In re: Adoption/G'ship of C.A. & D.A.

Circuit Court for Anne Arundel County
Case No. C-02-JV-16-000262 & 263
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2234
September Term, 2016
IN RE: ADOPTION/GUARDIANSHIP OF
C.A. AND D.A.
Kehoe,
Leahy,
Kenney, James A., III
(Senior Judge, Specially Assigned),
JJ.
Opinion by Kenney, J.
Filed: August 30, 2017
On September 15, 2014, the Circuit Court for Anne Arundel County, sitting as the
juvenile court, declared D.A. and C.A., children of A.C.-R., appellant (“Father”), each to
be a Child in Need of Assistance (“CINA”). D.A. and C.A. (the “Children”) were placed
in the custody of the Anne Arundel County Department of Social Services (the
“Department”). In 2016, the Department filed a petition seeking to terminate appellant’s
parental rights. Following a hearing, the court granted the Department’s petition and
terminated appellant’s parental rights. In this appeal, appellant presents the following
question for our review:
Did the circuit court err in terminating [a]ppellant’s parental rights?
For reasons to follow, we answer appellant’s question in the negative and affirm the
judgment of the circuit court.
BACKGROUND
C.R.-A. (“Mother”) gave birth to D.A. and C.A. on February 7, 2007 and February
20, 2009, respectively.1 Father, who was in the country illegally, was arrested in 2010 “due
to domestic violence between himself and the children’s mother” and was eventually
deported to his home country of Mexico. At that time, Mother and her five minor children,
all of whom were the children of Father, “resided in a boarding house with multiple families
known for illegal activities including drug use, gambling and excessive alcohol.” In 2011,
Mother was indicated for neglect by the Prince George’s County Department of Social
Services (hereinafter “PGDSS”).
1
Mother consented to the adoption of D.A. and C.A. and voluntarily relinquished
her parental rights. She is not a party to this appeal.
In August of 2013, Mother befriended Levi R. and Mary D., a married couple whom
she met while the couple was doing missionary work for their church. At the time, Mother
was living in a tent in Washington D.C. with her five children, including D.A. and C.A.,
and her boyfriend, Phillipe W. Not long after meeting Levi R. and Mary D., Mother asked
Mr. R. if he and his wife would care for the five children. The couple agreed and eventually
filed for emergency custody of all five. The juvenile court granted custody of the five
children to Mr. R. and Ms. D. in December of 2013. In that order, the court found that
Father had “no present involvement in the case.”
Around the same time, Father was arrested and incarcerated in a federal prison in
Louisiana because he again came into the United States illegally and was “trying to bring
others into the country.” The record does not disclose Father’s whereabouts between the
time he was deported in 2010 and the time he was incarcerated in 2013.
In February 2014, PGDSS investigated a report of child sexual abuse against
Phillipe W. involving D.A. and C.A. The alleged sexual abuse happened “sometime in
later 2012 or early 2013” when the Children were living in a tent with Mother and Phillipe
W. PGDSS ultimately determined that the allegations involving D.A. were “indicated;” a
finding of “unsubstantiated” was issued regarding the allegations involving C.A.
In July of 2014, Mr. R. informed the Department that he and his wife could no longer
care for the Children. The Department subsequently filed and was granted a Petition with
Request for Shelter Care, and D.A. and C.A. were placed in foster care.2 At the time,
2
The Department also filed custody/guardianship petitions regarding the other three
children.
2
Mother’s whereabouts were unknown, while Father remained incarcerated in federal
prison. In August of 2014, the court held a review hearing regarding the shelter care order,
and, on September 15, 2014, the court found D.A. and C.A. to be CINA and ordered out-
of-home placement under the care of the Department.
The court held another review hearing in January of 2015. By this time Mother had
been located and was present at the hearing. Also present was counsel for Father, who
remained in federal detention.3 Following the hearing, the court found that the Department
had made reasonable efforts at reunification. The court also ordered that D.A. and C.A.
were to remain in the custody of the Department and that Mother be allowed supervised
visitation. The court made no findings regarding Father.
In May of 2015, the court held a hearing regarding D.A. and C.A.’s permanency
plans. Again, Mother and counsel for Father were present for the hearing. Following the
hearing, the court found that Mother had made “no progress toward correcting the problems
that caused the children to be placed in foster care,” that she continued “to live with a man
who may have abused one of her children,” that she had no employment or place to live,
and that she continued “to test positive for illegal drugs.” The court also noted that Father
remained “incarcerated in Louisiana.” As a result of these and other findings, the court
ordered that D.A. and C.A.’s permanency plans be changed from reunification to custody
and guardianship with a relative.
3
The record is unclear as to whether Father’s counsel made any arguments on his
behalf.
3
In November of 2015, the court held another hearing regarding D.A. and C.A.’s
permanency plans. Mother and counsel for Father were present at the hearing, and Father,
who was still incarcerated, participated by telephone. The court ultimately ordered that
D.A. and C.A.’s permanency plans be changed to custody and guardianship by a non-
relative. The Department, in April of 2016, filed petitions for guardianship of D.A. and
C.A., and the court held a hearing on the Department’s petitions in October of 2016.
At that hearing, Maggie Swink, one of the Department’s assigned in-home services
workers for D.A. and C.A., testified that, during her time as the Children’s caseworker, the
Department provided Mr. R. and Ms. D. with various in-home services, including weekly
visits, assisting with clothing and food for the Children, offering referrals for therapy, and
working with the couple on parenting techniques. Ms. Swink also testified that she
contacted Father regarding placement for the Children and that Father provided two
potential resources: his mother and a “fictive relative that he called a cousin who was
living in California.” Ms. Swink could not locate Father’s “cousin” but did manage to
locate his mother, who indicated that she was not willing to be a resource at that time. Ms.
Swink also reported that she tried to communicate with Father on other occasions and that
she “sent him court reports.”
Hadassah Freed, who replaced Ms. Swink as the Children’s caseworker in August
of 2014, testified that Father was in prison the whole time she was his caseworker, that she
only spoke with him “two or three times,” and that he tried to contact her only one time.
Ms. Freed also testified that she mailed “every service agreement” to Father but never
4
received a signed service agreement in return. When asked about Father’s phone contact
with the Children, Ms. Freed responded that “it wasn’t frequently.”
She also reported that Father informed her that he had family in the United States
and that his mother was “available in Mexico.” She had “phone conversations” with his
family in the United States, and she contacted the International Social Services regarding
his mother. The International Social Services completed a home study with Father’s
mother, which, according to Ms. Freed, had been “favorable.” Ms. Freed left the
Department in April of 2015, before she could follow up on any of these resources.
Following Ms. Freed’s departure, Kimberly McKay was assigned as D.A. and
C.A.’s caseworker. Ms. McKay reported that she made several attempts to reach Father
by phone but was unable to do so. She also sent several service agreements to Father for
him to sign, but Father never sent any back. Ms. McKay also spoke with Father’s mother
about “possibly coming here to the United States . . . to care for the children,” but she was
“denied her visa to the United States.” Ms. McKay stated that she later investigated
Father’s niece in Arizona as a potential resource, but the niece did not take the appropriate
steps to initiate the process of becoming a resource. She also investigated Father’s “cousin”
in California and discovered that he was in the country illegally and without a known
address.
In the meantime, D.A. and C.A.’s foster parents informed the Department that they
could no longer care for the Children. In September of 2015, the Children were moved
into the care of a new foster parent, Melanie R., with whom they now live. Ms. R. testified
that the Children’s adjustment into her home had gone “extremely well,” that they loved
5
school and reading, and that they were involved in numerous activities, including soccer
and Girl Scouts. Ms. R. also testified that the Children regularly attended therapy and that
she had not seen any behavioral problems with the Children since they moved into her
home. She added that the Children had requested that they not be addressed by their birth
names (D.A. goes by “S.” and C.A. goes by “M.”). When asked about long-term plans for
the Children, Ms. R. responded that “they’re going to be adopted by me.”
Regarding the Children’s relationship with Father, Ms. R. testified that the Children
had been speaking with him by phone “less than once a month” but that the conversations
had become more frequent in recent months. When Father and the Children spoke, there
was “a language barrier” because Father spoke to the Children in Spanish, which neither
child can speak fluently. Ms. R. reported that, during one conversation, Father suggested
that he be allowed to live with her and the Children after his release.
After their permanency plans had been changed to adoption, D.A. and C.A.’s case
was transferred to Susan Lonergan, a case manager with the Department’s adoptions unit,
in June of 2016. Ms. Lonergan testified that she conducted in-home visits with Ms. R. and
the Children at least once a month and that she had no concerns about the Children’s care
under Ms. R. She reported that the Children were “always clean” and “always
appropriately dressed” and that they were “happy” and “appear comfortable.” According
to Ms. Lonergan, the Children never expressed an interest in speaking with Father. Ms.
Lonergan also testified that she made frequent attempts to reach Father’s case manager in
prison but that “they never call back.” She also stated that she sent several documents to
Father but that she did not receive any response.
6
Lisa Cammauf, a family support worker with the Department, testified that she had
been assigned D.A. and C.A.’s case in November of 2014 and that she had worked with
them ever since. Ms. Cammauf reported that she had been involved in several “team
decision meetings” in which Father participated by telephone and that she had assisted in
answering questions that he had regarding the Children. During one meeting, she told
Father that his ability to be a resource for the Children was limited because he was in
prison, to which Father responded that “when he gets out, no matter what, [D.A. and C.A.]
are his children” and “he will do everything he can to come back and…get his kids.” Father
reiterated this sentiment at a subsequent meeting in which he again participated by
telephone.
Ida Johnson, a family therapist, testified that she had been treating D.A. and C.A.
since July of 2014. Ms. Johnson reported that the Children had behavior problems when
they first came into her care, including stealing, lying, wetting the bed, and fighting with
their siblings. She attributed the Children’s behavioral issues in part to the instability of
their home life and having to continually adjust to new surroundings.
Regarding D.A. and C.A’s current situation, Ms. Johnson reported that the Children
had adjusted “very well” to life with Ms. R.; that Ms. R. was “very committed” to the
Children’s therapy; and, that Ms. R. and the Children were “very bonded” and “very
affectionate.” She further stated that the Children were “making significant progress
adjusting to their new home” and that they “appear happy and comfortable with their
surroundings.”
7
Father testified by telephone from prison, admitting that he is “an illegal alien” and
that, on at least two occasions, he had entered the United States illegally. 4 According to
Father, it was his last entry into the United States, which occurred in December of 2013,
that resulted in his being incarcerated. He also stated that he would not be released until
July of 2017, at which time he would be deported to Mexico. Father asserted that he was
not to blame for “everything that’s happened” and that he loved his Children and wanted
to do “absolutely everything possible to be with them.” He also claimed that after his
deportation he would “find a way to come back” but that if he could not “God will bless
them anyway.” Father stated that he had not seen D.A. or C.A. since 2012.
As to resources available to him, Father testified that his mother had been willing to
care for the Children but that she had passed away prior to the hearing. He also reported
that he had a cousin in California but that he did not know the cousin’s name. As to the
Department’s efforts in providing services, Father testified that he and the Department had
“had meetings;” that the Department told him that there were papers he needed to sign; that
the Department had sent him letters “all about court hearings, meetings;” and, that the
Department sent him updates on the Children.
At the close of the hearing, the court issued a written order terminating Father’s
parental rights and granting the Department the authority to consent to D.A. and C.A.’s
adoption. In so doing, the court made the following findings:
The Juvenile Court finds after giving primary consideration to the health and
safety of [D.A. and C.A.] and consideration to each of the relevant statutory
factors, it is in the best interests of each minor child…to terminate the
4
Father testified through an interpreter.
8
parental rights of [Father.]… He is not able to provide a safe and healthy
environment for the children. [Father], has been incarcerated in a federal
prison since December 2013, and is due to be deported to Mexico upon his
release in July 2017, nine months from this hearing. He entered the U.S.
illegally resulting in his incarceration. This is his second incarceration for
illegal entry, and this second time he was incarcerated for transporting other
illegal immigrants into the United States. He has not seen his children since
sometime in 2012…. There has been some contact by telephone, once a
week approximately these past few months…. The father has not provided
care for his children in approximately four years.
[D.A. and C.A.] want to remain in the care of their current foster
mother who is an adoptive resource. They have adjusted well to their home
and are in a stable and nurturing environment.
The father is not in any better circumstance than when the children were
placed in foster care in July 2014, 26 months ago, or even 11 months prior to
that date when the mother asked [Mr. R.] to take her five children.
***
The Court finds that pre-placement services were not offered to the father
because he was incarcerated in a federal prison in Louisiana beginning in
December 2013.
***
The Department was able to locate [Father] at the federal prison and
discussed with him by telephone the children’s placement into foster care.
In response to the request of the Department. [Father] provided the names of
paternal relative residing in Mexico and [a] fictive relative, first name only,
in the United States. The Department attempted to contact the relative by
written correspondence, but at least initially, the paternal grandmother was
not able to be a resource.
The Court finds that the extent, timeliness, and nature of the services offered
to [Father] was reasonable given his out of state incarceration during the
entire time the children were in foster care. The father was included by
telephone in two Team Decision Making meetings: May 2015 and in
February 2016…. The Department secured the assistance of interpreters and
translators to ensure meaningful communication with [Father]. The
Department sent written documents, service agreements, letters and court
orders, to [Father] in both English and Spanish.
9
***
Because the father was incarcerated…in federal prisons, not to be released
until July 2017, but to be deported back to Mexico upon his release, any
further attempts at reunification services to him were prohibitive and futile.
This Court finds that the Department has fulfilled its obligations under the
agency service agreements with the parents, but that neither parent met its
obligations in full under the service agreements. The Department attempted
to enter into service agreements with the father, who did not return any
document signed…. Although the father did not return a signed agreement
to the Department, he did contact the Department by phone to confirm receipt
of the first service agreement. The Department discussed with him by
telephone service plans and obligations and court orders. At no time did he
state to the Department that he did not understand what had been sent or
explained to him about his children.
***
The Court finds that the father…is not a resource for his children. He
indicated in a letter to the Department that his plan was to take the children
to Mexico once established there. He also stated in both May 2015 and
February 2016 that he was “going to get” his children, even if it meant his
entering into the United States again illegally.
The Court finds that the Department made reasonable efforts to attempt to
maintain regular contact with the father by phone and mail service…. The
Department made regular attempts to speak with him and his case manager.
The Department attempted to arrange a translation service (“Language
Link”) for the father (who speaks some English but [D.A. and C.A.] have
some difficulty understanding him, and the foster mother does not speak
Spanish) to facilitate communication with the children but the prison would
not permit the service.
Contact between the father and foster mother, while feasible, has been
minimal…. The father has been inappropriate. He asked the foster mother
during one phone call to allow him to live with her when he is released from
prison. She told him no.
The Court finds that the father has not contributed financially to a reasonable
part of the child’s care and support.
10
The Court finds that there has not been any evidence presented that the father
has a disability that renders [him] consistently incapable of caring for the
children’s immediate and ongoing physical and psychological needs for long
periods of time.
This Court finds that additional services would not be likely to bring about a
lasting adjustment so that the children could be returned to the father within
an ascertainable time not to exceed 18 months from the date of placement.
The children have been in care over 26 months. The children have been out
of the care of the father, for over an estimated four years.
***
This Court finds that [D.A. and C.A.] have adjusted to their community,
foster home, and school. The Court further finds that there are no known or
reasonably foreseeable negative feelings demonstrated by the children
regarding the severance of the parent-child relationship and that the likely
impact of the termination of parental rights on each child’s well-being is
positive.
***
Recently, the girls started to call themselves by different names….
[They] made this decision independently. It is apparent that the girls are
comfortable in their environment, that they are well cared for, and that they
have a loving relationship with [Ms. R.]
***
This Juvenile Court further finds in consideration of In re:
Adoption/Guardianship of Rashawn H., 402 Md. 477 (2007) that
continuation of the parental relationship of the father is not in the best
interests of the children…due to exceptional circumstances that exist that
make a continuation of the parental relationship detrimental to the best
interests of the children, [D.A. and C.A.] As discussed infra, the father has
not seen his children in approximately four years due to being incarcerated
for a second illegal entry into the United States and will be deported back to
Mexico in July 2017.
11
STANDARD OF REVIEW
Our review of the juvenile court’s decision to terminate Father’s parental rights
involves three interrelated standards: (1) a clearly erroneous standard, applicable to the
juvenile court’s factual findings; (2) a de novo standard, applicable to the juvenile court’s
legal conclusions; and (3) an abuse of discretion standard, applicable to the juvenile court’s
ultimate decision. In re Yve S., 373 Md. 551, 586 (2003). In other words, “when the
appellate court views the ultimate conclusion of the [juvenile 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.” Davis v.
Davis, 280 Md. 119, 234 (1977). An abuse of discretion occurs when the court’s decision
is “‘well removed from any center mark imagined by the reviewing court and beyond the
fringe of what that court deems minimally acceptable.’” In re Adoption/Guardianship No.
3598, 347 Md. 295, 313 (1997) (quoting North v. North, 102 Md. App. 1, 14 (1994)).
That said, “our function, in reviewing [the juvenile court’s] findings, is not to
determine whether, on the evidence, we might have reached a different conclusion.” In re
Adoption No. 09598 in the Circuit Court for Prince George’s County, 77 Md. App. 511,
518 (1989). “Rather, it is to decide only whether there was sufficient evidence – by a clear
and convincing standard – to support [the court’s] determination that it would be in the best
interest of [the child] to terminate the parental rights of [the parent].” Id. In making that
decision, “we must assume the truth of all the evidence, and of all of the favorable
inferences fairly deducible therefrom, tending to support the factual conclusion of the trial
court.” Id. (citation omitted). And, “in a case involving termination of parental rights, the
12
greatest respect must be accorded the opportunity [the trial court] had to see and hear the
witnesses and to observe their appearance and demeanor.” In re Adoption/Guardianship
Nos. 2152A, 2153A, 2154A in the Circuit Court for Allegany County, 100 Md. App. 262,
270 (1994) (citations and quotations omitted). “Where the best interest of the child is of
primary importance, ‘the trial court’s determination is accorded great deference, unless it
is arbitrary or clearly wrong.’” Id. (citation omitted).
DISCUSSION
Father argues that the circuit court erred in granting the Department’s petition and
terminating his parental rights. This is because “the record fails to establish that retaining
the parental relationship would be detrimental to the children’s best interests.” He also
maintains that “the Department did not do enough to provide him with services during his
incarceration” and that “the services agreements did not meaningfully outline obligations
for [Father] to complete.” Finally, he avers that, although D.A. and C.A. “may have
adjusted well with their pre-adoptive family,” the existence of a bond between the Children
and their foster family “cannot trump the father’s liberty interest in maintaining his parental
relationship” and “cannot be a dispositive consideration when evaluating whether parental
rights should be terminated[.]”
The State counters that the court “properly found that exceptional circumstances
justified a termination of parental rights based on its review of the factors set forth in § 5-
323(d) of the Family Law Article,” which, according to the State, permits a court to
“terminate a parental relationship if the court finds by clear and convincing evidence that
termination is in the child’s best interests.” The State posits that the Children have a right
13
to a stable environment and that the court’s decision “properly promotes the [C]hildren’s
best interests by providing them with a stable and permanent adoptive home which will
meet their emotional and physical needs.”
The right of a parent to raise his child, “recognized by constitutional principles,
common law and statute, is so fundamental that it may not be taken away unless clearly
justified.” In re Adoption Guardianship No. 10941 in the Circuit Court for Montgomery
County, 335 Md. 99, 112 (1994). And, “[w]hen the State initiates a parental rights
termination proceeding, it seeks not merely to infringe that fundamental liberty interest,
but to end it.” Santosky v. Kramer, 455 U.S. 745, 759 (1982). “The consequences of this
drastic and permanent severing of the strongest and basic natural ties and relationships has
led the Legislature and this Court to make sure, as far as possible, that adoption shall not
be granted over parental objection unless that course clearly is justified.” Walker v.
Gardner, 221 Md. 280, 284 (1960).
Nevertheless, the fundamental right of a parent to raise his child “is not absolute and
does not exclude other important considerations.” In re Mark M., 365 Md. 687, 705 (2001).
For instance, “the State of Maryland has an interest in caring for those, such as minors,
who cannot care for themselves.” Id. In addition, our appellate courts have long held that
“the best interests of the child may take precedence over the parent’s liberty interest in the
course of a custody, visitation, or adoption dispute.” Boswell v. Boswell, 352 Md. 204, 219
(1998).
In harmonizing these competing interests, the Court of Appeals has recognized “a
substantive presumption – a presumption of law and fact – that it is in the best interest of
14
children to remain in the care and custody of their parents.” In re Adoption/Guardianship
of Rashawn H., 402 Md. 477, 495 (2007). “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.” In re Adoption/Guardianship of Jasmine D., 217 Md. App. 718, 733 (2014)
(citation omitted).
In short, the presumption that it is in a child’s best interests to remain in the care
and custody of his parent “may be rebutted upon a showing either that the parent is ‘unfit’
or that ‘exceptional circumstances’ exist which would make continued custody with the
parent detrimental to the best interest of the child.” In re Rashawn H., 402 Md. at 495.
Therefore, “in all cases where the interests of a child are in jeopardy the paramount
consideration is what will best promote the child’s welfare, a consideration that is of
‘transcendant importance.’” In re Adoption/Guardianship No. A91-71A, 334 Md. 538, 561
(1994) (citation omitted). In other words, “the controlling factor in adoption and custody
cases is not the natural parent’s interest in raising the child, but rather what best serves the
interest of the child.” In re No. 10941, 335 Md. at 113; see also In re
Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 111 (2010)(“[W]hile the parental rights
are recognized…the child’s best interest standard trumps all other considerations.”)
(footnote omitted).
15
“In determining the child’s best interests, the juvenile court is required to consider
the statutory factors in [Maryland Code, Family Law] FL § 5-323(d).” In re Jasmine D.,
217 Md. App. at 734. Moreover, “[i]n cases where parental rights are terminated, it is
important that each factor be addressed specifically not only to demonstrate that all factors
were considered but also to provide a record for review of this drastic measure.” In re
Adoption/Guardianship No. 87A262, 323 Md. 12, 19-20 (1991). If, based on these factors,
the court finds by clear and convincing evidence that the child’s best interests are served
by a termination of parental rights, the court may terminate said rights. In re Jasmine D.,
217 Md. App. at 734. As the Court of Appeals has explained:
The court’s role in TPR cases is to give the most careful consideration
to the relevant statutory factors, to make specific findings based on the
evidence with respect to each of them, and, mindful of the presumption
favoring a continuation of the parental relationship, determine expressly
whether those findings suffice either to show an unfitness on the part of the
parent to remain in a parental relationship with the child or to constitute an
exceptional circumstance that would make a continuation of the parental
relationship detrimental to the best interest of the child, and, if so, how. If
the court does that – articulates its conclusion as to the best interest of the
child in that manner – the parental rights we have recognized and the
statutory basis for terminating those rights are in proper and harmonious
balance.
In re Rashawn H., 402 Md. at 501 (footnote and emphasis omitted).
The primary statutory factor the court must consider before terminating parental
rights is “the health and safety of the child[.]” FL § 5-323(d). The other factors the court
must consider are, in relevant part: (1) the nature and timeliness of the services offered by
the Department to the parent; (2) the extent to which the parent has fulfilled his obligations
under a social service agreement; (3) the parent’s efforts in adjusting his circumstances,
16
condition, or conduct to make it in the child’s best interest to be returned to the parent’s
care; (4) the extent to which the parent has maintained regular contact with the child, the
child’s caregiver, and the Department; (5) the parent’s financial contributions to the child’s
well-being; (6) whether additional services would likely bring about a lasting parental
adjustment so that the child could be returned to the parent within a reasonable time not to
exceed 18 months from the date of placement unless the court finds that it would be in the
child’s best interests to extend the time period; (7) whether the parent has abused or
neglected the child or another minor and the seriousness of the abuse or neglect; (8) the
child’s emotional ties with and feelings toward the parent and others who may affect the
child’s best interests; (9) the child’s adjustment to community, home, placement, and
school; and (10) the child’s feelings about severing the parent-child relationship and the
likely impact this severance would have on the child’s well-being. Id.
In addition to being mandatory considerations prior to a termination of parental
rights, the factors outlined in FL § 5-323 also serve “as criteria for determining the kinds
of exceptional circumstances that would suffice to rebut the presumption favoring a
continued parental relationship and justify termination of that relationship.” In re Rashawn
H., 402 Md. at 499. Other criteria relevant to an exceptional circumstances determination
include: the length of time that the child has been with his adoptive parents; the strength of
the bond between the child and the adoptive parent; the relative stability of the child’s
future with the parent; the age of the child at placement; the emotional effect of the adoption
on the child; the effect on the child’s stability of maintaining the parental relationship;
whether the parent abandoned or failed to support or visit with the child; and, the behavior
17
and character of the parent, including the parent’s stability with regard to employment,
housing, and compliance with the law. In re No. A91-71A, 334 Md. at 562-64.
Viewing the court’s decision in light of the above legal principles, we hold that the
juvenile court in the instant case did not err or abuse its discretion in terminating Father’s
parental rights. We are persuaded that the presumption favoring a continued parental
relationship between Father and the Children was rebutted by clear and convincing
evidence in the record.
Father resided in the United States illegally around the time D.A. and C.A. were
born and was ultimately deported in 2010 following a domestic violence incident involving
the Children’s Mother. Rather than adjust his circumstances and make legal efforts to
obtain entry into the United States, Father, by his own admission, made another illegal
entry into the United States in 2013, this time bringing other individuals with him. That
resulted in his arrest and eventual incarceration in federal prison, where he remained
through the date of the hearing on October 11, 2016.
Thus, for the vast majority of the Children’s lives, Father made little to no effort in
adjusting his circumstances to make the Children’s living situation better or become more
involved in the Children’s lives. Although his incarceration made such adjustments
difficult, that incarceration did not commence until December of 2013, which was at least
a year after he last saw the Children. During that time, the Children were subjected to
unacceptable living conditions, neglect, and possible sexual abuse while in the care of their
Mother. Father, according to the evidence, did nothing to remedy that situation. In fact,
18
other than Father’s claim that he last saw the Children in 2012, there is little indication that
he was even involved in the Children’s lives at any time prior to his incarceration.
Father maintained minimal contact with the Children during his incarceration, and
any sort of parental bond was virtually non-existent at the time of the hearing. Not
surprisingly, the Children expressed no real desire to speak with him or maintain the
relationship. Other than Father’s insistence that he “loved” the Children, there was no
indication of any meaningful bond with the Children. On the other hand, the Children had
developed a strong bond with their foster mother, Melanie R., with whom they had lived
for over a year. The Children were adjusting extremely well in her care, were safe and
healthy, and were excited about the prospect of being adopted. While in Ms. R.’s care, the
Children did well in school, took part in activities, and participated in therapy, which their
therapist indicated was progressing well.
Father argues that the record fails to establish how retaining the parent-child
relationship would be detrimental to the Children’s best interests. We disagree. Not only
did he show a consistent disregard for the law and a general inability and/or unwillingness
to provide a safe and stable environment for the Children prior to his incarceration, he also
showed a general lack of regard for the Children’s best interest during their time in foster
care. He stated several times that “no matter what” he was “going to get” the Children,
despite the fact that he had no legal right to do so, and he even expressed a desire to live
with Ms. R. and the Children following his release from prison, even though neither Ms.
19
R. nor the Children suggested that such an arrangement was feasible or desirable.5 Father
also suggested that the Children could live with his “cousin” in California, even though he
did not know the cousin’s name or present any indication that this “cousin” was capable of
caring for the Children.
At the time of the hearing, Father was incarcerated and would not be released until
July of 2017, nine months after the hearing and almost three years after the Children’s date
of placement. Moreover, Father was to be deported following his release, and there was
no indication as to when or whether he would be able to come back to the United States to
care for the Children. Despite his insistence that he planned to reenter the United States
legally, Father offered no explanation for how he would manage to do so. In fact, Father
admitted that he might not be able to come back into the country at all.
Father has taken no discernable steps toward ensuring that he would become more
active in the Children’s lives or how he planned to care for the Children following his
release from prison and eventual deportation. Father offered no feasible resources
available to him in the United States, no explanation of what he would do upon his release
or how he would manage to reenter the United States, and no evidence that he was capable
5
Appellant argues that the court “clearly erred when it found that [appellant] acted
inappropriately when he asked the foster mother if he could come live with her after he
reenters the United States[.]” We disagree, as such a suggestion, under the circumstances,
was clearly inappropriate. See www.merriam-webster.com/dictionary/inappropriate
(defining “inappropriate” as “not right or suited for some purpose or situation”).
20
of even sustaining a relationship with the Children, much less providing them with a safe
and healthy environment.6
Meanwhile, both D.A. and C.A. expressed an eagerness to move on with their lives.
And, after having been subjected to substandard living conditions for three years and then
shuttled through the foster-care system for the next two, the Children were finally living in
a stable, supportive, and healthy home with someone who is qualified and willing to adopt
them. Clearly, any impediment to the Children’s relationship with Ms. R., including
maintaining a parent-child relationship between the Children and Father, would be
detrimental to the Children’s best interest. Conversely, severing what little relationship the
Children and Father have will likely have no negative impact on the Children.
Father argues that, although the Children may have adjusted well to life with Ms.
R., that fact cannot trump his liberty interest in maintaining his parental relationship with
the Children. He also argues that the length of time they were out of his care cannot be
treated as dispositive. While we agree, generally, with those statements, Father has
conflated the issues and misrepresented the court’s determination. The court did not
terminate Father’s parental rights based solely on the Children’s relationship with Ms. R.
or the amount of time they were in foster care. Rather, these were but two of many factors
that the court considered in determining that it was in the Children’s best interests to
terminate their relationship with Father. And, as previously stated, a child’s best interests
6
Father’s deportation status in this case is one factor in the best interests’ analysis
because it impacts his ability to care for the Children and to provide them with a safe and
healthy environment now or in the foreseeable future. But deportation of an undocumented
parent in and of itself is not a basis for termination of parental rights of otherwise fit parents.
21
do trump the parent’s liberty interest in maintaining his relationship with a child. For these
reasons, Father’s reliance on In re James G., 178 Md. App. 543, 603-04 (2008)(holding
that the court’s changing of a child’s permanency plan was erroneous because the court
failed to address the child’s best interest while giving “paramount consideration” to the
length of time the child was out of the parent’s care); Washington County Dept. of Soc.
Serv. v. Clark, 296 Md. 190, 197 (1983)(finding unconstitutional a Maryland statute that
created a legal presumption that termination is in the best interest of the child when the
child had been in foster care for two or more continuous years); and, In re
Adoption/Guardianship of Alonza D., Jr., 412 Md. 442, 468 (2010)(holding that the court’s
termination of parental rights was erroneous because “the judge focused primarily on the
length of time [the children] had been in foster care and the apparent bond that had
developed between [the foster parent] and the children” while at the same time failing to
show “how a continued parental relationship would have caused a detriment to the
children[.]”) is misplaced.
Father also contends that the Department “did not do enough to provide him with
services during his incarceration” and that “the services agreements did not meaningfully
outline obligations for [him] to complete.” Again, we disagree. As the court explained,
pre-placement services were not offered to Father because he was incarcerated. When the
Department spoke with Father about possible relative resources, he provided several
names, all of which were investigated and ruled out by the Department.7 Moreover, any
7
Although appellant’s mother was ultimately identified as a potential resource, she
died before the hearing.
22
provision of services toward reunification would have been futile given that Father was
incarcerated the entire time the children were in foster care. Nevertheless, the Department
still provided the following services: including Father, via telephone, in certain meetings;
securing the assistance of interpreters and translators; sending written documents, service
agreements, letters, and court orders to Father in both English and Spanish; discussing
service plans and court orders with Father; maintaining contact with Father by phone and
mail service; and, making regular attempts to speak with Father and his case manager. The
fact remains that no amount of services would have alleviated the primary obstacle to
Father’s ability to care for the children, namely, his incarceration and impending
deportation. Under these circumstances, we are not persuaded that the juvenile court’s
determination that the Department’s provision of services was reasonable was clearly
erroneous.
Finally, Father avers that the evidence showed only that he could not take custody
of the Children immediately, which he claims did not “have a direct bearing on whether
the parental relationship should remain intact.” On this point, In re Adoption/Guardianship
No. J970013, 128 Md. App. 242 (1999) is instructive. There, the appellant, James L.,
fathered a child in 1991 while in prison. Id. at 245. At the time of the child’s birth, James
was serving a sentence of twenty years to life for first-degree murder. Id. at 246. In 1997,
the Department of Social Services filed a petition to terminate James’ parental rights, and
a hearing on the petition was held in 1998. Id. at 246-47. The juvenile court ultimately
ordered James’ parental rights terminated because of his incarceration. Id. The court noted
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that, while James was “coming up for” parole in “a couple of years,” it was possible “that
he could be in jail for the rest of his natural life.” Id. at 249.
On appeal, James argued that the court erred in terminating his parental rights based
on his incarceration.8 Id. at 245. We disagreed, explaining that “[g]iven the appropriate
set of factual circumstances…incarceration may indeed, under the facts of a particular case,
be a critical factor in permitting the termination of parental rights, because the incarcerated
parent cannot provide for the long-term care of the child.” Id. at 252. Applying this
principle to the facts of that case, we held that the juvenile court “was acting in the best
interests of [the child] in terminating the parental rights of [James].” Id. at 253. We
reasoned that such a finding was not clearly erroneous because, had James’ parental rights
remained intact, the child’s status would be “placed in suspended animation until 2001 or
even beyond waiting for [James’] potential for parole to be realized, an occurrence that the
trial court noted may never come to be.” Id. at 253.
This case presents a similar situation. Despite Father’s claims that he planned to
legally come back to the United States following his deportation, he recognized that his
reentry may never happen. Therefore, not only was he unable to take care of the Children
immediately, or even in the immediate future, there exists the very real possibility that he
may never be able to enter the United States legally. This distinct possibility is made even
8
Specifically, James claimed that the juvenile court erred “in finding that [his]
incarceration was tantamount to a disability thus rendering him incapable of providing
adequate care for his son[.]” In re No. J970013, 128 Md. App. at 245. Although we agreed
that the incarceration of a parent does not necessarily constitute a disability, we found no
support for James’ claim in the record. Id. at 252.
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more probable in light of the fact that Father made no known efforts at securing legal entry
in the years between the Children’s birth and his incarceration in 2013. As was the case in
In re No. J970013, maintaining Father’s parental rights under these circumstances would
have placed the Children’s status in a state of suspended animation until a future date that
may never occur. We cannot say, therefore, that the trial court was clearly erroneous or
abused its discretion in finding that terminating Father’s parental rights was in the
Children’s best interest. See In re No. 10941, 335 Md. at 106(discussing Title 5 of the
Family Law Article as being based on the premise “that it is in a child’s best interest to be
placed in a permanent home and to spend as little time as possible in foster care.”).
JUDGMENT OF THE CIRCUIT
COURT FOR ANNE ARUNDEL
COUNTY AFFIRMED. COSTS TO
BE PAID BY APPELLANT.
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