In Re Adoption/Guardianship of J.T. , 242 Md. App. 43 ( 2019 )

In re: Adoption/Guardianship of J.T., Nos. 2811 & 3098, September Term, 2018, Opinion
by Adkins, J.
FAMILY LAW – TERMINATION OF PARENTAL RIGHTS – BEST INTERESTS
OF THE CHILD – WITHDRAWAL OF FOSTER FAMILY: The juvenile court knew
about the withdrawal of the child’s foster family before it released the decision to terminate
parental rights of the mother. When a court’s assessment of a child’s best interests was
affected by consideration of the apparent stability and safety a former foster family
provided, it errs in failing to fully discover and address how the withdrawal of the foster
family might affect the child emotionally or a new placement. These considerations are
especially crucial when the child’s only remaining permanent attachments are her
biological mother and father.
FAMILY LAW – TERMINATION OF PARENTAL RIGHTS – FAMILY LAW
ARTICLE § 5-323 – PARENT’S MENTAL ILLNESS: The juvenile court abuses its
discretion when it terminates a mother’s parental rights without taking into consideration
her marked improvement through medicine and therapy. This consideration is especially
important where the mother acknowledges that she suffers from mental illness, there is no
history of abuse or neglect of the child, and the mother’s poverty substantially contributes
to her inability to maintain a home for the child. The court’s inquiry should have
considered the mother’s progress in her therapeutic and medical regimen in deciding
whether her constitutional rights were impaired by the proposed termination order.
Circuit Court for Montgomery County
Petition No. 06-Z-17-33
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
Nos. 2811 & 3098
September Term, 2018
______________________________________
CONSOLIDATED CASES
______________________________________
IN RE: ADOPTION/GUARDIANSHIP OF J.T.
______________________________________
Kehoe,
Leahy,
Adkins, Sally D.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Adkins, Sally D., J.
____________________________________
Filed: July 31, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-07-31 15:40-04:00
Suzanne C. Johnson, Clerk
Although mental illness may play a role in many termination of parental rights
cases, it is uncommon in an appellate court that the illness presents itself as the centerpiece
issue—without the concomitant issues of child abuse or abandonment. In this case, we are
called upon to address a parent’s mental illness, the best interests of a child, and a mother’s
ability to parent given her progress made through therapy and medication. These issues
are all the more essential and poignant given the foster parents’ sudden withdrawal from
adoption plans.
FACTUAL OVERVIEW AND PROCEDURAL POSTURE
Legal Proceedings
Appellant T.N. (“Mother” or “T.N.”) gave birth to J.T., a healthy daughter, on April
1, 2016. On May 26, 2016, after petition by the Department of Social Services for
Montgomery County, Maryland (“the Department” or “DSS”), J.T. was determined by the
juvenile court to be a child in need of assistance (“CINA”) and committed to the care and
custody of the Department. DSS alleged that Mother was unfit to parent J.T. It also
asserted that the parental rights of J.M., the child’s father (“Father”), should be terminated
due to exceptional circumstances. In August 2018, following the CINA proceedings, a
termination of parental rights (“TPR”) trial was held (Case No. 2811). The Circuit Court
for Montgomery County terminated Mother’s and Father’s parental rights pursuant to its
November 2018 Order. Both Mother and Father appeal from this Order. In a parallel
proceeding, the juvenile court ordered that Mother’s visitation with J.T. be reduced.
Mother appealed the change in the visitation schedule to this Court (Case No. 3098), and
the two appeals have been consolidated, without objection.
Questions Presented by Mother
1. Did the juvenile court err in terminating Appellant T.N.’s parental rights
to J.T.?
2. Did the juvenile court err in reducing visitation?
3. Did the juvenile court err in terminating Appellant J.M.’s parental rights
to J.T.?
As to the first and third questions, we hold that the juvenile court erred in terminating the
rights of Mother and Father, and we reverse and remand to the juvenile court for further
proceedings. Because we remand to the juvenile court to reconsider the parental rights of
both Mother and Father, and J.T.’s best interests, we also direct that Mother’s visitation
schedule return to two times per week, the frequency Mother earlier enjoyed before it was
reduced at the request of DSS (to correlate with the expected termination).
In this appeal we focus on the arguments made by Mother and the Department’s
response thereto. Father, who lives in Cameroon, also contests termination of his parental
rights. He challenges the juvenile court’s exercise of personal jurisdiction over him and
argues, inter alia, that exceptional circumstances were not shown, and the court should not
have drawn a negative inference from his failure to testify. Throughout most of this
process, Father has supported Mother’s right to the care and custody of J.T., with the
understanding that Mother and child would live in the United States. While he, at one
point—fearing Mother’s parental rights would be terminated—asserted his own right to
custody of J.T. in Cameroon, Father’s final word, expressed by counsel at oral argument,
was that he preferred that Mother retain her parental rights and eventually be given custody
of J.T. Because of Father’s deferral to Mother and her parental rights, and because
2
ultimately, we reverse the juvenile court and ask that court to reconsider the determination
of both parents’ rights, we do not address Father’s arguments on his own behalf. On
remand, however, Father is still free to protect his own parental rights, or to argue on behalf
of Mother.
Facts1 and Procedures
In April 2016, shortly after Mother gave birth to J.T., Mother experienced a mental
health crisis while still in the hospital and showed signs of postpartum psychosis. Hospital
staff removed J.T. from Mother’s care, and Mother was transferred to a psychiatric unit.
J.T. was placed in kinship care with a licensed foster parent who was a friend of Mother’s.
Father has been unable to secure a U.S. visa to travel to this country. While both parents
resided in Cameroon, they agreed that Mother, a college graduate who had a Green Card
allowing her to work and live in the United States, would travel to this county so that J.T.
would be born here. In September 2016, Father sent an email to the Department saying
that he wanted J.T. reunified with Mother.
Mother’s bout with postpartum psychosis was not the first time she had suffered
serious mental health problems. She was hospitalized in 2013 and 2015 and attempted
suicide in 2014. According to a psychological evaluation, Mother suffers from post-
traumatic stress disorder and recurrent major depressive disorder with psychotic features.
During depressive episodes, Mother experiences insomnia, psychomotor agitation, fatigue,
and mood instability. During these episodes she sometimes has auditory hallucinations,
1
We draw the facts from testimony at trial and the Department of Social Services
(“the Department” or “DSS”) reports that were entered into evidence.
3
wherein she hears voices telling her she is going to die. Major stressors in her life may
trigger a depressive episode. At one low point in May 2016, Mother is reported to have
stated that “the voices have taken over her body and she is concerned ‘that they might hurt
me.’”
According to social workers and psychologists who have dealt with Mother, she can
successfully manage her illness with therapy and medication. They also cautioned that her
symptoms will return if medication is interrupted. The psychologist who evaluated Mother
in June and July of 2016 recommended that she receive “case management support to assist
her in accessing resources, including but not limited to,” subsidized and transitional
housing, where her daughter could reside with her. During the months leading up to the
TPR hearing, Mother lived in a transitional housing facility operated by Catholic Charities,
known as “Dorothy Day.” Mother stayed in regular contact with the Department, and
regularly attended scheduled visits with J.T.
Mother’s social worker at Dorothy Day has described her as “extremely reliable”
and said that “[she hadn’t] had any problems with [her] in her reliability and her punctuality
and her completing tasks . . . and her communication . . . .” Her first DSS social worker,
Jillian Kelly (“Kelly”), testified that “[w]hen [Mother] is on the right medication and being
properly monitored she can do well.” Her second DSS social worker, Marwan Castellani
(“Castellani”), testified that she was “very cooperative” with the Department, reliably
participated in visits, and had positive interactions with J.T. Castellani concurred that, with
housing and mental health support, including therapy and medication, Mother functioned
well in the community. The psychologist who conducted Mother’s mental health
4
evaluation testified that she was “completely cooperative” and “insightful” about her
mental health issues.
The Department facilitated Mother’s visits with J.T. while J.T. was in foster care.
When healthy, Mother had positive, affectionate visits with J.T. They grew an increasingly
strong bond, but they would need to reestablish their bond after periods when Mother was
hospitalized and visits were put on hold. Visits changed from supervised to unsupervised
in September 2016 and occurred once each week for one hour. The psychologist who
evaluated Mother testified that her “face lit up” when talking about J.T., and she was “eager
to share photos.” Mother “expressed a realistic understanding of what caring for a baby
full time entails” and was “cognizant of the responsibilities inherent in that.”
Periodic review hearings are required for all CINA children. See Md. Code Ann.
(2005, 2012 Repl. Vol.), § 5-326 of the Family Law Article (“FL”). The Department
prepares reports for the juvenile court shortly before every review hearing, and these
reports are admitted into evidence at the merits hearing. At the September 14, 2016 review
hearing, the Department reported that Mother had “shown significant progress in
maintaining her mental health and working toward reunification with her daughter. She
had attended every visit with [J.T.] and consistently demonstrates skills learned from
parenting education.” It also expressed that mother and daughter were developing a strong
bond, and that the Department wished for Mother to be able to spend more time with J.T.,
progressing to overnight visits. It reported that Mother had not needed hospitalization since
May 2, 2016 and had not reported any psychotic symptoms to the Department or her
therapist.
5
Around December 2016, Mother became pregnant again and this appeared to affect
her mental health adversely. Kelly, Mother’s initial DSS social worker, filed a February
22, 2017 report stating that Mother told her that she had been advised to discontinue all
medications due to her pregnancy. Kelly estimated that she had stopped taking her
medication in November or December 2016, around the time Mother suffered a panic
attack that resulted in her hospitalization.
While Mother was residing with a friend in Southeast Washington, District of
Columbia, the Department arranged for J.T. to stay with Mother for a few days over
Christmas. Arrangements were made for the Department to pick J.T. up on December 27,
2016 and take J.T. back to her foster home. Mother was to meet the Department
representative in Silver Spring, Maryland to facilitate this. But, on that day, Mother called
the Department and asked for J.T. to be picked up at the apartment, as Mother was not
feeling well and did not want to travel to Silver Spring. When the social worker picked up
J.T., Mother was acting oddly, with symptoms of a panic attack. Two days later, on
December 29, 2016, police observed Mother screaming and dancing in the road. An officer
found a DSS business card in Mother’s purse and called the Department.
Mother was taken to the emergency room and was stabilized and released after a
48-hour stay. She then went to Progress Place, a shelter in Silver Spring, seeking a place
to stay. While there, she became upset at having to sleep in the same room with other
women, was loud, aggressive, and argued with staff members and even attempted to spit
on a staff member. Police were called, and she was banned from Progress Place for a year.
6
During early January 2017, Mother was brought to Washington Adventist Hospital
by police and admitted. After her admission, hospital staff described her as being agitated
and fixated on her scheduled visit with J.T. Mother repeatedly called the Department
asking that a social worker either pick her up from the hospital or bring J.T. to her. Her
hospital-assigned counselor said that Mother was refusing to take medication.2 Mother
remained at Washington Adventist Hospital until January 13, 2017, gradually responding
to treatment.3 She was released, after taking her medication, with a diagnosis of Bipolar I
with psychotic features. Because the Montgomery County Crisis Center did not have any
open shelter beds, social workers arranged for her to go to Harriet Tubman Emergency
Women’s Shelter, but the security guard refused her entry, despite her begging to be
admitted. She then was admitted to the psychiatric unit of Howard University Hospital,
where she remained from January 17–24, 2017.
At about this time, Mother met with the Department and reported that she had
stopped taking her Seroquel, a prescribed medication, as it was making her sleepy and she
did not want to be tired or inattentive when caring for J.T. during her extended,
unsupervised, and overnight visits. She also told the Department that she felt overwhelmed
with her overall situation. She identified the father of her unborn (second) child and
explained that when she informed him of the pregnancy, he denied being the father. This
2
As discussed, Mother was pregnant with her second child at this time and was
advised not to take any medication.
3
Mother initially exhibited paranoia about the staff and other residents, such as
accusing residents of trying to kill her.
7
was greatly upsetting to her, she explained, because he had promised to marry her and take
care of her and the child.
Mother also informed the Department that she found a different shelter, Winter
Haven Emergency Shelter in Silver Spring, and she intended to resume her job as a home
health aide, while continuing to see her therapist and psychiatrist. The social worker
observed Mother to be more sluggish than usual around this time, which Mother owed to
her pregnancy. During this same period, Mother had supervised visitation with J.T. on
January 25, February 1, and February 8, 2017.
Another depressive episode occurred around mid-February 2017. The Director of
the Winter Haven Emergency Shelter, Dr. Donna Robinson, stated that she became
concerned because Mother appeared depressed and anxious, and exhibited involuntary
motions causing her to hit herself. The Director transported Mother to Holy Cross
Hospital, but when Robinson tried to visit with her two days later, she was informed that
Mother was not in the hospital. The Department learned that on February 11, 2017, Mother
was transferred to Brook Lane, a mental health hospital. At this point, the permanency
plan for J.T. was reunification with her mother, and the Department, noting that Mother’s
decompensation was very recent, did not ask to change the plan. Still, DSS planned to
return to juvenile court in three months to possibly revise the permanency plan to “adoption
by a relative or a non-relative.”
The Department also advised the court, in its above-discussed report for the March
3, 2017 Permanency Plan Hearing, that it was
8
important to note that [J.T.] [had] been with the same foster
family since May 26, 2016 and is attached to them. Given the
significance of attachment and bonding during infancy, the
Department and Court also need to consider [J.T.’s] attachment
to her foster parents in considering a permanent resource for
her.
Castellani, her second DSS social worker, formally assigned to J.T.’s case on April 28,
2018, also testified about the strength of her bond with her foster family. He opined that it
was contrary to J.T.’s best interest to be removed from foster placement for any reason,
including to be placed with a biological parent. Castellani also said that, during the most
recent two visits, J.T. did not cry upon leaving her foster parents to visit Mother.
Our next snapshot of Mother is derived from the August 18, 2017 report by the
Department to the juvenile court. After a week at Brook Lane, Mother was still exhibiting
symptoms of anxiety and depression, and her pregnancy limited the medications she was
able to take. In March 2017, Mother received electroconvulsive therapy at University of
Maryland Medical Center and was discharged on March 23, 2017. Her physician reported
that, on discharge, Mother denied any auditory hallucinations or other psychotic symptoms,
that she had improved mood and wider affective range, and was more responsive, including
laughing and smiling. She had also “resolv[ed]” her suicidal ideations. She still, however,
remained anxious and spoke very little.
Mother then went to live in an assisted living facility in a residential rowhouse in
Baltimore, where she received medication, monitoring, and assistance with meals, laundry,
and other basic personal needs, by on-site staff. This residential program was operated by
Chesapeake Connections, a mental health services provider. Her case manager at this
9
program reported that Mother was working “on strengthening her independent skills by
encouraging and allowing her to complete medical appointments on her own, regularly
taking public transportation on her own and shopping on her own.” The psychiatric nurse
practitioner reported that Mother was “in compliance with treatment and ‘appears to be
doing well psychiatrically and mentally’” and “her prognosis appears to be fairly good if
she continues to comply with medications, participate in psychotherapy and receive
supportive services.” While she lived in this residential facility, Mother had visits with her
daughter, and, after an initial period of uneasiness, J.T. settled down and visits became
better, with mother and daughter engaging in reciprocal play, reading stories, and changing
the child’s diaper.
In this same August 18, 2017 report, the Department stated that J.T. was doing well,
and that Mother “is able to sustain brief periods of stability when she is taking her
medication as prescribed, [but] any deviation from her medical regimen or exposure to
stressors has shown to lead to a reoccurrence of her psychiatric symptoms.” The
Department expressed concern about the proposed plan by Chesapeake Connections to
transfer Mother to a less restrictive environment when she gives birth, as she “currently is
not demonstrating independent living skills in her current residence.” DSS acknowledged
that “[J.T.] does exhibit a connection to her mother” and they “engage in play and are
affectionate with each other,” but maintained that J.T. “cannot be safe in her care.” The
Department emphasized that J.T.’s “strongest attachment is to her foster parents,” along
with “the potential emotional, developmental, and educational harm to the child if moved
from the current placement . . . .”
10
After this hearing, the juvenile court changed the permanency plan from
“Reunification” to “Adoption by a Non-Relative.” The court found that “[J.T.’s]
mother . . . still struggle[d] with her mental health and stability. She [currently lived] in a
treatment facility and [was] still unable to care for [J.T.]” The court also found she had
“made minimal progress toward alleviating or mitigating the causes necessitating the
commitment. While there was some progress, that has been followed by multiple
additional hospitalizations.” It also noted that J.T. was “safe in meeting her developmental
milestones in her foster care placement.”
In its January 22, 2018 report to the juvenile court, the Department stated that
Mother’s second daughter (“G.N.”) was born on September 3, 2017. Mother and G.N.
were moved into an apartment managed by a mental health care organization, Uplift
Individuals in Christ. But, it explained, two weeks later, Mother was admitted to Johns
Hopkins University Hospital on an emergency basis. In this report, the Department
recommended that J.T. remain in foster care, with a permanency plan of adoption by a non-
relative. DSS maintained that J.T. was in a loving and stable foster home and the foster
parents were committed to adopting her.
Another review hearing was set for June 6, 2018. The Department’s May 25 report
for this hearing described the favorable conditions with J.T.’s foster family and
characterized J.T. as a two-year-old toddler who is happy, well-adjusted and meeting
developmental milestones. DSS reported that the foster family had embraced J.T. into their
family and integrated her into their lives, including extended family, and that “the family
is strongly committed.”
11
As to Mother, the Department had become pessimistic about her ability to parent.
It reported that Mother’s
history with Child Welfare Services has demonstrated
concerning behaviors related to her anxiety and hallucinations
resulting in an inability to meet the needs of her daughter [J.T.],
now two years old, as well as her daughter [G.N.], now 8
months old.
During this reporting period [Mother] has been able to
maintain her stability by attending regular therapy and
medication management. There have been no psychiatric
hospitalizations.
At the time of this report, Mother lived at Dorothy Day Transitional Housing Program
through Catholic Charities in Rockville, Maryland. Despite its pessimistic view, the
Department recounted a positive report from a social worker, saying that
[Mother] is motivated to better herself, is currently medication
compliant and will be working with DORS to explore
obtaining part-time work. The worker further noted that
[Mother] would like to eventually be able to leave the “shelter
system” and get her own apartment; the current program allows
[Mother] to remain there for up to one year.[4]
The Department acknowledged that “[Mother] was relatively consistent with her
weekly visitation schedule” but sprinkled its report with small negative notes about Mother.
4
This quote is from Castellani, a DSS social worker. He took over when Kelly left
the Department in March 2018. He testified that Mother had been cooperative and
continued to have physical, in-person visits with J.T. He observed that she had been
mentally stable; he did not have any concerns about leaving mother unsupervised with her
child for short periods of time (e.g., to change a diaper, etc.), and increased Mother’s visit
with child to two hours in length. Castellani testified that J.T. had deepened her bond with
Mother and kissed and cuddled her during visits. He also testified that Mother is
cooperative and regularly visits with J.T., and that she continues to attend therapy, seek
independent living arrangements, and attempts to obtain employment.
12
For example, it noted that two-year old J.T. was distressed whenever the Department staff
picked her up from her foster home to go anywhere, including to Mother’s. Also, the
Department reported that although Mother was very affectionate with J.T. during their
visits, J.T. “appeared to tolerate her mother’s affections” and usually played independently
from her mother. In contrast, it emphasized that “[J.T.’s] energy and engagement with her
foster family indicates that she has a secure and trusting relationship with her current
caregivers.” The Department concluded that it was “currently not in [J.T.’s] best interest
to return to the care of her mother as her mental health remains unpredictable; thus her
ability to provide a safe and stable environment.”5
Sadly, the foster parents did not prove to be a stable long-term resource for J.T.
Significantly, the court was notified after the close of the evidentiary hearings, that on
October 1, 2018, the foster parents, with whom J.T. had lived for over two years and to
whom she was attached, had asked the Department to remove J.T. from their home. The
Department gave no reasons for the foster parents’ decision. J.T. was placed with another
foster family immediately.
Despite this setback in the long-term plans for J.T.’s future, the Department did not
change its recommendation and the Circuit Court followed the Department’s lead. In its
November 15, 2018 Amended Final Order, the juvenile court terminated Mother’s parental
rights. The court found:
5
In considering Father’s request that J.T. be returned to his custody, the Department
points out poverty and other features of life in Cameroon, and that “she does however have
strong ties to Maryland, her current foster family, and their extended family in the
community she lives in.”
13
[T]here is clear and convincing evidence that [Mother] is unfit
and unable to care for [J.T.] [Mother] cannot provide a safe
and stable home for [J.T.] and many of the issues that [Mother]
present[ed] in 2016, prompting [J.T.]’s removal from her care,
were still present at the trial. [Mother] has not stabilized her
mental health, has not established an ability to care for [J.T.] in
a safe environment, and has not secured appropriate housing.
It also noted that Appellant has had difficulty obtaining “employment” and “a stable
income.”
In its opinion, the juvenile court recited that J.T. had been removed from the home
of her foster parents and placed in another foster home. It said nothing about how this
impacted the best interests of J.T. This might be because the court was given insufficient
information, as it stated that “[n]o supplemental information was provided to the Court on
this factor.”
The juvenile court determined that the Department’s efforts “satisfied what was
required to provide reunification services to both parents.” It concluded that after weighing
the “statutory factors in light of the requisite legal presumption, [there was] clear and
convincing evidence that it is in the best interest of this Child that the parental rights of
Mother and Father be terminated.” Mother and Father both appealed from this decision.
In a December 2018 motion to reconsider filed in the juvenile court, Mother stated
that on October 1, after the TPR trial finished but before the court’s decision was made,
the Department informed all counsel that “[J.T.’s] foster parents have requested her
removal from their home.” Mother’s trial counsel also proffered that Mother had continued
to be stable on medication and recently found part-time employment. Recent reports from
the Department, as well as letters from mental health professionals treating Mother, also
14
indicate that she has been stable on medication and reliably participating in therapy. In her
motion, Mother also objected to her decreased visitation from two hours per week to one
hour per month. The motion to reconsider was denied on December 21, and Mother timely
appealed both the December 6, 2018 closing order and the December 21, 2018 orders
denying her motion for reconsideration.
DISCUSSION
Mother readily concedes that she suffers from mental illness and that, “in the past,
[her] illness made it difficult for her to maintain housing and employment.” 6 But she
maintains that “she has been compliant with therapy and medication, and mentally stable,
for over a year.”7 Mother makes this assertion partly based on alleged facts occurring after
the Amended Final Order on November 15, 2018. Because we are limited in our review
6
The parties seriously dispute what should be included in the record for purposes
of this appeal. In her opening brief, Mother made references to the transcript of a
guardianship review hearing that occurred on February 14, 2019, after the conclusion of
the guardianship merits hearing, and Mother included the transcript of that hearing in her
appendix. Before oral argument, the Department filed a Motion to Strike this appendix on
grounds that the information contained therein is not before this Court and should not be
considered. Mother continued to argue based on this post-termination evidence at oral
argument but filed no written response to the Department’s Motion to Strike. The parties
do not dispute that the November 2018 termination order was a final judgment, and
Appellants appealed from that order. Mother has no right to introduce new evidence on
appeal, and to the extent we might have discretion to allow such new evidence, we decline
to exercise it here. To allow that would undermine the finality of a termination proceeding
and be an unfair burden on the Department, as well as on the trial and appellate courts. See
Maryland Rule 8-131. We therefore grant the Department’s Motion to Strike and consider
only evidence introduced before the November order terminating parental rights.
7
As earlier indicated, for purposes of our review of the termination order, we do not
consider facts occurring after November 15, 2018, the date of the juvenile court’s amended
final order.
15
to the record from which this appeal was taken, we consider only those facts presented to
the juvenile court before the Amended Final Order. See Maryland Rule 8-131.
The most recent snapshot of Mother presented to the court by DSS is found in its
report to the court covering a period ending May 25, 2018. In its words, “[Mother] has
been able to maintain her stability by attending regular therapy and medication
management; there have been no psychiatric hospitalizations.” It reported that she lives at
Dorothy Day Transitional Housing Program, and that her social worker reported that
Mother “is motivated to better herself, is currently medication compliant and will be
working with DORS to explore part-time work.” The testimony at trial revealed that by
the time of the merits hearing, Mother had maintained residence at Dorothy Day since April
2018, while saving money to obtain permanent housing, had found employment and
maintained it for about seven months, and continued to build a bond with J.T. Nicole
Wooden (“Wooden”), a licensed social worker at Dorothy Day, testified that Mother would
be able to secure independent housing and part-time employment.8 Wooden also explained
that although Dorothy Day tracks the residents’ compliance in taking their prescribed
medication, it does not force residents to do so. According to Wooden, Mother was fully
compliant. Wooden also testified that Mother is on a waiting list for a program that would
allow her to be placed in an apartment and have housing for her daughter. It is uncertain
when there would be an opening in this program. Wooden also stated that she “looked at
8
Wooden initially expressed “no doubt” of Mother’s ability to meet these goals, but
on cross-examination softened this certainty, saying “I believe she can live independently.”
16
[Mother’s] acuity scale”9 and determined, “through [their] conversation and through
[Mother’s] background,” that “she would be able to procure housing and part time
employment . . . .” Wooden considered that Mother has a bachelor’s degree from a college
in Cameroon and had worked as an administrative assistant and home healthcare worker.
As a centerpiece of her argument, Mother asserts her fundamental constitutional
rights and points out the instability of foster care life. In her words, “Given that [J.T.] has
been moved from foster home to foster home without any permanent adoptive placement
on the horizon, and that Appellant has fought to maintain a bond with her child, termination
of parental rights is not justified or in [J.T.’s] best interests.” Mother also maintains that
the court’s “focus must be on the continued parental relationship, not custody.” In re
Adoption/Guardianship of Rashawn H., 402 Md. 477, 499 (2007). She avers that “even if,
as a custody matter, [she] cannot presently provide a home for J.T., that does not require
that her legal rights to J.T. be permanently severed.” She further draws upon the
declaration of the Court of Appeals in Rashawn H. that “poverty, of itself, can never justify
the termination of parental rights. The fundamental right of parents to raise their children
is in no way dependent on their affluence and therefore is not diminished by their lack
thereof.” Id. Mother highlights that she and Father are the only people seeking a permanent
relationship with J.T., and, because the foster parents asked that J.T. be removed from their
home, J.T. has no permanent relationship to rely on except her parents.
9
An “acuity scale” is a measure the Catholic Charities program uses to determine
the “vulnerability” of a client.
17
The Department, responding, reminds us that the court’s primary considerations in
decisions to terminate parental rights are the health and safety of the child, which are to be
considered along with the factors set forth in FL § 5-323(d), and that a reviewing court
must be mindful that “[q]uestions within the discretion of the trial court are ‘much better
decided by the trial judges than by appellate courts.’” In re Yve S., 373 Md. 551, 583
(2003) (citation omitted). DSS further maintains that the juvenile court made findings with
respect to each of the statutory factors, “which include the provision of reunification
services; the results of the parent’s efforts to change so that the child can return to the
home; the existence and severity of aggravating circumstances; and the child’s feelings,
adjustment, and well-being.” See also FL § 5-323(d). It emphasizes that the statute looks
to “whether the parent is, or within a reasonable time will be, able to care for the child in a
way that does not endanger the child’s welfare.” Rashawn H., 402 Md. at 500.
The Department points out that Mother has been psychiatrically hospitalized several
times, that she has experienced auditory hallucinations, and that she attempted suicide in
2014. It asserts that it entered into several service agreements with Mother, and that she
had made progress towards reunification by stabilizing her mental health and living
situation, but she has been unable, over a two-and-a-half-year period, to “maintain her
mental health for more than seven months.” It explains that Mother “had maintained her
mental health only with the intensive assistance of the medication management services
and other supportive services provided through her residential program,” and asserts that
“there was no evidence that she would be able to maintain her mental health without such
services.” Given her mental instability, the Department maintains, she is unfit to parent
18
J.T., and the juvenile court did not err or abuse its discretion when it determined that she
was unfit.
Standard of Review
In In re Adoption of Ta’Niya C., 417 Md. 90, 100 (2010), the Court of Appeals laid
out the three tenets that guide our review of a juvenile court’s decision to terminate parental
rights.
[First,] when the appellate court scrutinizes factual findings,
the clearly erroneous standard of Rule 8-131(c) applies.
Second, if it appears that the court erred as to matters of law,
further proceedings in the trial court will ordinarily be required
unless the error is determined to be harmless. Finally, when
the appellate court views the ultimate conclusion of the court
founded upon sound legal principles and based upon factual
findings that are not clearly erroneous, the court’s decision
should be disturbed only if there has been a clear abuse of
discretion.
Id. (cleaned up). See also In re Yve S., 373 Md. 551, 586 (2003) (citation omitted). Yet,
notwithstanding our deferential review, “[l]egal conclusions of unfitness and exceptional
circumstances are reviewed without deference.” In re Adoption/
Guardianship of C.E., 2019 WL 2384797, at *9 (Md. 2019).
Termination of Mother’s Parental Rights to J.T.
We bear in mind the “fundamental liberty interest of natural parents in the care,
custody, and management of their child . . . .” Santosky v. Kramer, 455 U.S. 745, 753
(1982). And “fundamental interests are no less involved in mental-illness-based
severances than in others . . . .” Mary Ellen C. v. Ariz. Dept. of Econ. Sec., 971 P.2d 1046,
1053 (Ariz. Ct. App. 1999). Indeed, our Court of Appeals has recently pronounced that
19
“[m]any cases of mental illness can be treated and managed and need not be cause for
termination of parental rights.” C.E., 2019 WL 2384797, at *16 n.18. In cases involving
mental illness, a court should carefully assess whether, at the time of the merits hearing,
the parent’s efforts to rehabilitate her mental illness “were beginning to bear some
fruit . . . .” Mary Ellen C., 971 P.2d at 1054.
Most TPR cases present tragic and complex situations and judges have limited
choices in resolving them. This case is no exception. Two features of this case are
uncommon. First, the mother suffers from a mental illness—not itself unusual. But
Mother’s demonstrated insight into her mental illness, her willingness to follow a regimen
of medication and therapy, and the success of that regimen, albeit interrupted, is quite rare
in a TPR case.10 In this regard, Mother sharply contrasts with, for example, the mother in
C.E., who said: “I don’t have a mental illness, I have PTSD from legal abuse syndrome.”11
10
In In re Adoption/Guardianship of C.E., 2019 WL 2384797, at *2 (Md. 2019), the
juvenile court determined the mother to be unfit, and she did not appeal that finding. The
pertinent appellate issue involved the DSS’s appeal from the trial court’s refusal to
terminate the parental rights of the father, who, due to his own personality disorder, lacked
the capacity to care for C.E. consistently, but had generally positive interactions with C.E.
Id. at *1. Like the mother, the father in C.E. refused to acknowledge the mother’s mental
illness, and the Court of Appeals held that the father’s refusal to sever his relationship with
the mother, and his “nearly total reliance” on her for providing childcare while he worked,
constituted exceptional circumstances warranting termination, even assuming he was
otherwise fit, because he refused to acknowledge the mother’s mental health conditions
and the adverse effect she had on C.E. Id. at *6. Mother’s conduct in this case can also be
contrasted with the mother in a Nebraska case whose parental rights were terminated
because she refused to acknowledge her mental illness, refused to engage in services
offered to assist with reunification, and only at the last minute did she make some effort to
comply with her goals. See In re Interest of Alec S., 884 N.W.2d 701, 708–09 (Neb. 2016).
11
C.E.’s mother was diagnosed as having “paranoia, adjustment disorder, major
depression, somatization disorder, borderline personality disorder, mania, and bipolar
20
The second unusual feature of this case is that Mother has demonstrated, time and
again, J.T. is a priority in her life. Unlike so many TPR cases, nothing in the record reflects
that Mother was irresponsible with regard to J.T. or willingly neglected the child. Her
consistent and appropriate commitment to her child has only been interrupted by her bouts
of depression and anxiety.
Title 5 of the Family Law Article governs guardianship and adoption of children in
need of assistance. See FL § 5-303(b). As Judge Joseph M. Getty wrote in C.E., 2019 WL
2384797, at *10, “[t]hese express purposes illustrate the inherent tension in any termination
of parental rights matter—to provide a child with permanency yet protect the parents from
a hasty termination of their rights.” Like the juvenile court, the Department has limited
choices and limited resources in providing services to assist a parent in being reunited with
a child who has been adjudged a CINA. And legislation dictates that a juvenile court must
consider the services that DSS has provided to the parent before parental rights are
terminated. See FL § 5-323(d)(1)(i).
The Maryland Code also sets forth the “unfit or exceptional circumstances” standard
a court must apply before it:
finds by clear and convincing evidence that a parent is unfit to
remain in a parental relationship with the child or that
affective disorder.” C.E., 2019 WL 2384797, at *2. Such cluster of mental illnesses
“caus[ed] her to lash out against her children,” demonstrate “fits of rage,” and be unable or
unwilling to communicate with the Department. Id. The juvenile court found that,
“[r]epeatedly, Mother decomposes into stress induced rage behaviors whenever a third
party challenges the smallest aspect of her parenting conduct” and that C.E. “can not and
should not be subjected to this well established pattern of psychological abuse by Mother.”
Id. at *6.
21
exceptional circumstances exist that would make a
continuation of the parental relationship detrimental to the best
interests of the child such that terminating the rights of the
parent is in a child’s best interests, the juvenile court may grant
guardianship of the child without consent otherwise required
under this subtitle and over the child’s objection.
Id. § 5-323(b). The statutory factors a court must consider are extensive and detailed in FL
§ 5-323(d):
Except as provided in subsection (c) of this section, in ruling
on a petition for guardianship of a child, a juvenile court shall
give primary consideration to the health and safety of the child
and consideration to all other factors needed to determine
whether terminating a parent’s rights is in the child’s best
interests, including:
(1)(i) all services offered to the parent before the child’s
placement, whether offered by a local department, another
agency, or a professional;
(ii) the extent, nature, and timeliness of services offered
by a local department to facilitate reunion of the child and
parent; and
(iii) the extent to which a local department and parent
have fulfilled their obligations under a social services
agreement, if any;
(2) the results of the parent’s effort to adjust the parent’s
circumstances, condition, or conduct to make it in the child’s
best interests for the child to be returned to the parent’s home,
including:
(i) the extent to which the parent has maintained regular
contact with:
1. the child;
2. the local department to which the child is
committed; and
3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the
child’s care and support, if the parent is financially able to do
so;
(iii) the existence of a parental disability that makes the
parent consistently unable to care for the child’s immediate and
22
ongoing physical or psychological needs for long periods of
time; and
(iv) whether additional services would be likely to bring
about a lasting parental adjustment so that the child could be
returned to the parent within an ascertainable time not to
exceed 18 months from the date of placement unless the
juvenile court makes a specific finding that it is in the child’s
best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a
minor and the seriousness of the abuse or neglect;
(ii) [findings regarding illegal use of controlled
dangerous substances];
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any
court of the United States, of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to
commit a crime described in item 1 of this item;
and
(v) the parent has involuntarily lost parental rights to a
sibling of the child; and
(4)(i) the child’s emotional ties with and feelings toward
the child’s parents, the child’s siblings, and others who may
affect the child’s best interests significantly;
(ii) the child’s adjustment to:
1. community;
2. home;
3. placement; and
4. school;
(iii) the child’s feelings about severance of the parent-
child relationship; and
23
(iv) the likely impact of terminating parental rights on
the child’s well-being.12
The juvenile court diligently addressed most of these rigorous statutory factors. It
did so facing the statutory directive that a decision be issued within 45 days after trial on
the merits, FL § 5-319(a)(2),13 a tight deadline it missed by only a few days. The 45-day
post-trial deadline may have played a part in the third, somewhat uncommon, feature of
this case: that the judge and both parents were notified by the Department on October 1,
2018—twelve days after the last day of trial, but before the court’s decision—that J.T.’s
foster parents requested that J.T. be removed from their home. This fact might be
unremarkable, except that J.T. had lived with the foster parents for over two years, adoption
by the foster parents was anticipated, and the Department, in its presentation to the juvenile
court, emphasized repeatedly that the strong bond between J.T. and the foster parents
bolstered the case for terminating the parents’ rights. Indeed, it introduced testimony that
J.T. would be harmed if she were removed from the custody of her foster parents.14
12
“If a juvenile court finds that an act or circumstance listed in subsection (d)(3)(iii),
(iv), or (v) of this section exists, the juvenile court shall make a specific finding, based on
facts in the record, whether return of the child to a parent’s custody poses an unacceptable
risk to the child’s future safety.” Md. Code Ann. (2005, 2012 Repl. Vol.), § 5-323(f) of
the Family Law Article.
13
The statutory deadline is not mandatory on the court, and the judge’s “paramount
consideration is the child’s best interest.” In re Adoption of Jayden G., 433 Md. 50, 67
(2013).
14
For example, in an earlier report to the juvenile court, the Department reported:
J.T.’s “first strongest attachment is to her foster parents. In consideration of the fifth factor,
the potential emotional, developmental, and educational harm to the child if moved from
the current placement, there would be harm if [J.T.] was moved from her current
caregivers.” As earlier indicated, during the merits hearing, the Department offered
24
The Department offered no information as to the reasons underlying the requested
removal of J.T. from her foster parents or about how that sudden change affected her
emotionally or her new placement. We consider these inquires crucial because, as Mother
asserts, as of October 1, 2018, J.T.’s relationship with Mother, and her limited, video-only
relationship with Father, were her only permanent attachments. Equally important, it is
highly likely that the juvenile court’s assessment of J.T.’s best interests was affected by
consideration of the apparent stability and safety the former foster family provided.
Finally, and no less important, Mother’s mental health was improving—becoming
stable—although the record we review only demonstrates that improvement for about six
months at the time of the last day of the hearing on September 18, 2018. Both her social
worker and psychiatrist opined that the medicines enabled her to remain emotionally stable
and avoid the anxiety and major depression, including auditory hallucinations, that had
caused her earlier hospitalizations.15 Neither the Department nor juvenile court should
ignore evidence, including expert testimony, about a parent’s ability to manage a mental
illness with medicine or psychotherapy. See Matter of Shantelle W., 587 N.Y.S.2d 393(N.Y. App. Div. 1992) (even where one psychiatrist opined that a parent’s illness could not
be adequately treated, the court reversed a family court termination order on grounds that
the expert’s diagnosis was based largely on a one-hour interview and directed the social
testimony that J.T.’s “energy and engagement with her foster family indicates that she has
a secure and trusting relationship with her current caregivers.”
15
The record suggests that she also improved after receiving electroconvulsive
therapy.
25
services agency to refer the mother for psychiatric therapy and evaluate her recovery
progress).
This case is unlike others involving a mental illness that a parent refuses to
acknowledge or treat. As we indicated, professionals working with Mother reported that
she was insightful about her mental illness and faithful about taking her medications. She
also readily reported to medical professionals her history of mental illness. The record
reflects that she stopped her medication when she was pregnant with her second child
because she was concerned about the risk to her unborn child. She also stopped one
medication, Seroquel, because she thought it made her sleepy and wanted to be alert for
visits with J.T. A parent’s awareness of her illness, and her willingness to seek help to
remedy the illness and take steps to protect her children, should be considered as a factor
supporting her claim to a continued parental relationship with her child. See In re D.L.M.,
31 S.W.3d 64, 68–71 (Mo. Ct. App. 2000) (juvenile court’s termination of parental rights
of a mother with schizophrenia reversed based on, inter alia, the mother’s voluntary
admission to hospital and good history regarding taking medications, as well as taking steps
to ask for help when needed).
Nor does this case involve a parent whose mental illness caused her to be abusive
to the child at any time or exhibit any violent behavior towards other people. We do not
fully agree with the Department’s argument that Mother’s “long-standing and poorly
managed mental health issues have prompted ten hospitalizations over the course of J.T.’s
short life, and there is no indication that she will ever be able to manage her mental health
with long-term consistency.” We recognize that, of these ten hospitalizations, several
26
occurred within days of each other because Mother was quickly released after initial
evaluation and administration of stabilizing medication. Her rapid releases and re-entries
may reflect financial considerations by the hospitals, as she was unable to pay for her
treatment. If she had been able to stay longer in a mental health hospital, her road to
stability may have been less rocky. We also note that most of her severe anxiety and
depression after December 31, 2015 occurred while she was pregnant with her first and
second children or shortly after their births. At least once, she was diagnosed with
postpartum psychosis. Thus, some of her acute episodes of depression and anxiety appear
to have been childbirth-related. As to her history before 2015, we have no information
about her access to psychiatric care and medications and cannot know how well she
managed her mental health. We do know, however, that her recent psychological history
of using medicine and therapy shows improvement in her mental stability.
“[D]eficiencies may be temporary and correctable—sufficiently severe to warrant
denying custody or visitation at a particular point in time, but with the understanding that
the custody or visitation decision is subject to reconsideration upon a showing of changed
circumstances.” Rashawn H., 402 Md. at 498. In considering the best interests of the child,
a court should bear in mind the words of Shurupoff v. Vockroth that “[m]any of [these]
cases reveal a situation in which the child’s best interest lies in maintaining the parental
relationship but having a third party assume responsibility for the child’s immediate and
short-term needs.” 372 Md. 639, 658 (2003). As the Supreme Court of Missouri
recognized: “Parenting is frequently a group effort. Children are often raised with
extensive help from grandparents, siblings, extended family, neighbors, day care, baby
27
sitters, a nanny, or an array of public and private service organizations.” In re A.S.W., 137
S.W.3d 448, 453 (Mo. 2004). Moreover, as an Arizona court articulated: “It is not a
parent’s burden to prove she will be capable of parenting effectively in the near future, but
[the State’s] burden to prove there is a substantial likelihood she will not.” Jordan C., 219
P.3d at 307.
We also agree with the Jordan C. court that “[t]he mere passage of time during
which a child is in [foster] care, without more, is not a ground for terminating the parent’s
rights . . . .” Id. at 308. See also In re Adoption/Guardianship of H.W., 460 Md. 201, 234
(2018) (time a father spent incarcerated while his child was in foster care, in itself, did not
justify termination of parental rights; for exceptional circumstances to exist, the court must
also find that the period of time made continuation of parental relationship detrimental to
child’s best interests); In re Adoption/Guardianship of Alonza D., 412 Md. 442, 462 (2010)
(passage of time parent and child are apart is insufficient in itself to terminate parental
rights).
We return to the dilemma faced by the juvenile court when it received notification
that the foster home parents who had been described to the court as highly worthy, and
strongly bonded with J.T., had simply requested—without any reason disclosed—that J.T.
be removed from their home. The court had inadequate information at that point to make
a decision; yet, it was facing a statutory deadline to do so. In the Amended Final Order,
addressing the statutory criteria of FL § 5-323(d)(4), the court recognized the increasingly
positive relationship with Mother during supervised visits, and regarding factors (ii) and
(iii), made the following findings:
28
(ii) the child’s adjustment to:
1. [C]ommunity[:]
[J.T.] was part of the community through the foster home
where she resided at the time of the trial. She has since been
moved to another foster home.
2. [H]ome[:]
[J.T.] had lived with Mr. and Mrs. M since May 26, 2016. On
October 1, 2018, the Department informed the Court that Mr.
and Mrs. M requested [J.T.’s] removal from their home. The
Department located a new pre-adopted placement for [J.T.] and
held a Legal Sufficiency Staffing meeting regarding the change
of placement on October 3, 2018. Docket No. 158. On October
11, 2018 [J.T.] was placed in a new foster home. Docket no.
159.
3. [P]lacement[:]
[J.T.] was placed in a new foster home after the trial. No
supplemental information was provided to the Court on this
factor.
4. [S]chool[:]
This factor is not applicable.
(iii) Due to [J.T.’s] age, there is no evidence of her feelings
about severance of the relationship with her mother and father.
(iv) [T]he likely impact of terminating parental rights on the
child’s well-being[:]
The evidence clearly and convincingly indicates that [J.T.’s]
well-being will be best-served by terminating [both parents’]
parental rights.
In light of J.T.’s unexpected removal from the care of her foster parents, and
considering the progress Mother was making in managing her mental illness at the time of
29
the merits hearing, we conclude that the juvenile court’s assessment falls short. It simply
failed to adequately take into account the foster parents’ unexplained decision to return J.T.
to the care of the Department. The juvenile court should have held an additional hearing
to reevaluate the best interests of the child after it received notification of the foster parents’
decision on October 1, 2018. That inquiry should have included further consideration of
whether, after suffering the trauma of being removed from the care of her foster parents, it
was still in J.T.’s best interests to also terminate her relationship with Mother—who
consistently demonstrated a loving relationship with J.T., even if she was not ready to
maintain a home in which she could raise her.
Because the best interest of the child standard must always be harmonized with the
fundamental right of parents in the care and custody of their children, see Rashawn H., 402
Md. at 495, the court’s inquiry should have considered Mother’s progress in her therapy
and medical regimen in deciding whether her constitutional rights were impaired by the
proposed termination order. We are instructed by Rashawn H. that the state may rebut the
presumption that a child’s interests are best served by maintaining a relationship with a
parent “only by showing that the parent is either unfit or that exceptional circumstances
exist that would make the continued relationship detrimental to the child’s best interest.”
Id. at 498.16
16
The Court of Appeals has clearly declared: “[P]overty, of itself, can never justify
the termination of parental rights. The fundamental right of parents to raise their children
is in no way dependent on their affluence and therefore is not diminished by their lack
thereof.” Rashawn H., 402 Md. at 499. “Under our Constitutions, the poor and the disabled
are no less citizens entitled to the full range of constitutional protections. The Constitutions
apply in the social welfare area as in any other area of American life.” In re
30
Because the juvenile court erred in not holding another hearing—not fully
evaluating Mother’s mental health progress in light of her fundamental right to parent or
J.T.’s best interests in light of the trauma of losing her home with her foster parents—we
reverse the order terminating the parental rights of Mother and Father. We remand to the
juvenile court to hold a new evidentiary hearing, at which evidence about J.T., Mother,
Father, and any other relevant evidence shall be considered, including evidence relating to
time periods up until the time of the new evidentiary hearing.
ORDER TERMINATING PARENTAL
RIGHTS OF MOTHER AND FATHER
REVERSED. CASE REMANDED TO
CIRCUIT COURT OF MONTGOMERY
COUNTY FOR NEW EVIDENTIARY
HEARING CONSISTENT WITH THIS
OPINION. COSTS TO BE PAID BY
APPELLEE.
Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 669 (2002) (internal
citations omitted). Clearly, Mother’s poverty played a role in this termination decision
because of her dependence on subsidized programs.
31