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In re H.R.

Court of Special Appeals of Maryland

August 29, 2018

IN RE: H.R., E.R. & J.R.

          Circuit Court for Montgomery County Case No. 0000006Z1723R00

          Eyler, Deborah S., Kehoe, Beachley, JJ.


          Eyler, Deborah S., J.

         On November 3, 2017, the Circuit Court for Montgomery County, sitting as a juvenile court, entered orders granting petitions filed by the Montgomery County Department of Social Services ("the Department"), an appellee, to terminate the parental rights of Mr. R. ("Father"), the appellant, in H.R., E.R., and J.R., also appellees.[1] The children's mother, Ms. C. ("Mother"), consented to the termination of her parental rights. At the time of the proceedings, H. was 6 years old, E. was 5 years old, and J. was 3 years old. Two older children, R.R., age 10, and Y.R., age 9, are not involved in this appeal.

         Father presents three questions, which we have combined and rephrased as two:

I. Did the juvenile court err by taking judicial notice of and/or by admitting as public records materials from the children's CINA files and materials related to Father's criminal cases during the contested TPR hearing?
II. Did the circuit court err or abuse its discretion by finding that Father was unfit to maintain a parental relationship with the children?

         For the following reasons, we shall affirm the orders of the juvenile court.


         Father and Mother have five sons together.[2] They have never been married. The children lived together with Father and Mother from birth through February 2015, except for a brief period in 2014 when they lived with relatives in Ohio.

         The Department's involvement with Father and Mother began in July 2014. At that time, Father, Mother, and the children were living in an apartment on Piney Branch Road in Silver Spring. On July 25, 2014, the Department received a report of neglect after Father and Mother both were arrested and charged with first- and second-degree assault, and distribution of and conspiracy to distribute controlled dangerous substances ("CDS"). Father also was charged with a fourth-degree sexual offense. The charges stemmed from allegations made by two 16-year-old girls who Father and Mother hired to babysit the children. According to the girls, in their presence, Mother performed fellatio on Father multiple times; Father and Mother gave them Adderall; Father forcibly kissed one of the girls and placed her hand on his penis; and Mother physically assaulted one of the girls.

         While Father and Mother were in pre-trial detention, the children's maternal aunt took them to Ohio, where Father also had relatives. A social worker with the Department asked the local department in Ohio to assess the children's safety. The Ohio department reported that the relative placement was suitable in the short-term.

         On July 30, 2014, a Department social worker went to the Montgomery County Detention Center to meet with Father and Mother. They declined to meet with her.

         On August 7, 2014, Father and Mother both were released on bond pending trial. The children remained in Ohio.

         A week later, the Department received a report that Father might be "barricaded in his apartment threatening to 'blow it up.'" Father received inpatient psychiatric care for four days following that incident.

         Father contacted the Department in early September 2014, advised that he had spent time in the hospital, and informed a social worker that he wanted to retrieve his children from his family in Ohio but that a condition of his bond was that he not leave Maryland.

         Ultimately, Father was able to modify his bond conditions to permit him to go to Ohio and, by October 2, 2014, he had retrieved the children and was again living with them in the Silver Spring apartment. On that day, the Department received a report of unsafe home conditions. The reporter stated that Father was entering the apartment by climbing up a balcony because the door to the apartment was off its hinges and impassible. The conditions inside the apartment were "disgusting," "squalor," and "torn apart." Father and Mother fled with the children when the reporter advised that he or she was calling the Department.

         From November 2014 to February 2015, Mary Shine, an in-home services supervisor for the Department's Child Welfare Services ("CWS") division, was assigned to the children's case. During that time, the Department provided family preservation services to Father and Mother, including gift cards for groceries and gasoline. Father, Mother, and the children sometimes stayed at the apartment and sometimes stayed in hotels. Father and Mother acknowledged that the condition of the apartment was terrible but told Ms. Shine that it had been damaged when the police broke down the door to arrest them in July 2014, and again when the SWAT team entered the apartment in August 2014 because Father was threatening to blow it up. Father described the apartment looking like "Hurricane Katrina went through it."

         During home visits, Ms. Shine observed messy, dirty conditions in the apartment and very little food for the children. The children appeared "bonded" with their parents. Ms. Shine was concerned about both parents' mental health issues and about their pending criminal charges. Father and Mother did not have any plans for the children in the event they were convicted, but Father was adamant that the children not be returned to family members in Ohio.[3]

         In January 2015, Father and Mother canceled four home visits. When Ms. Shine arrived for a scheduled home visit on January 28, 2015, no one was home. She waited until, eventually, Father arrived at the apartment. Father told Ms. Shine that Mother was at the hospital with H., E., and J., and that she was "losing it" because she had stopped taking her psychotropic medications. Father agreed to enter into a "Voluntary Placement Agreement" for the children to be sheltered, but then did not show up to a February 2, 2015 meeting to execute that agreement.

         On February 3, 2015, the children were removed from the home and placed in shelter care. On that day, Ms. Shine went to the apartment because the older children had missed two days of school in a row. Mother answered the door, but refused to let Ms. Shine in. She said she would get the children and open the door in a moment, but then did not do so. A pizza delivery person arrived at the house and Mother opened the door for him, but still refused entry to Ms. Shine. After ten minutes passed, Ms. Shine called the police. Father and Mother opened the door after the police arrived. The home was littered with trash and clothing.

         On February 4, 2015, the Department filed petitions in the juvenile court to adjudicate H., E., and J. children in need of assistance ("CINA").[4] At that time, H. was 4 years old, E. was 2 years old, and J. was 11 months old. H. and E. were placed together in an agency foster home, where they have remained throughout the instant proceedings. J. was placed in another foster home, where he also has remained.[5]

         On February 25, 2015, Father and Mother each were convicted following jury trials of two counts of distribution of CDS and one count of conspiracy to distribute. Father also was convicted of one count of fourth degree sexual offense. On March 9, 2015, Father was sentenced to two terms of five years' incarceration on each of the CDS counts and one year for the fourth-degree sexual offense, all to be served concurrently. All but three years of that sentence was suspended in favor of a term of five years' supervised probation. Mother later was sentenced to a term of incarceration as well, but it was suspended in favor of probation.

         On March 11, 2015, Father and Mother stipulated to all the facts alleged in the Department's amended CINA petitions. The court found based upon those facts (most of which were recounted, supra) that the children were CINA and committed them to the custody of the Department, with a permanency plan for reunification. The court ordered that Father would not be permitted in-person visits with the children at his correctional facility until further order of the court.

         Around that time, Lori Weinstein, a social worker in the CWS division, was assigned to J.'s case and to be Father's assigned parent worker. Latashia Morton-Warren, another CWS social worker, was assigned to H.'s and E.'s cases.

         Father was incarcerated for two years and three months. He spent most of that time at Roxbury Correctional Institute ("RCI"), in Hagerstown, although he briefly was incarcerated at the Maryland Correctional Training Center ("MCTC"), also in Hagerstown, and spent over four months at the Patuxent Institution, in Jessup, receiving intensive psychiatric care. During the first year of Father's incarceration, he was permitted telephone and written communication with the children, per the juvenile court's order. He moved to revise the restriction on visitation and, by order entered March 7, 2016, the juvenile court granted Father permission to have once monthly visits with the children. Initially, the juvenile court ordered that the three younger children visit with Father together and the two older children have a separate visit. On July 6, 2016, that requirement was removed, and all five children met with Father together for a monthly visit. Father successfully moved to modify visitation to return to the separate monthly visits. An order to that effect was entered on July 22, 2016.

         On May 8, 2017, the Department filed petitions for guardianship and to terminate Father's (and Mother's) parental rights. Father timely filed an opposition to the petitions. Mother filed a consent to the termination of her parental rights.

         On June 19, 2017, Father was released from prison. Around the same time, Brooke Hinkle, a CWS social worker, took over for Ms. Weinstein, becoming J.'s caseworker and the caseworker for Father (and Mother).

         On July 31, 2017, and August 11, 2017, Father was evaluated by Alex Rodrigues, Ph.D., a psychologist, at the Department's request. Father refused to sign a release to permit Dr. Rodrigues to speak to his current and former treatment providers. As we shall discuss in more detail, infra, Dr. Rodrigues diagnosed Father with bipolar disorder with psychosis. He later added a provisional diagnosis of anti-social personality disorder ("ASPD").

         On October 13, 2017, the juvenile court held a permanency planning review hearing and granted the Department's request to change J.'s plan to adoption by a non-relative, i.e., his current foster mother, and to change H.'s and E.'s plans to custody and guardianship.[6] Father appealed from those orders, but that appeal has been stayed pending the outcome of the instant appeal.

         A contested TPR hearing went forward on October 16, 17, 18, and 20, 2017. In its case, the Department called five witnesses: Dr. Rodrigues; Ms. Hinkle; Ms. Morton-Warren; Timothy Cox, a social worker at RCI; and Angela M., J.'s foster mother. It introduced into evidence the de bene esse deposition of Ms. Weinstein.

         Dr. Rodrigues was accepted as an expert in forensic psychology. He testified that his evaluation of Father was based upon a clinical interview, a review of behavioral observations, and psychological testing. Ordinarily he would have spoken to past and current treatment providers and reviewed past treatment records, but Father declined to sign releases to permit him to do so. Based upon his evaluation, Dr. Rodrigues diagnosed Father with "other specified bipolar disorder." That condition is characterized by "oscillating moods," primarily mania and depression. Dr. Rodrigues opined that Father met all the directly observable criteria for bipolar disorder: irritability, grandiosity, pressured speech, and tangential speech, but that "[t]here was the need for one additional criteri[on] to be met . . . [to make a] full diagnosis." The other possible criteria, which were not directly observable during the evaluation, included "impulsivity in life, promiscuous behavior in . . . regards to sexual behavior, potential drug use."

         Dr. Rodrigues opined as to each of the criteria that were met. Grandiosity is the tendency to inflate one's self-image in "impractical" ways. As an example, Father told Dr. Rodrigues that he expected to become a paralegal, despite not having graduated from high school. Father's psychological testing also revealed "an elevation on the grandiosity scale." Father displayed pressured speech, which Dr. Rodrigues characterized as "like machine[ gun] fire . . . . speaking at a very high speed," as well as tangential speech, which involves the inability to stay on topic. Dr. Rodrigues noted that on several occasions during the clinical interview, he had to "redirect" Father "back to the item or question I had specifically asked." Finally, Father displayed irritability "towards a great number of people."

         Dr. Rodrigues found Father to be an unreliable reporter. He explained that he uses a two-step process to determine reliability. First, he "look[s] at the information provided in the self-report" to gauge if the responses are "straightforward," "logical," and "possible." Second, if he finds the responses to be unreliable, he considers the "motivation behind them being unreliable." Dr. Rodrigues "found [Father] to be unreliable based on three different elements." First, his psychological testing showed "defensive[ness]." Second, his self-report of his arrest history was inconsistent with the history available to Dr. Rodrigues on the Maryland Judiciary Case Search database. Third, Father told "very convoluted" stories in which he "externaliz[ed] or place[d] blame on people outside of himself."

         Dr. Rodrigues opined that "[l]ack of insight or . . . awareness of your psychiatric illness" is a "common feature" in those with bipolar disorder and Father displayed "limited insight." He told Dr. Rodrigues that he was taking Celexa, an anti-depressant, and Lithium, a drug used to treat bipolar disorder, but believed he would not need to continue taking these medications in the future. This was "particularly concerning" to Dr. Rodrigues. Father also continued to exhibit "symptomology" of bipolar disorder, leading Dr. Rodrigues to question whether Father was consistent with his medication or whether his dose was appropriate.

         In Dr. Rodrigues's view, Father would have difficulty "absorb[ing] any information" if he were manic, because irritability and grandiosity both would be high. Thus, if Father's bipolar disorder was untreated, it could be a "potential barrier" to his ability to "adapt or correct his behaviors."

         After Dr. Rodrigues completed his evaluation of Father, he had the opportunity to review "two to three additional pieces of collateral documents" supplied to him by the Department. First, he reviewed a "functional report" completed by Father while he was incarcerated, in which Father self-reported that in addition to Celexa and Lithium, he also was prescribed Risperdal, an anti-psychotic, and that he feared being "set up, persecute[d], dying, com[ing] back to life." That document led Dr. Rodrigues to amend his diagnosis of Father to bipolar disorder with psychosis, or "a disconnect [with] reality," which was not evident from the clinical evaluation.

         Dr. Rodrigues also had reviewed the sentencing memorandum prepared by the State's Attorney's Office in Father's 2014 criminal case, [7] as well as Father's deposition testimony. Those documents revealed a "much more extensive criminal history" than Father had disclosed during his evaluation. Father had disclosed his recent criminal convictions, for which he had been incarcerated, and a prior weapons possession charge. He did not report his criminal history as an adult and as a juvenile in Ohio and Washington, D.C. That history (and Father's omission of it during the evaluation) led Dr. Rodrigues to consider a "provisional diagnosis" of ASPD, which is a "long enduring personal disposition that shows a disregard for the norms of society as well as the rights and wishes of others." Had Dr. Rodrigues been aware of that history during Father's evaluation, he would have pursued additional lines of questioning.

         Angela M. testified that she had been J.'s foster mom since February 2015. She also was fostering J.'s maternal half-sister and maternal half-brother. When J. entered Angela M.'s care, he was "wounded." He suffered from hydrocephalus, causing his head to be extremely large for his age. He was eleven months old but could not crawl and could "barely hold his bottle." He showed very little emotion. When he cried, he shed tears but made no sound. By age three, however, he was developmentally normal. He was "smart as a whip" and was able to swim. Angela M. testified that she was willing and able to be an adoptive resource for J.

         Ms. Morton-Warren was accepted as an expert in the field of social work, safety, and risk. In April 2016, she was assigned to H.'s and E.'s cases. She had been supervising visits between Father, H., and E. since that time. She observed that Father was inconsistent in his ability to set appropriate limits for the children and engage with them. E. often acted out during visits and, while Father initially would correct him, he (Father) often ignored the inappropriate behavior if E. resumed it. H. often did not want to attend visits with Father. It sometimes took Ms. Morton-Warren forty minutes to convince H. to attend visits, and other times visits with H. were cancelled.

         Ms. Morton-Warren opined that H. and E. "care about their dad[, ]" but that they have a "mix of emotions." They did not seek him out for "security." They are extremely bonded to each other and to their other siblings, however.

         H. and E. both had adjusted well to their foster placement. The home was highly structured, which was healthy for the boys. The foster family was very involved in the children's school and were able to attend meetings whenever the boys had problems. H. and E. were strongly bonded to their foster parents.

         The permanency plan for H. and E. was custody and guardianship. If Father's parental rights were terminated and the foster parents were not willing to be an adoptive resource for H. and E., the Department would conduct recruitment efforts for a permanent placement. The Department could use many additional adoptive resources after termination that were unavailable pre-termination.

         Ms. Morton-Warren opined that the children would not be safe if they were returned to Father's custody because of his serious criminal history and his failure to "come to terms" with his need for services.

         Ms. Hinkle, a licensed graduate social worker, was accepted by the court as an expert in social work. In August 2017, she was assigned to be the child worker for J. (and the two older children not involved in this appeal) and to serve as the parent worker for Father. In the latter capacity, she was supposed to have weekly communication with Father. There were times, however, when she could not reach him by phone or text message. Ms. Hinkle obtained Father's email address to facilitate regular communication. She explained that Father often was not prompt in responding to email communications, despite having advised her that that was his preferred method of contact.

         Ms. Hinkle testified about a June 2017 service agreement between Father and the Department.[8] Father did not return the signed service agreement to the Department for several weeks after it was presented to him. He also made "handwritten additions" to the service agreement. For example, the service agreement required Father to attend substance abuse counseling and anger management classes. Father handwrote on the front page of the service agreement that he did not "have a substance abuse problem or anger control problems." He also wrote "unnecessary" next to the section requiring him to take anger management classes. Next to a section requiring him to participate in parenting classes, he wrote that he already had completed and graduated from a "father's program."

         One requirement of the service agreement was that Father obtain suitable housing. He had been homeless and living in shelters since his release from prison. The Department attempted to assist Father to find housing, but due to his status as a registered sex offender, they were unsuccessful. Father advised the Department that he was saving up money to find housing and that he might be able to move in with his sister but had provided no documentation of those efforts.

         Father also was required to find employment. He told the Department he was doing landscaping jobs, but he had not provided any documentation of employment or any attempts to find employment. His only source of income, as far as Ms. Hinkle knew, was social security disability benefits. He had not provided documentation of that income, however.

         Father was required to meet with his parole officer and follow all her recommendations. Father refused to sign a release to permit Ms. Hinkle to receive copies of his parole officer's records. In email correspondence with Father's parole officer, Ms. Hinkle learned that Father was required to meet with his parole officer once weekly, on Tuesday or, if he missed that meeting, on Thursday. He was not required to submit to urinalysis.

         As part of the service agreement, the Department asked Father to sign releases to permit them to communicate with his various healthcare service providers. Father was unwilling to sign releases to permit the Department to speak to his psychiatrist, Bruce Tanenbaum, M.D.; to RCI, MCTC, and Patuxent officials about mental health services he received while in prison; or, as mentioned, to his parole officer. Ms. Hinkle testified that the releases would have been helpful to the Department in "assessing what's going to be potentially a safe placement for [the children]." She elaborated that it was difficult for her to "make a full assessment to say that the children [would] be safe returning to [Father] if [she didn't] have all th[e] information [about his criminal history and his mental health]."

         The Department referred Father for random urinalysis in August 2017. There were numerous problems with scheduling the testing, however, some caused by Father and some caused by the testing center. When Father's deposition was taken in this case, Ms. Hinkle asked him to go directly for urinalysis testing, which was at a facility across the street from where he was deposed. Despite knowing that he needed to provide urine for testing, Father used the restroom at the deposition location and then was unable to produce urine for testing. On a later date, also after a deposition, Father was able to provide a urine sample. The results showed that he tested positive for amphetamines. Father told Ms. Hinkle he had been prescribed Adderall. Because Father had not signed a release for information from Dr. Tanenbaum, however, the Department could not determine whether this test result reflected prescribed drugs or illicit drug use.[9]

         Father did not comply with the Department's directive that he participate in anger management classes and parenting classes. He had agreed to work with a parenting coach during visits with the children. The parenting coach selected by the Department required Father to meet with her for at least one individual session prior to attending a visitation session, however. Ms. Hinkle gave Father at least two weeks' notice of that individual session, but Father cancelled the appointment on the day of the session because he said he had a landscaping job and a meeting with his attorney that day. The parenting coach had offered to accommodate Father on a weekend day if that worked better for him, but he had yet to reschedule the appointment.

         Father also was not receiving individual therapy, as required by the service agreement. Dr. Tanenbaum had made a referral for Father, but he had not commenced treatment. He also had not provided the Department with any documentation that he was participating in psychiatric medication management, another requirement under the service agreement.

         In her role as J.'s child worker, Ms. Hinkle monitored his placement with Angela M. She opined that J. was "already adjusted" to that placement when she took over his case. That was "his home" and he was always happy to return there after visits with his siblings and Father.

         Ms. Hinkle opined that she did not believe "the . . . children would be able to be safe in [Father's care] . . . for several reasons [including] . . . the extent of his criminal history[, ] [t]he lack of appropriate stable housing, [and] the lack of knowledge of [Father's] mental health and his treatment[.]" She noted that his recent criminal history was very concerning, particularly because it had involved sexual behavior with and in the presence of minors and the giving of drugs to minors. With respect to Father's mental health, Ms. Hinkle opined that the lack of a definitive diagnosis coupled with the lack of information about his medication protocol made it impossible for her to fully assess the children's safety were they to be returned to Father's care.

         Father's unreliable reporting, as detailed by Dr. Rodrigues, also concerned Ms. Hinkle. She explained that the Department could only offer services based upon needs identified by Father and he was not consistent in the information he provided them.

         Ms. Hinkle opined that the children's "emotional safety" in the home with Father was "just as important as the[ir] physical safety." H., for example, had a need for "stability" and "reassurance," and she was uncertain that Father could offer that to him. Moreover, to the extent the children needed services, Ms. Hinkle did not think Father would be consistent in following through with those services, based on his demonstrated inability to maintain his own appointments. She did not believe that giving Father additional time would lead to an adjustment in life circumstances that would permit the children to return to his care. Ms. Hinkle emphasized that while Father had been consistent with visits with the children, there was no evidence that the children's bond with him had increased. They were more "familiar" with Father, but not more attached to him. Their primary attachment remained to their foster parent caregivers.

         Ms. Hinkle opined that termination of Father's parental rights to J. would not negatively affect J., emotionally or otherwise. On the contrary, it would have a positive impact in that J. could achieve permanency in his foster home where he had lived as long as he could remember. J.'s foster mother was "more than ready to move through [with adoption]."

         Mr. Cox, a licensed clinical social worker for the Department of Corrections, testified that he ran a parenting group called "Inside Out Dad" at RCI. The program lasted between 10 to 15 sessions, with 10 to 18 participants. Father had participated in the Inside Out Dad program, attending 10 out of the 15 group sessions. He had "actively participated in all of the sessions that he was present." He frequently was "disruptive" during group sessions, however, because he would "go off on tangents that weren't related to the topic matter." Father sometimes showed "insight" into his own parenting issues during the group sessions, but other times he "seemed to be at odds with the majority of the group." Mr. Cox recalled Father stating that he would encourage his children to challenge authority, particularly schooling and law enforcement authority, at every turn.

         Mr. Cox also had provided release planning to Father. Father identified housing and SSDI as his two most pressing needs upon release. Mr. Cox assisted Father in submitting an online application for SSDI and a "function report." He also looked into housing options for Father, but his options were extremely limited due to his status as a registered sex offender.

         The parties stipulated that Ms. Weinstein, a licensed certified clinical social worker, was an expert in the field of social work. Ms. Weinstein was on medical leave from the Department and was unavailable to testify at the TPR hearing. Her deposition testimony was used in place of live testimony. Ms. Weinstein testified that she was assigned to the children's case as a reunification worker beginning in September 2016 and continuing through the summer of 2017. In her opinion, the children would not be safe if they were returned to Father's care because he had a "lengthy history of violent, inappropriate behaviors" and "mental health" issues. She noted that the Department had "very little information concerning [Father's] mental health[, ]" but that he "demonstrated some very concerning behaviors." His refusal to provide releases made it impossible for the Department to fully "ascertain his diagnoses and his medications." Although she believed that he "loves his children very, very much[, ]" he had repeatedly demonstrated an inability to provide proper care for them and to keep them safe, physically and emotionally.

         Ms. Weinstein explained that Father's criminal history, which involved the recent conviction for fourth-degree sexual offense and a prior conviction for indecent exposure after he masturbated in a locker room in the presence of a staff person, was indicative of his "[in]ability to manage his behavior[, ]" particularly "inappropriate sexual[]" behaviors.

         Ms. Weinstein's observations during Father's supervised visitation with the children also informed her opinion that he could not provide a safe home for them. She recounted that he had "demonstrated a poor understanding of child development [and] a poor understanding of his children." He was "willing to allow" the children to engage in behaviors that were wholly inappropriate and failed to intervene or redirect the children appropriately. While he had been calmer and more pleasant since his release from prison, he had not demonstrated that he had learned how to manage his children's needs.

         Ms. Weinstein had observed H. hiding and shutting down during visits with Father. H. became "more and more agitated" as the visit continued. E. became "confrontational . . . combative . . . and oppositional" during visits with Father. J. did not "have a relationship with . . . [F]ather." He "avoids" Father during visits, moving away when Father attempts to get close to him. In contrast, J. was extremely bonded to his foster mother and to her family members who assisted in caring for him. Ms. Weinstein opined that, if Father's parental rights in J. were terminated, it would not have any negative impact on him. It would have a positive impact in that J. would be able to be adopted by his foster parent, with whom he has a loving and secure attached relationship.

         Father's lack of housing also was a major barrier to reunification. When Ms. Weinstein had spoken to Father about this issue, he had expressed his belief that his post-conviction proceedings would be successful, resulting in his removal from the sex offender registry. He did not have any alternative plans in place should that not come to fruition. Moreover, his only income ...

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