In Re Adoption/Guardianship of Jasmine D.

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1470
September Term, 2013
IN RE: ADOPTION/GUARDIANSHIP
OF JASMINE D.
Meredith,
Woodward,
Sharer, J. Frederick
(Retired, Specially Assigned),
JJ.
Opinion by Woodward, J.
Filed: June 30, 2014
On September 5, 2002 Jasmine D. (“Jasmine”) was born to appellant, Stephanie N.
(“Ms. N.”) and an unknown father. Jasmine was three years old when she first entered foster
care, and has spent over five of her eleven years of life in foster care as a result of Ms. N.’s
alcoholism. Jasmine’s most recent placement in foster care began on November 4, 2009, and
continues to the present. On December 2, 2009, Jasmine was adjudicated a Child in Need
of Assistance (“CINA”) in the Circuit Court for Howard County, sitting as a juvenile court,
and she was placed in the care and custody of appellee, the Howard County Department of
Social Services (the “Department”).
When its efforts toward reunification with Ms. N. failed, the Department filed a
Termination of Parental Rights (“TPR”) petition in the juvenile court on March 18, 2013.
After a trial held on August 28 and 29, 2013, the juvenile court found that Ms. N. was an
unfit parent and that termination of parental rights would be in Jasmine’s best interests, and
thus issued an order terminating Ms. N.’s parental rights.
Ms. N. appealed and presents one question for our review: Did the trial court err in
terminating [Ms. N.’s] parental rights? We answer this question in the negative and
accordingly affirm the judgment of the juvenile court.
BACKGROUND
Jasmine was first placed in foster care in February 2006 after Ms. N. was found to be
intoxicated and unable to care for Jasmine. In July 2006, Jasmine was returned to Ms. N.’s
care, but was then removed from October 2006 until January 2007 when Ms. N. “relapsed
on alcohol.” From February to May 2008, Jasmine was placed in foster care for a third time,
again due to Ms. N.’s problems with alcohol. Her most recent removal from Ms. N.’s
custody began on November 4, 2009.
On the morning of November 4, 2009, Mr. L., Ms. N.’s live-in boyfriend, arrived at
Jasmine’s elementary school to discuss an incident that had occurred previously between
Jasmine and another child. Because Mr. L. was not Jasmine’s parent, the school would not
speak with him about Jasmine. Mr. L.’s visit, however, prompted the school principal,
Nancy Thompson, to review Jasmine’s enrollment folder, where she discovered that Ms. N.
had not provided all of the necessary documents for Jasmine when she was enrolled. School
personnel then called Ms. N. to ask for the missing documents. Ms. N. responded to the
phone call by yelling that she did not want Jasmine to be taken away from her.
Sometime after the phone call, Ms. N. arrived at Jasmine’s elementary school and
demanded to remove Jasmine from her class, reiterating Mr. L.’s complaint about the
school’s handling of the issue between Jasmine and another student. Ms. N. was intoxicated,
and Thompson noted that the odor of alcohol coming from Ms. N. was “overwhelming.” She
also had visible injuries on her face that Ms. N. admitted were the result of a domestic
dispute with Mr. L. that had occurred earlier that day. Ms. N.’s intoxication and her injuries
prompted school personnel to call the police.
When the police arrived, the officers indicated that they had responded to another
domestic violence issue at Ms. N.’s home the previous weekend. Bobby Feher, a Child
Protective Services Investigator, also arrived at the school with her supervisor. Feher
2
observed that Ms. N. “clearly smelled of alcohol,” had mud on her jacket, had a bruise and
laceration on her face, and was “emotionally augmented throughout the contact with her and
her emotions vacillated from crying hysterically, to being belligerent with the officers by
calling them ass holes . . . [and calling] my supervisor a bitch.” Ms. N. denied drinking
alcohol, but admitted that she had taken oxycontin or oxycodone that day for a dental issue.
She refused a breathalyzer when offered.
Feher told Ms. N. that Ms. N.’s behavior raised concerns about Jasmine’s safety, and
asked if Ms N. could help devise an alternative plan for Jasmine’s care. Ms. N. “became
extremely belligerent” at that point, and refused to enter into a safety plan. Because Ms. N.
refused to create a safety plan, Feher removed Jasmine from Ms. N.’s care that day, placed
the child in a foster home, and filed a shelter care petition.
A shelter care hearing took place the following day. Prior to the hearing, Ms. N.
called Feher stating that she could not attend the hearing because she had to go to work. She
told Feher that she wanted her daughter back, and admitted to consuming alcohol the
previous day. Ms. N., however, was seen near Jasmine’s school at the time of the shelter care
hearing, when she had told Feher that she would be at work. At the conclusion of the
hearing, the juvenile court ordered that Jasmine remain in foster care.
On November 16, 2009, Feher visited Ms. N.’s home for a prescheduled visit. She
found nothing of concern about the home environment, but noted that Ms. N. again admitted
that she had been drinking on the day Jasmine was removed from Ms. N.’s care, and admitted
3
that she had continued to use alcohol and live with Mr. L. Ms N. also stated that she had
initiated alcohol services in the past, but made excuses for not successfully completing them.
Feher offered the Department’s services with regard to a substance abuse assessment and
toxicology screen, but Ms. N. refused Feher’s help.
Around the time of the shelter care hearing, Ms. N. called the Department stating that
she did not want to have visitation with Jasmine because she was embarrassed by the injuries
inflicted on her by Mr. L. and did not want Jasmine to see her. On November 19, 2009, Ms.
N. called the Department to say that she was still not comfortable visiting Jasmine, noting
that Mr. L. was “giving her a hard time.” By this time, Ms. N. had already canceled multiple
visits with Jasmine. She left additional messages with the Department the following two
days, the first day stating that she loved Jasmine but wanted to give her up for adoption
because she was tired of fighting, but the second day asserting that Feher “was not going to
be specifying anything about her daughter, [and] that she [was] going to sue the County.”
Feher believed Ms. N. had been drinking on the second day.
On December 2, 2009, a master recommended that Jasmine be adjudicated CINA and
placed in the care and custody of the Department. The juvenile court accepted the master’s
recommendations and also ordered Ms. N. to complete a substance abuse assessment, a
domestic violence assessment, and a mental health assessment, and to participate in
recommended treatment.
After the CINA adjudication, on January 11, 2010, Ms. N. began meeting with a
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psychiatrist, Dr. Daniel D. Storch. On February 24, 2010, Dr. Storch was called to the
Howard County General Hospital after Ms. N. threatened to commit suicide. Dr. Storch
learned that Ms. N. had a blood alcohol level of .329 and had tested positive for marijuana.
On February 25, 2010, Cheryl Lawson-Anderson, Ms. N.’s social worker at the
Department, called Dr. Storch to inform him that she had received at least five to six voice-
mails from Ms. N. saying that she was going to commit suicide. Dr. Storch met with Ms. N.
later that day, and she explained that she had been having a bad week, but that she “got [her]
medicine [and] feel[s] 80% better.” Ms. N. stated that she had called the school in addition
to Lawson-Anderson to say that she missed her daughter and admitted that she “might have
said” she was going to hurt herself. Ms. N. told Dr. Storch that she would not hurt herself,
however, and that she would go to counseling and start back in Alcoholics Anonymous
(“AA”).
Dr. Storch completed a psychiatric evaluation for Ms. N. based on their two meetings
on January 11 and February 25, 2010, and diagnosed her with mood disorder and alcohol
dependence. Dr. Storch recommended that Ms. N. continue substance abuse treatment and
domestic violence counseling, that she attend ninety AA meetings in ninety days, and that
she receive psychiatric treatment.
On March 2, 2010, Ms. N. entered into a service agreement with the Department, and
agreed to maintain contact with Jasmine, complete a psychiatric evaluation, submit to a drug
and alcohol evaluation, submit to a domestic violence assessment, provide Jasmine financial
5
support, and provide proof of employment. The Department agreed to arrange regular visits
between Jasmine and Ms. N., and to refer Ms. N. to appropriate resources and supportive
services. Ms. N. completed the drug and alcohol evaluation, the domestic violence
assessment, and had previously completed the psychiatric evaluation through Dr. Storch.
On January 5, 2011, Ms. N. and the Department entered into a second service
agreement to ensure that Ms. N. was continuing in therapy and complying with Department
recommendations. Ms. N. agreed to continue treatment for alcohol abuse, submit to random
drug and alcohol testing, attend domestic violence counseling, and continue to see her
psychiatrist and follow all treatment recommendations including participating in AA
meetings.
Ms. N. partially complied with the requirements of the second service agreement. She
met with her therapist, Lana Fink, a clinical social worker at the Howard County Health
Department, but missed many of the appointments. Between July 2010 and October 2012,
Scott Alpert, a licensed clinical professional counselor and certified chemical dependency
counselor, conducted random drug screening for Ms. N. Ms. N. had nine positive tests for
alcohol and refused to take a random test approximately thirty times.1 Alpert had to
temporarily suspend services four times due to her refusal to submit to drug testing.
Ms. N. participated in some AA meetings, but complained that the meetings depressed
her and made her want to drink. She attended domestic violence classes, but continued her
1
Refusal to take a test is considered a presumptive positive result.
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relationship with Mr. L. The Department arranged for Ms. N. to enter inpatient treatment for
alcohol dependence four times, but Ms. N. refused each offer, stating that she did not drink.
The service agreement also allowed Ms. N. to have supervised visitation with Jasmine once
a week for two hours. Ms. N. missed forty-five of those scheduled visits.
From about the time of Ms. N.’s first service agreement with the Department, Jasmine
also had been meeting with a therapist. Bertha Carrelli, a clinical social worker and
psychotherapist at A Healing Place, met with Jasmine bi-weekly through the date of the TPR
hearing on August 28, 2013. From June to September 2011, Carrelli also held family therapy
sessions with Ms. N. and Jasmine.
On October 19, 2011, Alpert performed a comprehensive substance abuse assessment
of Ms. N. at the request of Lawson-Anderson. Based on his evaluation, Alpert recommended
that Ms. N. attend a minimum of twenty-eight days at a residential drug and alcohol treatment
facility followed by intensive outpatient treatment for three months. Alpert arranged for Ms.
N. to be admitted to an inpatient center, but Ms. N. refused to complete the center’s phone
intake, making her ineligible for admission. She also stated she did not need inpatient
therapy, because she does not drink. Around this time, the juvenile court ordered Ms. N. to
enter inpatient treatment for her alcohol dependency and suspended supervised visits between
Ms. N. and Jasmine until Ms. N. complied with the order. Ms. N. never entered inpatient
treatment.
Despite Ms. N.’s failure to comply with the court’s order to attend inpatient treatment,
7
in December 2011, the juvenile court again allowed Ms. N. to have supervised visitation with
Jasmine. Family therapy sessions had ceased when Ms. N.’s visitation rights were
suspended, but in May 2012, the Department requested that family therapy resume. Jasmine,
however, did not want family sessions to begin again, because she worried that Ms. N. would
be angry if they talked about Jasmine’s feelings. As a result, the Department did not require
family sessions to resume.
On August 22, 2012, Jasmine began living with her current foster parents. Shortly
thereafter, Jasmine asked that family therapy sessions with Ms. N. resume, and on September
28, 2012, Jasmine and Ms. N. met with Carrelli. At the session, Jasmine expressed how she
felt when Ms. N. was drinking, saying that she felt sad, lonely, and scared. Ms. N. denied
having been intoxicated in front of Jasmine. Family sessions were again suspended after
Jasmine subsequently requested that they be stopped.
On December 6, 2012, the juvenile court ordered a change in Jasmine’s Permanency
Plan from reunification with Ms. N. to adoption by her foster family. On December 26,
2012, the juvenile court again suspended Ms. N.’s supervised visitation with Jasmine until
Ms. N. provided documentation to the court that she was receiving mental health treatment.
Ms. N. never submitted such documentation, and thus has not seen Jasmine since December
of 2012.
On March 18, 2013, the Department filed a TPR petition in the juvenile court. Ms.
N. filed a Notice of Objection to the TPR petition on April 8, 2013, which stated, “I am a
8
very good mother and I don’t drink. I want my daughter back.” The TPR trial was
conducted on August 28 and 29, 2013. Jasmine, through counsel, supported termination of
Ms. N.’s parental rights. Ms. N. was not present at either day of the trial.
Feher testified on behalf of the Department, and stated that Ms. N. sometimes called
Department multiple times in a day, leaving messages that became increasingly erratic as the
day progressed, leading Feher to suspect that Ms. N. had been drinking. In the messages, Ms.
N. would state that she loved her daughter and could not live without her, then state that
Jasmine should be taken away from her, and finally pronounce that she was going to kill
herself. Feher testified that alcohol use, denial of alcohol as an issue, and domestic violence
were consistent factors in Ms. N.’s history with the Department.
Lawson-Anderson also testified on behalf of the Department, corroborating Feher’s
testimony that when Ms. N. drinks, she would call the Department and leave disturbing and
offensive phone messages. She stated that the primary barrier to Jasmine’s reunification with
Ms. N. was Ms. N.’s drinking problem and her denial of drinking as an issue.
Carrelli was accepted as an expert in the field of clinical social work and testified on
behalf of the Department. She stated that it took Jasmine some time to open up, but that
Jasmine eventually expressed sadness about being in foster care, and sadness and
disappointment about Ms. N.’s missing supervised visits. Jasmine also told Carrelli that she
was concerned about being reunited with Ms. N., because Ms. N. had told Jasmine that they
would leave Maryland once Jasmine was returned to her, and she did not like Ms. N. and Mr.
9
L. fighting. By the end of 2012, Carrelli testified that Jasmine expressed her desire to be
adopted by her current foster family, but that she may want to see Ms. N. again in the future.
Fink was accepted by the court as an expert licensed clinical social worker, and
testified on behalf of Ms. N. Fink testified that Ms. N. never developed insight into the
issues that required her to attend counseling. She stated that, although Ms. N. “came [to
appointments] on a regular basis for a considerable amount of time,” Ms. N.’s attendance at
therapy became less consistent as time progressed.
Paula S. (“Ms. S.”), one of Jasmine’s foster parents, also testified at the hearing, and
stated that Jasmine was doing well living in her home. Ms. S. stated that, since moving to
her current foster home, Jasmine has received A’s in school, developed friendships with her
peers, and bonded with her foster parents and their extended families. She stated that she and
her partner would adopt Jasmine if it became an option.
At the end of the trial, the juvenile court issued an oral order terminating Ms. N.’s
parental rights.2 The order terminating Ms. N.’s parental rights was entered on August 30,
2013, and Ms. N. noted a timely appeal on September 18, 2013.
THE JUVENILE COURT’S DECISION
The juvenile court gave a detailed summary of the testimony it found credible, and
then considered each of the required statutory factors for TPR proceedings under Maryland
2
Jasmine’s father, who is unknown, was deemed to have consented to termination of
his parental rights after the Department was unable to find him.
10
Code (1984, 2012 Repl. Vol.), § 5-323(d) of the Family Law Article (“FL”). The court
specifically determined that, “by clear and convincing evidence [ ] the facts have
demonstrated an unfitness of Ms. N[.] to remain in a parental relationship with her
child . . . .” The court cited Feher’s testimony concerning the events of November 4, 2009
when Ms. N. arrived at Jasmine’s elementary school intoxicated, belligerent, and visibly
injured from a recent domestic dispute. The court discussed Ms. N.’s multiple failures and
refusals of tests for alcohol use, her inappropriate phone calls to the Department made when
intoxicated, in which she threatened to hurt herself and others, and the fact that Ms. N. was
“never able to be sober enough to have unsupervised visits with Jasmine and that’s during
the entire time that she’s [been] in [foster] care from 2006.” In addition, the court considered
Ms. N.’s consistent failure to begin or complete recommended and required treatment for her
alcohol dependency, despite the Department’s multiple attempts to facilitate such treatment.
Carrelli’s testimony was cited as evidence that Jasmine was apprehensive about reuniting
with her mother, and the court noted that Ms. N.’s own witness, Fink, stated that Ms. N.’s
prognosis for improvement was not good, because Ms. N. refused to accept that she had a
problem with alcohol.
After setting forth the above testimony supporting Ms. N.’s unfitness as a parent, the
juvenile court methodically discussed each factor under FL § 5-323(d). We present a
summary of the court’s analysis, findings, and conclusions below.
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FL § 5-323(d)(1)(i)—Services offered to the parent before the child’s placement
The trial court offered a history of the Department’s role in Jasmine and Ms. N.’s life,
noting that Jasmine had been placed in foster care three times prior to her most recent
removal from Ms. N.’s home in 2009. Each of Jasmine’s removals was due to Ms. N.’s
intoxication and consequent inability to take care of Jasmine. Each time the Department
placed Jasmine in foster care, Ms. N. was offered services including, at various times, mental
health counseling, a detoxification program, random urinalysis testing, and a substance abuse
assessment. The trial court found “by clear and convincing evidence that under the
circumstances, the Department’s attempts at addressing the mother’s problem at its inception
and prior to coming into care were appropriate.”
FL § 5-323(d)(1)(ii)—The extent, nature, and timeliness of services offered to facilitate
reunion of the parent and child
In consideration of the extent, nature, and timeliness of services offered to Ms. N. to
help her work toward reunification with Jasmine, the trial court stated:
There was Health Department treatment, resources provided, [Ms. N.]
was given [a] list of resources, there was four requests for in-patient,
the funds were expended for taxis for visitation services, for alcohol
services, substance abuse testing, psychiatric evaluations,
psychological evaluations. Despite all of these resources, there’s
been no progress or no significant progress by the mother.
She’s had periods of sobriety and other periods of not
complying with treatment. At one point, the Court also stopped
visitation in December of 2012 until there was an engagement into
treatment and Ms. N. still, to this day, has not taken advantage of
that. So there’s been many, many resources expended by the local
department in order to facilitate reunification.
12
(Emphasis added).
FL § 5-323(d)(1)(iii)—The extent to which the Department and parent fulfilled their
obligations under the social services agreement
Ms. N. signed two service agreements with the Department during the time Jasmine
was most recently placed in foster care, from November 2009 to August 2013. The trial
court found that the Department had fulfilled its obligations listed in the service agreements
by providing referrals for doctors and treatment programs, and providing various assessments
and testing. Ms. N. was credited with partially fulfilling her obligations, the court noting that
“she did, in fact, submit to either the substance abuse assessment, the mental health
evaluations[,] but she has not complied with her obligations in attending treatment in an
attempt to remain sober.”
FL § 5-323(d)(2)—The parent’s effort to adjust her circumstances, condition or conduct
to make it in the child’s best interest to be returned to the parent’s home
The juvenile court determined that Ms. N. had not made an effort to adjust her
behavior or her circumstances in a manner that would allow Jasmine to return home, and
observed that Ms. N.’s recent contact with her daughter had been very limited. The court
concluded that Ms. N. “has really made no effort at all to adjust her circumstances in order
to facilitate or to make reunification possible or [ ] in the child’s best interest.”
FL § 5-323(d)(2)(i)—The parent’s regular contact with the child, the Department, and
the child’s caregiver
The court noted that Jasmine and Ms. N. have not been in regular contact since
Jasmine was removed in November 2009, and that in the eight months preceding the TPR
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hearing, there was no contact between parent and child. Although Ms. N. kept in contact
with the Department, much of that contact was inappropriate. The juvenile court pointed out
that there was a connection between Ms. N.’s consumption of alcohol and her inappropriate
contact with the Department, specifically noting that there were “at least ninety-six
inappropriate calls/contact by phone with the Department.” The court attributed Ms. N.’s
limited contact with Jasmine and Jasmine’s foster parents to Ms. N.’s “inappropriate
behavior and derogatory comments.”
FL § 5-323(d)(2)(ii)—The parent’s financial contribution to the child, if the parent is
able
The juvenile court described Ms. N. as being unable to maintain stable employment.
Consequently, the court determined that Ms. N. was unable to financially contribute to
Jasmine’s care.
FL § 5-323(d)(2)(iii)—The existence of a parental disability that would make it difficult
to care for the child’s needs for long periods of time
Initially noting that it remained a question of whether Ms. N.’s abuse of alcohol was
a disability, the juvenile court nonetheless found “by clear and convincing evidence that [Ms.
N.’s] alcohol dependency and her denial of having an alcohol problem, her inconsistent
attempts at treatment, her inability to remain sober for any long period of time does, in fact,
make it difficult or impossible for her to care for the child’s immediate and ongoing
psychological needs.”
14
FL § 5-323(d)(2)(iv)—Whether additional services would result in lasting parental
change so that the child could be returned
The juvenile court noted that a parent is generally allowed eighteen months to make
lasting changes, and in this case Jasmine had been in the Department’s care “way beyond the
eighteen months.” Because over three years had passed since the date of Jasmine’s most
recent removal from Ms. N.’s home and placement into the Department’s care, and services
offered to Ms. N. had not yet been successful in achieving reunification, the juvenile court
concluded that additional services would not alter Ms. N.’s ability to care for Jasmine.
FL § 5-323(d)(3)(i)–(v)—Whether the parent has abused or neglected the child, the
seriousness of that abuse or neglect, the parent’s use of drugs, the parent’s previous
convictions for violent crimes, and the parent’s previous loss of parental rights
The juvenile court stated that these factors were not applicable to the present case.
Previously in its oral opinion, however, the trial court noted that Ms. N. had been indicated
for neglect based on Ms. N. chronically exposing Jasmine to alcohol and domestic violence,
and Ms. N.’s denial of her substance abuse issues.
FL § 5-323(d)(4)(i)—The child’s emotional ties with her parent, siblings, and others
who may significantly affect the child’s best interest
The juvenile court acknowledged Jasmine’s tie to and love for Ms. N., stating that
“based on the history from 2006, [ ] one of the reasons why [the Department] kept attempting
reunification or returning the child is because of the child’s bond with [Ms. N.].” Despite
this bond, the court described a change in Jasmine’s opinion based on the events of the past
15
six to seven years, and noted that she now prefers to be adopted.3
FL § 5-323(d)(4)(ii)—The child’s adjustment to the community, home, placement, and
school
The juvenile court referenced the testimony of Jasmine’s foster parent, Ms. S., who
stated that, although Jasmine had some behavioral issues at first, she had adjusted well to her
new home. Ms. S. described Jasmine as receiving straight A’s for the past two semesters in
school, and noted that the child participated in family events including a wedding and
Thanksgiving celebration. Jasmine was involved in a variety of activities including dance,
singing, swimming, and drama. The court determined that Jasmine is bonded with her foster
family, and that it “is clearly an appropriate placement.”
FL § 5-323(d)(4)(iii)—The child’s feelings about ending the parent/child relationship
Because Jasmine told Carrelli and her foster parents that she wants to be adopted, the
juvenile court concluded that Jasmine wants to end the parent/child relationship.
FL § 5-323(d)(iv)—The likely impact of terminating parental rights on the child’s well-
being
The juvenile court stated that, based on all of the evidence presented, it did not think
there would be any harmful or detrimental impact on Jasmine by terminating Ms. N.’s
parental rights.
3
Although Jasmine has siblings, she has seen them only once. At the TPR hearing,
Ms. S. acknowledged that Jasmine has expressed some desire to see her brothers and her
mother, and stated that she was open to the possibility of Jasmine having a continued
relationship with her biological family if it was safe for her to do so.
16
Based upon its consideration of all the above statutory factors and the testimony and
evidence presented at the trial, the juvenile court terminated Ms. N.’s parental rights.
DISCUSSION
In reviewing a juvenile court’s decision to terminate parental rights, we apply three
different levels of review:
“Namely, [w]hen the appellate court scrutinizes factual findings, the
clearly erroneous standard of [Rule 8-131(c) ] applies. [Second,] [i]f
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.”
In re Adriana T., 208 Md. App. 545, 553-54 (2012) (alterations in original) (footnote
omitted) (quoting In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 (2010)). In
reviewing whether the juvenile court abused its discretion in its ultimate decision to terminate
parental rights, we are mindful that, “‘to be reversed the decision under consideration has to
be well removed from any center mark imagined by the reviewing court and beyond the
fringe of what that court deems minimally acceptable.’” In re Shirley B., 419 Md. 1, 19
(2011) (quoting In re Yve S., 373 Md. 551, 583-84 (2003)).
Parents have a “[c]onstitutionally-based right to raise their children free from undue
and unwarranted interference on the part of the State, including its courts.” In re
Adoption/Guardianship of Rashawn H., 402 Md. 477, 495 (2007). This right creates “a
17
presumption of law and fact—that it is in the best interest of children to remain in the care
and custody of their parents.” Id. That presumption, however, has limits, and the right of
a parent to make decisions regarding the care, custody, and control of their children may be
taken away where (1) the parent is deemed unfit, or extraordinary circumstances exist that
would make a continued relationship between parent and child detrimental to the child, and
(2) the child’s best interests would be served by ending the parental relationship. Id.; see id.
at 496 (“[O]ur case law has been clear and consistent, that, even in contested adoption and
TPR cases . . . , where the fundamental right of parents to raise their children stands in the
starkest contrast to the State’s effort to protect those children from unacceptable neglect or
abuse, the best interest of the child remains the ultimate governing standard.”); FL § 5-323(b)
(requiring the court to determine unfitness or extraordinary circumstances by clear and
convincing evidence). In determining the child’s best interests, the juvenile court is required
to consider the statutory factors in FL § 5-323(d). In re Adoption of Jayden G., 433 Md. 50,
94 (2013) (“A finding of parental unfitness overcomes the parental presumption, but it does
not establish that termination of parental rights is in the child’s best interest. To decide
whether it is, the court must still consider the statutory factors under FL § 5-323(d).”).
In the instant case, Ms. N. does not challenge the juvenile court’s factual findings or
analysis of the statutory factors under FL § 5-323(d). Instead, Ms. N. argues that (1) the
evidence did not support a finding that maintaining a parental relationship with Jasmine
would be detrimental to the child, (2) Ms. N. and Jasmine had a strong parent-child bond, (3)
18
parents are not expected to be perfect and Ms. N.’s parenting was not as bad as it could have
been, and (4) there was no evidence that severing Ms. N.’s ties to Jasmine would be in
Jasmine’s best interests. We will address each of Ms. N.’s contentions in turn.
First, Ms. N. argues that the evidence did not demonstrate that continuing her parental
relationship with Jasmine would be detrimental to Jasmine, and that exceptional
circumstances did not exist to justify termination of her parental rights. For support, Ms. N.
cites to In re Adoption/Guardianship of Alonza D., Jr., 412 Md. 442 (2010), arguing that the
length of time a child has been in foster care is “insufficient to satisfy a determination of
exceptional circumstances, absent any finding that a continued relationship with [the child]
would be detrimental to them.” The juvenile court, however, did not determine that
exceptional circumstances existed; rather it concluded that Ms. N. was an unfit parent.
Pursuant to FL § 5-323(b), before terminating a biological parent’s rights, the juvenile
court is required to find, by clear and convincing evidence, that (1) “a parent is unfit to
remain in a parental relationship with the child” or (2) “that 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 . . . .”
If the court determines, therefore, that exceptional circumstances exist, only then must it link
those circumstances to the continuation of the parental relationship being detrimental to the
best interests of the child. See id.; see also In re Adoption/Guardianship of Darjal C., 191
Md. App. 505, 531-32, cert. denied, 415 Md. 42 (2010). If the court determines that the
19
parent is unfit to remain in a parental relationship with the child, however, then the continued
parental relationship is, in our view, by definition detrimental to the child, and there need not
be an express finding to that effect before terminating parental rights. See FL § 5-323(b).
Because in the instant case the juvenile court determined that Ms. N. was unfit, Ms. N.’s
arguments regarding exceptional circumstances are beside the point.
Second, Ms. N. contends that the bond between Jasmine and her mother was very
strong, and that Ms. N. never gave up on reunification with her daughter. We have
previously stated that FL § 5-323(d) “does not require a trial court to weigh any one statutory
factor above all others. Rather, the court must review all relevant factors and consider them
together.” In re Adoption/Guardianship No. 94339058/CAD, 120 Md. App. 88, 105 (1998).
In the instant case, the juvenile court acknowledged Jasmine’s bond with her mother, but
decided that it was not sufficient to overcome the negative aspects of Ms. N.’s parenting
abilities that make it in Jasmine’s best interests to terminate the parental relationship. Ms.
N.’s alcoholism, her unwillingness to accept her alcoholism or receive treatment, and her
abusive relationship with Mr. L. contributed to this decision. In addition, the court noted that
Jasmine’s bond with her mother had changed over the years that she was in foster care, and
that now Jasmine wants to be adopted. Thus Ms. N.’s argument that she and Jasmine share
a strong bond does not convince us that the trial court should have concluded Ms. N. was a
fit parent, in light of the other evidence adduced at the TPR hearing.
Next, Ms. N. argues that, “even though the [Department] demonstrated that [Ms. N.]
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has not successfully achieved sobriety it did not demonstrate that she was unworthy of having
at least a legal relationship with her child.” Ms. N. points out that she never physically
injured Jasmine, that Jasmine did not have significant absences at school, and that Jasmine
was never subject to chronic abuse, chronic or life-threatening neglect, or sexual abuse or
torture. Ms. N. also argues that her alcoholism was insufficient alone to justify terminating
her parental rights without proving that she was unable or unwilling to provide for Jasmine.
Again, Ms. N. overlooks the fact that the court must weigh all of the statutory factors
together, without presumptively giving one factor more weight than another. Id. Indeed,
although the juvenile court must consider every factor in FL § 5-323(d), it is not necessary
that every factor apply, or even be found, in every case. See In re Adoption No. 2428, 81 Md.
App. 133, 139 n.1 (1989). Instead, as noted above, the court must find under FL § 5-323(b)
that either the parent is unfit to remain in a parental relationship with the child, or
exceptional circumstances exist that would make a continuing parental relationship
detrimental to the child, and then fuse such finding with a determination as to the best
interests of the child using the applicable factors under FL § 5-323(d), before concluding that
the termination of the rights of a parent is in the child’s best interests. See FL § 5-323(b);
In re Jayden G., 433 Md. at 96 n.32 (noting that the concepts of parental unfitness,
exceptional circumstances, and the child’s best interests “are fused together, culminating in
the ultimate conclusion of whether terminating parental rights is in a given child’s best
interests”).
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Here, it was not solely Ms. N.’s reliance on alcohol that caused the juvenile court to
terminate her parental rights, but rather Ms. N.’s behavior while she was using alcohol, her
refusal to seek and accept treatment for her alcohol dependency, her failure to acknowledge
her use of alcohol as a problem, and the consequent effect of the above on her ability to raise
Jasmine, including her failure to remain in contact with her daughter. Although Ms. N. did
not subject Jasmine to any serious injury, the juvenile court was provided ample evidence of
Ms. N.’s inability to be a parent to Jasmine and thus could conclude that Ms. N. was unfit
and Jasmine’s best interests would be served by terminating Ms. N.’s parental rights.
Finally, Ms. N. argues that “there was no evidence that severing Jasmine’s ties to her
natural mother was in her best interests.” Although the juvenile court made a determination
as to the unfitness of Ms. N. as Jasmine’s parent, it did not explicitly state that a termination
of Ms. N.’s parental rights would be in Jasmine’s best interest in either its oral opinion or
written order.4 This Court has previously stated, however, that a juvenile court in making a
TPR determination “is not required to recite the magic words of a legal test,” and that “‘mere
incantation of the “magic words” of a legal test, as an adherence to form over substance, may
not cause the Genie to appear and is neither required nor desired if actual consideration of
the necessary legal considerations are apparent in the record.’” In re Adoption/Guardianship
of Darjal C., 191 Md. App. at 532 (quoting S. Easton Neighborhood Ass’n v. Town of
4
At the beginning of its oral opinion, the juvenile court did state that “the Court has
to review this [case] under [FL §] 5-323(b) [] standard, as I said, as clear and convincing
evidence that terminating the parental rights of [Ms.] N. is in Jasmine’s best interest.”
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Easton, 387 Md. 468, 495 (2005)). In the case sub judice, the facts adduced in the juvenile
court and language of the court’s oral decision make clear that the court determined that
Jasmine’s best interests would be served by ending Ms. N.’s parental rights.
The juvenile court cited to Ms. N.’s threats to hurt herself and others, and Jasmine’s
concern about her mother’s safety as a result. The court discussed Ms. N. being indicated
for neglect based on her “denial and/or minimization of the issues concerning substance
abuse and chronically exposing the child to the mother’s alcohol and all this domestic
violence.” The court also referenced Fink’s testimony that Ms. N. had not accepted her
alcohol dependency and that her “prognosis is not good unless she is able to have insight”
into those issues. The court observed that Ms. N. had “never been able to be sober enough
to have unsupervised visits with Jasmine and that’s during the entire time that she’s [been]
in the care from 2006.”
In addition, the juvenile court pointed to Ms. N.’s unwillingness to comply with court
orders such that she did not visit with Jasmine for eight months prior to the TPR trial. The
court cited to Ms. N.’s initial embarrassment and refusal to see Jasmine due to her injuries,
noting that the missed visits caused Jasmine emotional turmoil for years while she was in
foster care. The court also discussed how Jasmine’s development began to flourish in the
period that Ms. N. could not see her child. Jasmine’s previous behavioral issues subsided,
and she began to perform well academically while being integrated into her extended foster
family. The court noted that Jasmine eventually decided that she would rather be adopted
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by her foster parents than continue a relationship with Ms. N.
The juvenile court’s decision was based on ample evidence that it would be in
Jasmine’s best interest to terminate Ms. N.’s parental rights. This, in addition to the court’s
finding that Ms. N. was an unfit parent, fully supported the grant of the TPR petition. We
find no error or abuse of discretion in the court’s decision.
JUDGMENT OF THE CIRCUIT COURT
FOR HOWARD COUNTY AFFIRMED;
APPELLANT TO PAY COSTS.
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