaic Community Services Psychiatric Rehabilitation Program and attended a diagnostic evaluation on June 12, 2015. However, Mother requested a referral to Hebron House Inc., a therapy program, where she participated in another assessment on June 26, 2015. Mother claimed she was no longer comfortable with the assigned therapist, and requested that Hebron House Inc. assign another therapist and provide therapy during Mother's visitation with C.E. at the Department. In 2015, during Mother's home-therapy session, the therapist "felt threatened by [Mother's] combative stance and she had to leave because the atmosphere was no longer conducive for therapeutic rapport building." As a result, Hebron House Inc. was unwilling to continue to provide further therapy to her and recommended outpatient psychiatric services through a hospital.

         In fall 2015, Mother received mental health services from two other programs but ceased therapy on her own volition. By March 3, 2016, Mother was receiving therapy through another program, but was discharged after the treatment team "observed a severe pattern of fault finding and no evidence of accepting ownership of behaviors, experiences and outcomes on [Mother's] part." The treatment providers concluded that Mother was unwilling to address her mental health problems and that her prognosis was poor if she did not engage in appropriate services.

         In July of 2016, Mother sought and received treatment again but continued seeking out another therapist, hoping to be reunited with her son. After August 2016, Mother did not seek psychiatric treatment until January 1, 2017. Treatment resumed at that time but was terminated on May 18, 2017 when the Johns Hopkins Hospital Community Psychiatry program discharged her because it "had not been able to establish an effective physician/provider relationship...." Mother filed a complaint with Johns Hopkins Hospital Patient Relations Department, but remained discharged. Mother claims that she suffers from legal abuse syndrome, which is not a currently recognized mental illness, as a result of the Department removing five other children from her care. Otherwise, Mother denies that she has any mental illness.

         Father

         Father began his relationship with Mother in 2010, which was marked with instances of angry outbursts by Father. Father is employed full-time as a dishwasher. He has resided in senior citizen housing since C.E.'s birth, which prohibits child residents. Father's first child, who is an adult, entered the foster care system during minority and was raised by Father's sister.

         Father entered into a service agreement with the Department that was in effect from July 11, 2014 to September 11, 2014, and committed to finding housing where he could reside with C.E. In July of 2014, the Department referred Father to the Center for Urban Family's parenting classes, which occurred twice a week for three months. Father initially did not attend the classes until January 12, 2015. He completed a weekly ten-week course on positive parenting skills. On June 17, 2017, the juvenile court determined that the Department had made reasonable but unsuccessful efforts to reunify C.E., and ordered that the Department continue to supervise Father's visits with C.E. Father was also ordered to submit to clinical evaluation.

         On July 21, 2015, Father underwent the clinical evaluation. Brenda Harriel, a Licensed Clinical Social Worker from the Court Medical Services Office, is an expert in clinical and forensic social work, with an emphasis on the diagnosis and treatment of DSM-5 diagnoses and parenting assessment. Father presented with symptoms of schizotypal personality disorder, a pervasive, enduring pattern of distorted perceptions, which in Ms. Harriel's estimation, is an untreatable personality disorder. Ms. Harriel explained that Father exhibited "symptoms of preoccupation with religion to explain Respondent's [C.E.'s] development.... [C]ognitive, or perceptual distortions. He presented with odd beliefs, peculiar behaviors, inappropriate or constrictive affect, and reduced capacity for close relations." It was Ms. Harriel's expert opinion that Father had "no real interest in… taking care of" C.E. and that, given his personality disorder and refusal to accept services, he "would be unable to provide proper care [for C.E.] in a constructive, protective, and nurturing [way]."

         Mother and Father's Visitation with C.E.

         Since C.E.'s birth, the Department facilitated regular visits between C.E., Mother, and Father. The visits were scheduled weekly during 2014, and bi-weekly from 2015 to 2017. Both parents attended most of the scheduled visits in 2014. In 2014, Mother canceled several visits, and sometimes when she attended she refused to hold C.E. Mother additionally asked to hold several visits as "phone visits."

         In 2015, both Mother and Father attended all scheduled visits, but not all visits in 2016. These visits were marked with outbursts by C.E. towards his Mother, but generally positive interactions with Father. The Department's notes indicate that during the January 19, 2016 visit, C.E. would let Father but not Mother hold him. During the February 23, 2016 visit, when Mother tried to kiss C.E., he struck her in the face. When Father went to the bathroom, C.E. cried and fell on the floor until Father returned. In March of 2016, Mother refused to visit.

         On December 12, 2016, during Ms. Higginbotham's first visit, there were no toys in the room. Ms. Higginbotham suggested ways Mother and Father could interact with C.E., but Mother was not receptive to these suggestions. Ms. Higginbotham subsequently brought a few toys in from another room, and encouraged Father to use them to engage C.E., but C.E. would not cooperate. Mother became upset and left. Father fed C.E. crackers sent by Mr. and Ms. B., one at a time, but C.E. wanted the whole bag. C.E. threw his juice cup on the floor, and spilled all the crackers trying to grab the bag. Father tried to give him some yogurt with a spoon, but C.E. did not want it. C.E. slapped the spoon and spilled the yogurt on Father's pants. Thereafter, Father ended the visit. After observing Father with C.E., Ms. Higginbotham opined that Father sometimes interacted appropriately with C.E., but caring for him consistently would likely be too stressful for Father. In Ms. Higginbotham's opinion, C.E. required focus and attention that Mother and Father could not provide. In February of 2017, Mother ended her visit early when C.E. again hit her in the face.

         The Juvenile Court's Decision

         The juvenile court concluded that it was not in C.E.'s best interest to terminate Mother and Father's parental rights, despite a finding that Mother was unfit by clear and convincing evidence, that Father was unfit by a preponderance of the evidence, and that exceptional circumstances existed that would make a continued relationship with either parent contrary to C.E.'s best interest. Based on these findings, the juvenile court determined that it was in C.E.'s best interest to change his permanency plan to custody and guardianship to Mr. and Ms. B. The juvenile court found by a preponderance of the evidence that reunification with Mother or Father will likely never be achieved. The juvenile court based this determination on both Mother and Father's static personal and financial situations. The court found that although Mother had a desire to be reunified with C.E., "Mother is unable and or unwilling to engage in sustained, consistent effective mental health treatment that will allow her to safely manage the inevitable stress of parenting now or ever." Similarly, the juvenile court concluded that Father also possesses a sincere desire to be reunified and parent C.E., but his apparent unfitness to parent stemmed from both his mental health issues and his unwillingness or inability to find housing for both C.E. and him. Father's unfitness, however, rested in greater part "upon his near total reliance on Mother to parent [C.E.] when he is unavailable during extensive working hours." Although a plan to utilize day care could provide a safe plan for reunification, continued failures to treat Mother's mental health issues indicate that Mother could not receive this necessary support.

         The juvenile court reasoned that "[w]hile adoption remains the gold standard of permanency where reunification is not safely possible, in this case the very strong commitment of relatives… to his care, convince this Court that [C.E.] will have the benefit of stability and permanence with the plan adopted here in childhood and into his adulthood." While neither parent was able to care for C.E., the juvenile court was convinced that C.E. has a sufficient connection with his parents, particularly with Father, to generate concern regarding the termination of the parental relationship, and that visitation with Mother and Father has episodically gone well.

         The juvenile court utilized the factors enumerated in Fam. Law § 5-323(d)(1), and analyzed the Department's efforts with reunification services, the continued challenges to Mother and Father's mental health, the significant caregiving role that Mr. and Ms. B. play in C.E.'s life, and the special relationship between C.E. and his father. The court reasoned that neither parent had displayed essential safe parenting skills toward C.E., particularly in response to his possible autism spectrum behaviors, seizure disorder, and speech development delays. Additionally, neither parent had contributed financial support towards C.E.'s care and maintenance. Following these considerations, the juvenile court found that exceptional circumstances existed to change C.E.'s permanency plan to guardianship with Mr. and Ms. B., without terminating Mother and Father's parental rights.

         STANDARD OF REVIEW

         In reviewing the decision of a juvenile court to terminate parental rights, Maryland appellate courts employ three different, but interrelated, standards of review. See In re Adoption/Guardianship of Ta'Niya C., 417 Md. 90, 100, 8 A.3d 745, 750-51 (2010). Factual findings are reviewed under the clearly erroneous standard; legal conclusions are reviewed de novo, and the juvenile court's "ultimate decision" is reviewed for an abuse of discretion. See id.; see also In re Adoption/Guardianship of C.A. & D.A., 234 Md.App. 30, 45, 168 A.3d 1088, 1097 (2017).

         A trial court's findings are clearly erroneous if they are not supported by substantial evidence in the record. Murphy v. 24th St. Cadillac Corp., 353 Md. 480, 497, 727 A.2d 915, 923 (1999). There is an abuse of discretion where "no reasonable person would take the view adopted by the trial court,' or when the court acts 'without reference to any guiding rules or principles.'" Santo v. Santo, 448 Md. 620, 625-26, 141 A.3d 74, 77 (2016) (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312, 701 A.2d 110');">701 A.2d 110, [118] (1997)). Put another way, this Court will not reverse the juvenile court's ...


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