Argued: June 1, 2018
Reargued: March 1, 2019
Circuit Court for Baltimore City Case No. T16106011
Barbera, C.J. Greene, McDonald, Watts, Hotten, Getty, Adkins,
Sally D. (Senior Judge, Specially Assigned) JJ.
us is a judgment of the Circuit Court for Baltimore City
declining to terminate the legal relationship between a
mother, a father, and their child and ordering the child into
the guardianship and custody of a relative. We are asked to
consider whether allowing this child to remain indefinitely
in the custody of the third party, without terminating the
parental rights of the father or of the mother, constitutes a
proper exercise of judicial discretion when evidence was
presented at the termination of parental rights hearing that
neither parent possesses the ability to ever safely care for
the child. In reviewing this issue, we continue to follow
this Court's precedent of more than a decade and affirm
that the pursuit of the best interest of the child remains
the overarching goal when considering the termination of
parental rights ("TPR") pursuant to § 5-323 of
the Family Law Article (hereinafter "FL") of the
Court first completed a comprehensive review of TPR
proceedings in 2007, in In re Adoption/Guardianship of
Rashawn H., 402 Md. 477 (2007). Three years later, this
Court, in In re Adoption/Guardianship of Ta'Niya
C., 417 Md. 90 (2010), reexamined TPR proceedings and
confirmed the child's best interest remains the
prevailing standard as outlined in Rashawn H.
Following Rashawn H. and Ta'Niya C.,
this Court specifically reviewed the unfitness prong of FL
§5-323, in In re Adoption/Guardianship of Amber
R., 417 Md. 701 (2011) and the exceptional circumstances
prong of FL § 5-323, in In re Adoption/Guardianship
of H.W., 460 Md. 201 (2018).
seek to further clarify the circumstances under which a
juvenile court must find that termination of parental rights
is the proper recourse under either the unfitness prong or
the exceptional circumstances prong of FL §
5-323. We hold that in order to achieve the best
interest of the child and to provide sufficient permanency
for the child, it was an abuse of discretion for a juvenile
court to decline to terminate the parental rights of the
Father when a juvenile court finds that Father can never
safely care for the child. Sufficient permanency for the
child is not achieved when the child remains indefinitely in
the guardianship and custody of a relative. Furthermore, we
hold the juvenile court abused its discretion when it failed
to recognize an exceptional circumstance justifying the
termination of the parents' parental rights. Finally, it
was an error of law for the juvenile court to change a child
in need of assistance (hereinafter "CINA")
permanency plan during a termination of parental rights
hearing conducted pursuant to FL § 5-323 without issuing
two separate orders pursuant to FL § 5-324. Accordingly,
we shall vacate the judgment of the juvenile court and remand
this matter for further proceedings consistent with this
(hereinafter "C.E." or "the child") is a
male child born in May 2014 to C.D. (hereinafter
"Mother") and H.E. (hereinafter "Father").
C.E. was born two months premature and after birth was placed
in the Neonatal Intensive Care Unit of Johns Hopkins
Hospital. In time, he was transferred to the Mount Washington
after C.E.'s birth, a Baltimore City Department of Social
Services (hereinafter "the Department") caseworker,
Nia Noakes, responded to a "risk of harm" report
and a request for a safety assessment of a newborn by Johns
Hopkins Hospital. As a part of the safety assessment, Ms.
Noakes examined Mother's home with both parents present.
Ms. Noakes also consulted the Department's records to
determine whether the family had a history with the
Noakes discovered that the Department had removed
Mother's other five children from her care over the past
two decades. See In re C.E., 456 Md. 209, 211
(2017). Mother first interacted with the Department in
1996. Id. C.E. was Mother's sixth
child to be adjudged CINA. Id. Mother has a
well-documented history of mental illness causing her to lash
out against her children. Id. Her "previous
mental health diagnoses include paranoia, adjustment
disorder, major depression, somatization disorder, borderline
personality disorder, mania, and bipolar affective
disorder." Id. Mother has also demonstrated
"fits of rage." Id. On numerous occasions,
"juvenile courts repeatedly have found that [Mother]
displayed a complete inability to care for her children,
control her emotions, or effectively communicate with her
children and the Department." Id. at 212.
the home visit and subsequent research, Ms. Noakes held a
Family Involvement Meeting ("FIM") to determine
whether C.E. could be safely placed with either Mother or
Father. Concerned with Mother's previous interactions
with the Department, Ms. Noakes determined that C.E. would
not be safe in her care. The Department also learned that
Father could not care for C.E. because Father resided in a
senior housing complex that did not allow children to reside
at the property except for a short-term duration of two
Department filed for emergency shelter care on July 10, 2014,
in the Circuit Court for Baltimore City (hereinafter
"juvenile court") while C.E. was still at Mount
Washington Pediatric Hospital. In late June or early July
2014, Mother telephoned her cousin, Ms. B., and advised that
she could not take C.E. home from the hospital and asked for
permission to provide Ms. B.'s 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 had only reconnected when Mother found
Ms. B. on Facebook. Ms. B. and her husband, Mr. B. consented.
The Department reached out to Ms. B. and Mr. B. to conduct a
background check and begin the placement process.
hearing in July 2014, the juvenile court granted the
Department's request for temporary care and custody of
C.E. By July 15, 2014, Mr. and Ms. B. had successfully
completed the necessary department requirements. Upon
C.E.'s hospital discharge on July 21, 2014, the
Department placed C.E. with them where he has remained
throughout his entire life.
the summer of 2014, the Department facilitated the second FIM
for both parents. 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. The Department also referred Father to
the Center for Urban Families' parenting classes which
occurred twice a week for three months. Father initially did
not attend the classes but he eventually completed the weekly
ten-week course on positive parenting skills. Father was also
referred to Hebron House for anger management counseling.
Department continued to provide other services to the parents
to achieve reunification with C.E. The Department facilitated
regular supervised visits between C.E., Mother, and Father.
The visits were scheduled weekly during 2014 and bi-weekly
from 2015 to 2017. Initially the visits occurred supervised
at the Mother's home for three months. However, the
Department decided to move the visits to Department
facilities due to environmental concerns. The Department
provided the supervision during the visitation period and
both parents attended most of the scheduled visits. These
visits were occasionally marked with C.E.'s angry
outbursts towards his Mother. On other occasions, the visits
were characterized as generally positive interactions with
multiple postponements, the juvenile court found C.E. to be a
child in need of assistance on June 16, 2015 and awarded
custody to the Department for continued placement with his
relatives, Mr. and Ms. B. Additionally, the supervised
visitation was continued and Father was ordered to submit to
a clinical evaluation by Court Medical
Services. Mother appealed the juvenile court's
findings to the Court of Special Appeals which affirmed the
judgment of the juvenile court. See In re C.E., No.
0925, Sept. Term, 2015, 2015 WL 9183397 (Md. Ct. of Sp. App.,
Dec. 15, 2015) ("The juvenile court's findings were
supported by the evidence presented and the court's CINA
determination was supported by the law. Accordingly, we hold
that the trial court did not err nor abuse its discretion
when it found C.E. to be CINA and committed him to the
custody of the Department."), cert. denied, 446
Md. 705 (2016).
April 20, 2016, the juvenile court granted the
Department's motion to waive its obligation to continue
to make reasonable efforts to reunify Mother with C.E.
pursuant to § 3-812(d) of the Courts & Judicial
Proceedings Article (hereinafter "CJP") of the
Maryland Code. 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 (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.
termination of parents rights hearing took place in 2017 on
the following dates: March 20, March 21, April 27, May 2,
June 27, and July 5. First, Ms. Noakes testified as a family
services case worker with the Department. She testified to
her interactions with both parents immediately after C.E. was
born and while the Department was determining whether to
petition for shelter care and guardianship.
Brenda Harriel, Coordinator of Medical Services for the
Juvenile Section, testified as an expert witness in clinical
and forensic social work, with specialties in diagnosis and
treatment of individuals with DSM-V mental health diagnosis
and parenting skills assessments. She evaluated Father in
July of 2015. In reaching her conclusion, she relied on her
meeting with Father, court documents, and the
Department's family social history report. Father refused
to consent to the release any of his medical records. She
determined that Father presented with schizotypal personality
disorder which features "cognitive or perceptual
distortions . . . odd beliefs, peculiar behaviors,
inappropriate or constrictive affect, and reduced capacity
for close relations." She recommended no treatment for
his personality disorder. Ms. Harriel opined that Father
would not be able to "provide proper care in a
consistent, protective, and nurturing way."
Harriel also testified to her evaluation of Mother in 2010.
That evaluation was conducted during proceedings for one of
Mother's other children, J.D. During that evaluation,
Mother refused to answer questions, claiming her rights were
being violated. From her behavior that day, Ms. Harriel
observed symptoms of mania. However, Ms. Harriel conceded
that she had not evaluated Mother since 2010.
Ms. B. testified next. They explained that C.E. is epileptic
and continues to receive medication for his epilepsy as
prescribed by a neurologist. C.E. also exhibits delays in
physical growth and has problems with communication,
executive function, and attention deficit. He has been
characterized as very active, impulsive, quick to
frustration, and aggressive. They stated that at the time of
the hearing, he was undergoing a formal diagnostic process at
Johns Hopkins Bayview Medical Center to determine whether he
is on the autism spectrum. Ms. B. acknowledged C.E.'s
challenges, but was satisfied with the progress he had made
in their home. She testified:
C[E.]'s a good boy . . . He get up, and eat, and do what
he do. He likes to be in his room. His room is like his
little castle. He likes cartoons. He likes playing the cool
stuff. He plays the guitar . . . He likes to play. He likes
to run and jump. [C.E.]'s [sic] very active.
asked during each of their examinations whether they wished
to adopt C.E., they both answered that they wished to adopt
Higginbotham, the Clinical Social Worker Supervisor with the
Department also testified and was accepted as an expert. Ms.
Higginbotham was asked to observe a visit and to give some
suggestions to Father and Mother to improve visitation with
C.E. After observing Father with C.E. during several visits,
Ms. Higginbotham opined that Father sometimes interacted
appropriately with C.E. but that caring for C.E. consistently
would likely be too stressful for Father. She noted that in
her opinion, the Father would have difficulty sustaining
enough energy for C.E. Overall, she concluded that C.E.
requires focus and attention that Mother and Father cannot
provide for their child.
Ms. Higginbotham, Ms. Mary Ann Ervin, a Supervisor for the
Department, testified. Ms. Ervin was familiar with Mother due
to Mother's previous interactions with the Department.
Ms. Ervin explained some of the Department's efforts
toward attempting reunification between the parents and C.E.
Further, a variety of documents detailing the parents'
interactions with the Department were admitted into evidence.
Nkeiruka Udom, the assigned caseworker testified. She was
assigned to the case in 2017 after taking over for another
caseworker. Ms. Udom testified to some of the visits she
witnessed between C.E. and his parents.
the conclusion of Ms. Udom's testimony, Mother was called
as a witness. Prior to the start of the hearing, the juvenile
court had granted Mother's request to have an
accommodation and participate in the hearing through the
telephone. For her testimony, the juvenile court required
Mother to appear by video conference so that the parties and
the juvenile court had the benefit of her demeanor during the
examination. Through video conference, Mother explained her
visitations with C.E. and her interactions with the
Department. She believes the Department "took" C.E.
only because of her prior interactions with the Department.
Mother also testified that she maintains her own residence
but spends a substantial amount of time with Father at his
residence. She stated Father and Mother were looking to move
to Delaware together. Mother also testified that she does not
have a good relationship with Mr. and Ms. B.
her mental health, Mother stated, "I don't have a
mental illness, I have PTSD from legal abuse
syndrome." Mother commented that she was testifying
in this matter against her health. After Mother's first
day of testimony, the Court characterized her responses
during cross-examination as "long,"
"distorted," "nonresponsive" narratives
to the questions asked. When cross-examination was to resume
five days later, Mother did not appear. Within those five
days, Mother had been hospitalized and discharged for anxiety
and chest-pains. The juvenile court excused Mother from
testifying that day and sought to reschedule Mother's
testimony when her health permitted. Mother waived her
appearance for the day.
testified after Mother was excused. Father and Mother began
their relationship in 2010 and remain together. Father was
educated through the ninth grade and is employed full-time as
a dishwasher. He receives Supplementary Security Income for a
disability. C.E. is Father's second-born son.
Father's first child, who is now an adult, entered the
foster care system during minority and was raised by
Father's sister. Father acknowledges he did not
participate in the raising of his first son.
C.E.'s birth and through the termination of parental
rights hearing, Father has resided in senior citizen housing.
His housing prohibits children from residing at the residence
for longer than two weeks. When asked whether he planned to
live with Mother if C.E. was returned to him, Father
responded "I would have to." He testified further
that if C.E. was returned, he would exclusively rely on
Mother to care for C.E. while he was at work. Father does not
believe Mother has any mental illnesses and he is adamant
that he will not separate C.E. from Mother. Father admitted
past domestic violence with Mother, but testified that he had
addressed that issue by attending classes at the Center for
Urban Families. As Mother did during her direct examination,
Father testified to his sincere desire to reunite with C.E.
hearing resumed to permit C.E. to conduct cross-examination
of Mother. Mother indicated she was not able to continue
testifying and gave a narrative statement on the record
without being sworn and without anyone's ability to
cross-examine Mother. In order to achieve a resolution to
the matter, C.E. waived his cross-examination of the Mother.
The hearing concluded that day.
Juvenile Court's Findings
juvenile court denied the Department's Petition for
Guardianship with the Right to Consent to Adoption or
Long-Term Care Short of Adoption. The Court found that there
was clear and convincing evidence that Mother was unfit but
that there was only a preponderance of the evidence that
Father was unfit. Because it denied the petition for
guardianship, the juvenile court did not terminate either
Mother's or Father's parental rights. Specifically,
the juvenile court wrote, in part, in its opinion:
[T]he Court concludes that there is not clear and convincing
evidence that it is in [C.E.'s] best interest to
terminate his parents' parental rights; nor is there
clear and convincing evidence that it would be contrary to
[C.E.'s] welfare to continue his parents' parental
rights, diminished by a changed permanency plan of custody
and guardianship to cousin [Ms. B.] and [Mr. B] without
termination of parental rights. The Court finds in denying
the TPR at this time and simultaneously changing [C.E.'s]
permanency plan to [custody and guardianship] without
termination of parental rights is in [C.E.'s] best
interest and welfare.
The findings below show by a preponderance of the evidence
that there is no likelihood [of] reunification of [C.E.] with
Mother and/or Father can be achieved in the foreseeable
future, in eighteen months, or indeed, ever.
While adoption remains the gold standard of permanency where
reunification is not safely possible, in this case the very
strong commitment of [Mother]'s relatives, [Mr. and Ms.
B.], 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.
Father's [sic] more likely than not unfitness to parent
[C.E.] results from his lack of housing where [C.E.] can live
in small part . Father's mental health evaluation 
opines a diagnosis of Schizotypal Personality Disorder.
However, that diagnosis is not convincing in the fact of the
consistently reported good parenting time/visitation Father
has shared with [C.E.] Furthermore, the limited factual and
analytical basis in this record for that diagnosis  causes
the Court to give little weight to the mental health
assessment, on which [the Department] and [C.E.]'s
counsel make no comment in argument. However, Father's
[sic] found more than likely unfitness rests in great degree
upon his admitted nearly total reliance on Mother to parent
[C.E.] when he is unavailable during extensive working hours.
While the provision of daycare to assist Mother is
theoretically a safe plan for reunification, it is patently
clear on this record that Mother's mental health would
not allow her to accept this support necessary for
[C.E.'s] safety in Mother's care. Repeatedly, Mother
decomposes into stress induced rage behaviors whenever a
third party challenges the smallest aspect of her parenting
conduct; [C.E.] can not and should not be subjected to this
well established pattern of psychological abuse by Mother.
While neither parent individually or together is able to care
for [C.E.] the Court is convinced that [C.E.] knows his
parents and displays a sufficient connection with
them-particularly with Father-to raise safety concerns for
the termination of that relationship which has not been
overcome by any clear and convincing evidence otherwise.
Both the unfitness found for [C.E.]'s parents (by clear
and convincing evidence for Mother; merely a preponderance of
the evidence for Father) and the exceptional circumstances
found support the change of permanency plan to custody and
guardianship without termination of parental rights.
[I]n the three years [C.E.'s] CINA case and more recently
this TPR case have been pending, parents have achieved very
little to prepare a safe placement for [C.E.] in their care.
The entire record does support, by clear and convincing
evidence, a finding that there is no likelihood those
circumstances will change in the foreseeable future or ever.
Unfortunately, notwithstanding [the Department's] efforts
and Father's relative compliance with service agreement
requirements, Father's senior housing that excludes
[C.E.] from living there has not changed, and has no likely
prospect of changing. [C.E.] is not permitted by applicable
regulations to be legally resident [sic] in Father's
apartment, by clear and convincing evidence, indeed
undisputed evidence, on that issue. Father is not shown by
clear and convincing evidence to be an unfit parent on this
record-but the Court does find it more likely than not Father
is unable-unfit to parent [C.E.] Additionally, the
Exceptional Circumstances of his lacking housing and
Father's clear dependence on Mother for daycare while he
is employed, coupled with the additional Exceptional
Circumstances found below, convince this Court that it is in
C.E.'s best interest for the permanency plan to be
changed to custody and guardianship to [Mr. and Ms. B.]
without termination of parental rights.
Neither parent has contributed support for [C.E.'s] care
Neither parent has displayed in visitation essential safe
parenting skills- including but not limited to mirroring,
patience, and affirmation-that are needed by [C.E.]
particularly in response to his now presenting possible
autism spectrum behaviors, seizure disorder, and speech
[Mr. and Ms. B.] provide [C.E.] safe stability in their care;
in sharp contrast Mother's erratic, angry, raging
behaviors and stress dysregulation, and Father's absence
(employment schedule) would be a profoundly unstable
emotional environment for [C.E.].
on these findings, the juvenile court determined that it was
in C.E.'s best interest to place C.E. in a guardianship
with his extended family without terminating the parental
rights of either parent.
noting timely appeals to the Court of Special Appeals, C.E.
and the Department filed separate petitions for writ of
certiorari, which this Court granted on February 5, 2018.
Together, C.E. and the Department 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 [FL] § 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 ...