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In re Adoption/Guardianship of C.E.

Court of Appeals of Maryland

June 6, 2019

IN RE: ADOPTION/GUARDIANSHIP OF C.E.

          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.

          OPINION

          GETTY, J.

         Before 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 Maryland Code.

         This 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).

         Now, we 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.[1] 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 opinion.

         BACKGROUND

         C.E. (hereinafter "C.E." or "the child") is a male child born in May 2014 to C.D. (hereinafter "Mother")[2] 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 Pediatric Hospital.

         Immediately 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 Department.

         Ms. 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.[3] Id. C.E. was Mother's sixth child to be adjudged CINA.[4] 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.

         After the home visit and subsequent research, Ms. Noakes held a Family Involvement Meeting ("FIM")[5] 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 weeks.

         The Department filed for emergency shelter care on July 10, 2014, in the Circuit Court for Baltimore City (hereinafter "juvenile court")[6] 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.

         After a 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.

         During 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'[7] 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[8] for anger management counseling.

         The 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 Father.

         After 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.[9] 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).

         On 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.

         The 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.

         Next, 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[10] 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."

         Ms. 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.

         Mr. and 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.

         When asked during each of their examinations whether they wished to adopt C.E., they both answered that they wished to adopt him.

         Laurie 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.

         After 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.

         Next, 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.

         After 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.

         As for her mental health, Mother stated, "I don't have a mental illness, I have PTSD from legal abuse syndrome."[11] 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.

         Father 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.

         Since 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.

         The 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.[12] In order to achieve a resolution to the matter, C.E. waived his cross-examination of the Mother. The hearing concluded that day.

         The Juvenile Court's Findings

         The 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. So found.
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 and maintenance.
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 development delays.
[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.].

         Based 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.

         After 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 ...

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