In re: Adoption/G'ship of L.B. and I.L.

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2816
September Term, 2015
______________________________________
IN RE: ADOPTION/GUARDIANSHIP OF
L.B. AND I.L.
______________________________________
Graeff,
Friedman,
Eyler, James R.
(Retired, Specially Assigned),
JJ.
______________________________________
Opinion by Graeff, J.
______________________________________
Filed: September 1, 2016
K.H., appellant, challenges an order issued by the Circuit Court for Harford County
terminating her parental rights (“TPR”) to her two sons, L.B. and I.L.1 Ms. H. presents
three questions for our review:
1. Where the mother had another child in her custody, did the court err
by terminating parental rights, where the court failed to make and
articulate a finding about parental unfitness or exceptional
circumstances prior to determining what was in the subject children’s
best interests?
2. Did the court err by failing to place the children in the care of relatives
rather than granting guardianship to the Department of Social
Services?
3. Did the court err in terminating parental rights where the mother had
remedied the problems leading to the removal of her children from
her care, and the problems were typical not exceptional?
For the reasons set forth below, we shall affirm judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Initiation of the Department of Social Services’ Interest in L.B.
The Harford County Department of Social Services (“DSS” or the “Department”),
an appellee, took interest in L.B. at the time of his birth, when it received information that
Ms. H. was using Percocet during her pregnancy. That allegation of neglect ultimately was
ruled “unsubstantiated” by DSS, but due to concerns about Ms. H.’s mental health and
substance abuse, a DSS caseworker instituted a “Safety Plan,” which required that Ms. H.
1
L.B. was born in February 2011, and I.L. was born in September 2013. The
children’s fathers did not appeal and are not part of these proceedings.
not be left alone with her children.2 DSS subsequently transferred the case to the
Continuing Services department so further services could be provided to the family.
In March 2011, Bethany Fisher, a DSS Child Protective Services caseworker
assigned to L.B.’s case, had L.B.’s parents sign a new Safety Plan. Ms. Fisher was
concerned about Ms. H.’s mental health because Ms. H. was diagnosed with bipolar
disorder, but she was not receiving treatment or taking her medication. Ms. Fisher also
was concerned about Ms. H.’s “continuing use of drugs.” Accordingly, the terms of the
March 24, 2011, Safety Plan required that Ms. H. continue her mental health treatment and
submit to substance abuse evaluation and urinalysis.
Ms. H. partially complied with the March 2011 Safety Plan. She “did get back into
mental health treatment,” but “she was not consistent[ly] going to her counseling sessions.”
Ms. H. completed substance abuse evaluation, and she submitted to random urinalysis.
Ms. Fisher referred Ms. H. to various providers of mental health services, substance abuse
services, infant and toddler resources, housing resources, and food assistance, but Ms. H.
only “complied with some of them.”
In April 2011, Ms. Fisher implemented a “Service Plan,” which “identifie[d] the
tasks [DSS was] asking the family to do long term.” The terms of the April 2011 Service
Plan were similar to those of the March 2011 Safety Plan. As before, Ms. H. only partially
complied with the plan.
2
A Safety Plan is put in place when there are safety concerns in the home.
-2-
By June 9, 2011, Ms. H. was “making progress,” so she and Ms. Fisher executed a
new Safety Plan that permitted Ms. H. to be alone with her children. In June 2011, DSS
received a new report indicating that Ms. H. was not properly supervising her older child,
S.M.3 Accordingly, Ms. Fisher updated the Safety Plan to require that Ms. H.
“appropriately supervise the children at all times.”
At some point between August and September 2011, Ms. H. and her children were
evicted from their home. Ms. H. stayed with friends and family until she could find
permanent housing. During that period of time, there were some “domestic violence issues
going on,” and in August 2011, Ms. H. filed for a protective order against L.B.’s father,
Mr. B.
DSS Places L.B. in Foster Care
On October 3, 2011, Ms. Fisher contacted Ms. H.’s mother, J.H., who informed her
that, on the previous evening, Ms. H. and Mr. B. had come to her apartment in an
intoxicated state. Ms. Fisher subsequently had difficulty contacting Ms. H. When she
called on October 6, 2011, Mr. B. answered Ms. H.’s phone, even though there was an
active protective order prohibiting him from being in contact with Ms. H. Ms. Fisher went
to Mr. B.’s mother’s house and found L.B., who was “very dirty” and had “red bumps or a
rash on his forehead.” Ms. H.’s family told Ms. Fisher that Ms. H. had “shown up” the
night before with a bottle of alcohol in her purse, and she appeared to be intoxicated.
3
S.M. was not a subject of the TPR proceedings below.
-3-
Ms. Fisher then “issued shelter care papers,” removed L.B. from Ms. H.’s care, and placed
him in foster care.4 She later testified that L.B. was removed because Ms. H. “was not
being compliant with her mental health treatment. There were numerous concerns being
reported to the department about her alcohol abuse. The family did not have stable housing.
[And L.B.] had not been taken to the pediatrician in several months.”
L.B.’s foster parent later testified that, when L.B. was first placed with her, he was
behind on his immunizations, was experiencing difficulty sleeping, and had a red rash on
his face and a staph infection “around his diaper area.” She testified that her experience
with Ms. H. had been unpleasant and confrontational. At one point, she filed for a Peace
Order after Ms. H. posted “threatening remarks” on Facebook.
On October 7, 2011, Ms. Fisher petitioned the circuit court to designate L.B. a Child
in Need of Assistance (“CINA”).5 On October 26, 2011, the court found that DSS’s
allegations were substantiated and designated L.B. a CINA.
At some point after L.B. was placed in foster care, Ms. H.’s mother, J.H., offered to
be “a resource” for him. Ms. Fisher conducted a “home study,” but she did not approve
4
On that same date, October 6, 2011, the DSS caseworker also implemented a
Safety Plan with Ms. H.’s mother, placing Ms. H.’s older child, S.M., into her care. S.M.’s
case was closed in February 2012 with the understanding that Ms. H. and her mother would
have joint custody of him, and he would continue to live with his grandmother.
5
A “child in need of assistance” (“CINA”) is one who requires court intervention
because the child has been abused or neglected, or has a developmental disability or mental
disorder; and his or her “parents/guardian, or custodian are either unable or unwilling to
give proper care and attention to the child and the child’s needs.” Md. Code (2015 Supp.)
§ 3-801(f) of the Courts and Judicial Proceedings Article.
-4-
her request to care for L.B. because J.H. was already caring for Ms. H.’s other child, and
Ms. Fisher was concerned about J.H.’s ability to care for both at the same time. Another
DSS worker who participated in the evaluation testified that they had further concerns that
J.H. had mental health issues of her own, that she tried to cover up Ms. H.’s mental health
issues, and she was not “going to be able to work with the department and be honest about
the relationship that she had with [Ms. H].”
Ms. Fisher continued working with Ms. H. after L.B. was removed from her care.
Although Ms. H. attended weekly visits with L.B., Ms. Fisher noted that Ms. H. “was not
making very much progress regarding her housing situation” or “doing very much
regarding trying to get things together for [L.B.] to be able to come back home to her.”
Ms. H. submitted to random urinalysis and tested negative each time, but she failed to
attend her mental health sessions.
On October 7, 2011, Ms. Fisher transferred L.B.’s case to Renee Little in the DSS
foster care in-take unit.6 Ms. Little supervised biweekly visits, noting that, “for the most
part,” Ms. H. was attentive and appropriate around L.B.
In November 2011, Ms. H. obtained Section 8 housing with the assistance of DSS.
DSS conducted a home inspection and deemed the home appropriate for L.B.
6
Directly after children are removed from a home by the Harford County DSS, their
cases typically are assigned to a foster care in-take worker for approximately two to four
months. It is the in-take worker’s role to “get everything . . . set up and managed.” If the
child remains in foster care beyond that time, the case is then transferred to a foster care
continuing worker for long-term management.
-5-
On November 15, 2011, a psychologist conducted a psychological evaluation of
Ms. H. The psychologist testified that Ms. H. was a particularly difficult client to
interview, and he had concerns about her credibility. He diagnosed Ms. H. “as having
Bipolar One Disorder,” although he noted this diagnosis was “tentative” because she
denied “any history of symptoms that would be consistent.” He also diagnosed Ms. H. as
having “poly substance abuse” and “a personality disorder with histrionic and anti-social
features.” The psychologist testified that he was concerned that, “without treatment, her
prognosis was very poor.”
On December 6, 2011, Ms. H. signed a Service Agreement requiring that she
maintain stable and safe housing, secure employment, submit to random urinalysis, and
submit to psychological evaluation and mental health counseling. Ms. H.’s compliance
was tenuous at first, but it subsequently improved. At the time Ms. Little received L.B.’s
case, Ms. H. was receiving mental health treatment from “Alliance,” but in December
2011, Ms. H. was “discharged” from the facility “due to non compliance.” 7 Ms. H. then
unsuccessfully sought treatment from “Upper Bay,” who she claimed did not return her
phone calls. On January 4, 2012, Ms. H. began receiving treatment from “Community
Behavioral Services,” and she was “actively participating in counseling” during the time
Ms. Little had the case. Both Ms. H. and L.B.’s father completed a seven-week parenting
7
Renee Little testified that DSS provided transportation to Ms. H. as long as she
timely requested it. Even if the request came late, DSS would “try to accommodate” her,
and therefore, if Ms. H. “missed an appointment, it wasn’t because [DSS] didn’t help her
get there.”
-6-
skills course. Ms. H. “participated sporadically with Alpha’s Glory to get some additional
support.” She also submitted to random urinalysis as required.
By February 2012, Ms. H.’s compliance had improved to the extent that DSS held
a Family Involvement Meeting “to talk about reunification.” At that point, DSS increased
Ms. H.’s visitation with L.B., the visits became extended and unsupervised, and DSS
moved the visit location to J.H.’s residence.
In February 2012, L.B.’s case was transferred to Caitlin Salmon who, at the time,
was a foster care continuing worker. During her time with L.B.’s case, Ms. Salmon
facilitated visits with L.B. Beginning on March 20, 2012, Ms. H. began to have overnight
visits with L.B.
Ms. Salmon testified that, for the most part, “things were going pretty well.” Ms. H.
was “pretty consistent” and always tested negative when asked to do urinalysis. There
were, however, some incidents that concerned Ms. Salmon. L.B.’s foster parents reported
that L.B. was “extremely lethargic” when he returned from his first overnight visit.
On April 23, 2012, Mr. B. told Ms. Salmon that he had gotten into a physical
altercation with Ms. H., which prompted Ms. H. to file for a Peace Order against him. At
the Peace Order hearing, J.H. told Ms. Salmon about “lots of allegations against” Mr. B.,
including allegations of sexual abuse, which led Ms. Salmon to question whether it was
-7-
appropriate for L.B. to be around Mr. B.8 For a short period of time following each of
these incidents, Ms. Salmon limited visitation with L.B. to unsupervised day visits before
eventually reinstating overnight visits.
L.B.’s Brief Reunification with Ms. H.
At some point between the end of April and the beginning of May 2012, Ms. Salmon
transferred L.B.’s case to the “Families Now” unit, a nine-month “intensive program for
children placed out of home either in foster care or kinship care,” which was supervised by
Maureen McKinley at DSS.9 On or about June 1, 2012, L.B. was returned to Ms. H.’s care.
The Families Now unit “continued to monitor the placement,” and it provided
numerous services to Ms. H., including financial assistance with cable, electricity, phone,
groceries, daycare, and transportation expenses, as well as paying for out-patient drug and
alcohol treatment. During the first two months of L.B.’s reunification with his mother,
Ms. McKinley experienced difficulty monitoring his well-being because Ms. H. frequently
was unavailable for visits, and she refused to provide documentation with respect to the
services she was supposed to be receiving, particularly mental health and substance abuse
treatment. On June 27, 2012, DSS held another Family Involvement Meeting, during
which it was decided that L.B. would remain with Ms. H.
8
Caitlin Salmon testified that Protective Services investigated the allegations
against Mr. B., but it ultimately determined that there was insufficient evidence to
substantiate the claims.
9
The Families Now unit has since been discontinued in Harford County.
-8-
On August 27, 2012, L.B. again was removed from Ms. H.’s care and put back into
foster care. The decision to remove L.B. from Ms. H. was based on a combination of
issues, including a police report indicating that Ms. H. and her mother got into a physical
altercation, as well as Ms. H.’s continuing failure to make herself available to DSS workers
and provide documentation that she was receiving mental health treatment.
On October 22, 2012, Ms. McKinley created a new Service Agreement, but Ms. H.
would not sign it. At some point in the fall of 2012, Ms. H. began receiving substance
abuse treatment from the Turning Corners program. She subsequently was discharged for
failure to comply with the program.
L.B.’s Brief Placement with Family
On September 14, 2012, L.B. was placed in the care of Ms. H.’s brother, S.H.(H),
and his wife, S.H.(W).10 S.H.(W) set up a weekly visitation schedule for Ms. H. to visit
L.B. For the first three weeks, Ms. H. “showed up on a regular basis.” After that initial
period, however, Ms. H. frequently would schedule a visit but then fail to show, without
explanation. During the visits that Ms. H. did attend, she often would spend a
disproportionate amount of the time questioning S.H.(W) regarding why she could not have
unsupervised visits with L.B. and trying to convince S.H.(W) that she could be left alone
with L.B., leaving little time actually spent with her son. Ms. H. grew “increasingly
irritable over the situation.”
10
Because Ms. H.’s brother and sister-in-law share the same initials, S.H., we will
distinguish them as husband (H) and wife (W).
-9-
In January 2013, S.H.(W) received a phone call from J.H. informing her that Ms. H.
had been hospitalized after “walking down the street and [saying] there were demons
coming after her.” Ms. H. later told S.H.(W) that her hospitalization was precipitated by a
drug overdose and “cotton fever.”11 While Ms. H. was in the hospital, she became aware
that she was pregnant with I.L.
After approximately five months of caring for L.B., the S.H.’s decided that they
could no longer care for him, in part because of the “friction” and “family conflict”
involving Ms. H.’s mother. S.H.(W) testified that they received “constant phone calls[,]
harassment and . . . threats” from Ms. H. and J.H. Ms. H. remained at odds with S.H.(W)
because “she was not willing to bend the rules.” Ms. H. would curse at S.H.(W), call her
names, and threaten to beat her up. S.H.(W) also testified that Ms. H. and her mother
would “randomly show up at [their] house and start[] arguments . . . in front of [their]
children.”
Recognizing that their current situation was unsustainable, both financially and with
respect to the continual harassment, S.H.(H) reached out to L.B.’s maternal grandfather,
D.H., for help. D.H. responded: “That’s your sister and that’s your nephew, it’s not my
problem.”
11
Ms. H. testified that her hospitalization was not because of a drug overdose, but
rather, because she received an infection in her blood from drug use, and her condition was
worsened by an allergic reaction to medication that she took at the hospital.
-10-
S.H.(H) testified that S.H.(W) “freaked out” when a DSS worker suggested, around
the time of Ms. H.’s January hospitalization, that they may need to adopt L.B. if he was to
remain with them. On February 26, 2013, another Family Involvement Meeting was held,
and L.B. was transitioned back to his foster family.12
At the February 2013 meeting, D.H., indicated that he and his wife were interested
in caring for L.B. DSS subsequently conducted a home study, but D.H. and his wife were
not approved because Ms. McKinley had several concerns about their suitability. First,
they failed to provide certain information to DSS in a timely manner, including three
referral references. Second, Ms. McKinley was concerned that they would simply give
L.B. back to Ms. H. after receiving custody of him or, due to D.H.’s “contentious
relationship” with his daughter, fail to follow DSS instructions with respect to permitting
or denying visitation with L.B. Finally, Ms. McKinley took into account that L.B. was
spending a significant amount of time with his foster parents, whereas D.H. had not
requested to visit L.B. at all during that time.
On April 10, 2013, the circuit court changed L.B.’s permanency plan to adoption.
In July 2013, L.B.’s case was transferred to Melissa Wetters in the DSS Home Services
unit. Ms. Wetters testified that L.B. remained in foster care because Ms. H. continued to
have unaddressed substance abuse and mental health issues, and she “had not progressed
in her previous service agreements.”
12
S.H.(H) and S.H.(W) subsequently separated. S.H.(H) indicated a desire to care
for the children, although he was not sure if there was room in his new home.
-11-
From July to October 2013, Ms. H. regularly attended visits with L.B., which were
facilitated by Ms. Wetters, but she “spent most of the visits venting” to Ms. Wetters. On
July 25, 2013, Ms. Wetters presented a new Service Agreement to Ms. H. Ms. H. refused
to sign the agreement, and instead, she directed Ms. Wetters to her attorney. Ms. Wetters
testified that, although she “talked with [Ms. H.] extensively about mental health
treatment,” Ms. H. “refused to engage with that.” Ms. Wetters also talked with Ms. H.
“about anger management evaluation and classes, which was a previous term on her
Service Agreement, and [Ms. H.] indicated that she had previously completed that, and she
was going to [provide] documentation, but she did not.”
Initiation of the Department of Social Services’ Interest in I.L.
The Harford County Department of Social Services initially took interest in I.L. on
September 18, 2013, when the department received a referral that both Ms. H. and I.L.
tested positive for cocaine and opiates at the time of I.L.’s birth, and Ms. H. admitted to
using heroin on the day of delivery. On September 20, 2013, Pamela Abramson, a DSS
Child Protective Services Investigator, visited the hospital where I.L. was delivered and
was informed by hospital staff that I.L. was exhibiting signs of withdrawal and needed
medication, but Ms. H. was withholding consent. Ms. Abramson issued “shelter papers,”
and I.L. subsequently was placed in foster care.
Shortly after I.L. was born, Ms. H. began to use heroin and cocaine regularly. She
failed to attend an intake for a substance abuse evaluation.
-12-
On October 10, 2013, a Family Involvement Meeting was held to discuss I.L.’s
situation. Ms. Abramson testified that, during the meeting, Ms. H. and I.L.’s father became
angry and “stormed out of the meeting.” Around that time, DSS evaluated family members
as potential resources for I.L. Ms. Abramson testified that Ms. H.’s father, D.H.,
approached her, but he “stated he did not want to be a resource at that time.” DSS also
investigated Ms. H.’s mother, J.H, but it concluded that she would not be a suitable
resource. DSS was concerned about her mental health issues, she already was caring for a
severely disabled child, and she “enable[d]” Ms. H. and had a “strained relationship” with
her.
On October 23, 2013, the court designated I.L. a CINA. The court ordered that I.L.
be placed into foster care and that the “primary Permanency Plan” be “reunification.”
DSS Attempts to Reunify I.L. with Ms. H.
From October 2013 to May 2014, the department’s goal was to get I.L.’s parents
stable by addressing their substance abuse, mental health, and housing issues. During those
months Ms. H. received some substance abuse treatment, but her mental health issues
remained unaddressed and her housing situation unstable.
In March 2014, Ms. Little created a new Service Agreement, which Ms. H. signed.
Ms. H. was “minimally” compliant with the terms of the Agreement. Although Ms. H.
began to address her substance abuse problem, she did not complete psychological
evaluation, seek mental health treatment, obtain steady housing and employment, or
complete programs for anger management and parenting skills.
-13-
In May 2014, I.L.’s case was transferred to Noel Francis, a DSS adoption worker.
Ms. Francis referred Ms. H. for substance abuse treatment and arranged for her to receive
an updated psychological evaluation. Ms. H. refused to see DSS’s psychologist, however,
stating that she and her attorney would have an evaluation done by another evaluator.
Ms. H. never provided any documentation to Ms. Francis indicating that she completed a
psychological evaluation.
On October 6, 2014, Ms. H. gave birth to her daughter I.H.L.13 Like her two brothers
before her, I.H.L. was born with drugs in her system and suffered from withdrawal
symptoms.
From August to November 2014, Ms. H. was permitted to have regular unsupervised
visits with I.L. Ms. Francis testified that DSS switched Ms. H.’s visits to unsupervised
because Ms. H.’s behavior with I.L. had “always been very appropriate” up to that point,
and she was reassured by the fact that Ms. H. was, at that time, in the Dayspring program,
“which was a supervised facility,” and Ms. Francis “had a lot of contact with the staff”
there.
I.L.’s Permanency Plan Changes to Adoption
Around the end of November 2014, Ms. H. began to “express[] a lot of frustration
with the Dayspring program,” culminating in her going “AWOL from the program.”
Ms. H. was absent from the Dayspring program during the “whole week of Thanksgiving.”
In December 2014, Ms. H. returned to Dayspring, whereupon she was terminated from the
13
I.H.L. is not a party to these proceedings.
-14-
program for noncompliance, although she was permitted to reside at their facility until the
end of the month.
Ms. H.’s behavior subsequently became very erratic. On December 10, 2014, a
Dayspring employee told Ms. Francis that Ms. H. had broken an oven door, thrown things
out of a window, and barricaded herself inside her apartment. The employee also told
Ms. Francis that Ms. H. was “not being compliant with mental health treatment,” was “not
taking any psychiatric medication,” and they suspected she was not taking her substance
abuse medication appropriately.
In December 2014, S.H.(H), Ms. H.’s brother, approached Ms. Francis and
conveyed his interest in becoming a placement resource for I.L. Ms. Francis testified that,
although S.H.(H) completed the required training, he was “very clearly aware that [a] home
study needed to be completed by Harford County, and a letter was sent to him to that
effect,” but he never followed through with the home study and never contacted
Ms. Francis about it despite having her personal cell phone number.14
14
At trial, S.H.(H) acknowledged that, at a Family Involvement Meeting held on
January 6, 2015, he agreed to complete a home study within 180 days, but instead of having
the Harford County DSS complete the study, he “was asking Baltimore County to do it,”
because he was “leery of some of the people” at the Harford County DSS. S.H.(H) testified
that he expected that the home study would be scheduled sometime after he completed his
class, and he waited for that to occur, but “nothing happened.” He stated that he left a
message with DSS in March 2015, indicating that he had completed his class, but that was
the last time he had contact with the Department.
-15-
In January 2015, Ms. Francis suspended Ms. H.’s visitation with I.L. She testified
that Ms. H. had cancelled “pretty much the whole month of January.” Ms. H.’s
cancellations gave Ms. Francis cause for concern, particularly one occasion where Ms. H.
called to cancel a visit, claiming that she had no transportation. When Ms. Francis offered
to send a cab, Ms. H. responded: “No, I don’t have a babysitter, and I’m moving out of the
state.”15
In January 2015, the court changed I.L.’s permanency plan to adoption. In April
2015, Ms. Francis referred Ms. H. to the Recovery Court Program, but Ms. H. did not
follow through with the referral.
In the months leading up to the TPR proceedings, Ms. H. became hostile toward
Ms. Francis, sending her threatening text messages, including one claiming that she was
going to have Ms. Francis charged with kidnapping and another stating: “You’re going to
pay the price one day.”
Procedural History
On July 16, 2013, DSS filed a Petition for Guardianship over L.B. On May 29,
2014, Ms. H. consented to the termination of her parental rights to L.B., and the juvenile
court entered a guardianship order on the same date. Ms. H. then appealed, arguing that
Ms. H.’s consent to terminate her parental rights was defective. On December 18, 2014,
this Court remanded the case for further proceedings.
15
At that time, Ms. H. retained custody of her daughter, I.H.L.
-16-
On January 9, 2015, DSS filed a Petition for Guardianship over I.L. Between
August 2015 and February 2016, the circuit court held consolidated hearings.
TPR Proceedings Testimony
At the consolidated TPR hearings, in addition to the testimony discussed supra,
Ms. Francis testified about her lingering concerns regarding Ms. H.’s fitness to parent. She
noted that Ms. H. “never had any stable housing” or employment, had “not complied with
any of the service agreements,” had not been in substance abuse treatment since December
2014, refused to undergo psychological evaluation or obtain mental health treatment, and
minimalized I.L.’s developmental problems. Ms. Francis did state, however, that all of
Ms. H.’s urinalysis screenings had been negative.
In support of her case, Ms. H. called addictions specialist Dr. Toyin Opesanmi, who
was treating her drug addiction at the time. Dr. Opesanmi testified that she provided post-
detox Suboxone maintenance treatment as part of her family medical practice. She began
treating Ms. H. in October 2014, after Ms. H. successfully graduated from the Powell
substance abuse program.
Dr. Opesanmi provided verbal counseling during every visit, and Ms. H. was “very
teachable” and “[v]ery easily redirected.” Dr. Opesanmi acknowledged that she was not a
licensed counselor, but rather, she provided counseling as part of a holistic practice, and if
a mental health issue was “over [her] head,” she would refer them to a psychiatrist. She
testified that Ms. H. needed counseling from an independent counselor as part of her
-17-
treatment, but she had not referred Ms. H. to one because Ms. H. had “her own counselor
coming to [her].”
Ms. H. testified that, after graduating from the Powell program, she moved to a
motel in Delaware to prevent DSS from becoming involved with her daughter, I.H.L. She
did some “side jobs” and was relying on public assistance and family members for income.
In reference to questioning about various service agreements, she stated that, in the past,
she had to “do whatever [Child Protective Services] CPS tells me in order to have my kids.”
The Circuit Court’s Findings
On February 3, 2016, the circuit court granted DSS’ petitions for guardianship. It
found DSS’ witnesses to be credible, and the testimony of Ms. H.’s witnesses generally to
be lacking in detail and credibility.
The court then addressed the statutory factors set forth in Maryland Code (2012
Repl. Vol.) § 5-323(d) of the Family Law Article (“FL”), which a court must consider in a
TPR case. With respect to the services offered to the parent before placement, the court
found that DSS provided “a full panoply” of timely services, including “rental housing
assistance, drug treatment, mental health treatment, the Infants and Toddlers Program . . . ,
Food Stamps, Medical Assistance, transportation money, employment referrals, parenting
classes, anger management, . . . [and] cell phones.” With respect to whether DSS and
Ms. H. had fulfilled their obligations, it found that DSS “followed through with everything
it said it would do,” but Ms. H. failed to comply with her obligations with respect to drug
-18-
treatment, mental health evaluation and treatment, stable and verifiable housing, and stable
and verifiable employment.
With respect to Ms. H.’s efforts to adjust to her “circumstances, condition, or
conduct” to make it in her children’s best interest to return home, the court first considered
Ms. H.’s contact with her children. The court found that Ms. H. did not maintain consistent
contact with either L.B. or I.L., noting that she attended only 36 of 63 visits with L.B., and
that her consistency with respect to I.L. was sporadic. It then found that Ms. H. was “not
able to adjust to her circumstances because she hasn’t sought treatment that is required,”
and instead of working with the Department, she “threatened and verbally accosted a DSS
worker, which led to a Final Peace Order being entered against her on September 1, 2015.”
With respect to whether Ms. H. had a parental disability that affected her ability to
consistently care for her children, the court found that Ms. H. was diagnosed with PTSD,
polysubstance abuse, and “a mood disorder or bipolar disorder,” and she would “need at
least six months of clean and sober living and mental health treatment before she is even
able to parent with assistance.” The court found that additional services would not “bring
about a lasting parental adjustment so that the children could be returned home within an
ascertainable period of time not to exceed 18 months from the date of placement.” It
explained that “[b]oth parents . . . testified that they have a deep mistrust of DSS or any of
the agencies or other organizations to which referrals have been made,” and “neither parent
has ever availed themselves of any of the services” that were offered to them by DSS.
-19-
Although the court found that the factor with respect to abuse and neglect was “not
a relevant consideration in this case,” the court was required to consider a related factor:
Whether, upon birth, the child tested positive for drugs and the parent refused drug
treatment. The court found that Ms. H. tested positive for opiates when she gave birth to
both L.B. and I.L., and in I.L.’s case, Ms. H. refused to consent to treatment. The court
also noted that, although Ms. H.’s daughter I.H.L., was not a party to the proceedings, it
was a concern that she also was born addicted to drugs.
With respect to treatment for her addictions, the court found that Ms. H. “has had
five different substance abuse providers and only successfully completed one.” It
recognized that Dr. Opesanmi’s testimony generally was supportive of Ms. H.’s case in
some aspects, but it stated that her testimony “did nothing to refute the overwhelming
quantum of evidence put on by the department.” In particular, the court stated that,
although “counseling is a necessary component of a certified drug treatment program,
[Dr. Opesanmi was] only a certified provider to dispense . . . medication . . . , not to provide
counseling, which she clearly stated would be . . . outside of her qualifications.” The court
stated that it gave “low” weight to Dr. Opesanmi’s testimony because she did not testify to
“a reasonable degree of medical certainty,” and she only dispensed medication, which was
“not the same as proving certified addictions counseling.”
Finally, with respect to the children’s emotional ties to Ms. H. and others, the court
found that neither child had an emotional connection with their mother or siblings. On the
-20-
other hand, it found that both L.B. and I.L. had become well-adjusted to their loving foster
families.
The court concluded as follows:
So having considered all these factors, this Court does find by clear
and convincing evidence that it is in [L.B.’s] and [I.L.’s] best interest to grant
the department’s petition, and accordingly, the Court issues an Order to the
local department with the right to consent to adoption and long-term care
short of adoption, thereby terminating the natural parental rights of [Ms. H.]”
On February 9, 2016, the court issued written orders in both cases terminating
Ms. H.’s parental rights and granting guardianship to DSS. In each order, the court
included the following:
WHEREAS, as a result of a trial on the merits being held before this
Court and the Court having considered all the factors outlined in [FL
§ 5-323], and the Court having found by clear and convincing evidence that
the natural mother is an unfit parent and that extraordinary circumstances
exist and that it is in the child’s best interest that the natural mother’s parental
rights be terminated.
STANDARD OF REVIEW
We review orders terminating parental rights using three interrelated standards. The
Court of Appeals recently set forth the standard of review as follows:
“[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.”
-21-
In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 (2010) (quoting In re
Adoption/Guardianship of Victor A., 386 Md. 288, 297 (2005)). Accord In re
Adoption/Guardianship of Jasmine D., 217 Md. App. 718, 733 (2014).
DISCUSSION
I.
Termination of Ms. H.’s Parental Rights
Ms. H. argues that the court erred in terminating her parental rights. In support, she
contends:
[Ms. H.’s] past failures in drug treatment, mental health counseling,
housing, and employment did not necessarily make her unfit to remain in a
legal relationship with her children, in light of her current success in
recovering from her addiction and her demonstrated ability to parent an
infant without [S]tate intervention. There was no evidence presented that
[Ms. H.’s] infant child, [I.H.L.], was not receiving proper care and attention,
so it follows that [Ms. H.] was sufficiently fit to maintain a relationship with
L. and I. with the goal of eventually having custody of them returned to her.
The court failed to explain how, if at all, [Ms. H.’s] failures rendered her
unfit to remain L. and I.’s legal parent, or created exceptional circumstances
that made it contrary to L. and I.’s best interests to remain in the
Constitutionally-protected relationship with their natural parent.
The Department contends that the circuit court “properly terminated Ms. H.’s
parental rights to [L.B.] and [I.L.] after finding exceptional circumstances and that Ms. H.
was unfit to parent them due to her failure to remedy her chronic substance abuse and
stabilize her living situation.” It disagrees with Ms. H.’s contention that the juvenile court
“‘failed to articulate how its findings on the factors in [FL] § 5-323(d) lead to a conclusion
that [Ms. H.] . . . is unfit or that exceptional circumstances exist,’” stating that the extensive
factual findings issued from the bench, “combined with the written TPR orders, more than
-22-
adequately show how the court concluded that Ms. H. is an unfit parent and that exceptional
circumstances warrant termination of her parental rights.”
The Department also disagrees with Ms. H.’s assertion that the court’s decision
should be reversed because “[t]he uncontroverted evidence was that [Ms. H.] had an infant,
[I.H.L.], in her care, and she was providing proper and ordinary care for her without the
need for [S]tate intervention.” It contends that Ms. H.’s “frequent moves and failure to
keep the Department apprised of her residence,” along with her intentional move to
Delaware “to prevent the Department from having any involvement with her infant’s care,”
could “explain why [I.H.L.] was not in the Department’s care.” In any event, DSS argues
that the circuit court “expressly discredited the testimony of Ms. H. and the witnesses she
called about her ability to parent.”
Appellee children make similar arguments. They contend that the circuit court
“correctly granted the guardianship petitions . . . after properly considering the clear and
convincing evidence that the parents were substance abusers and not compliant with
recommended treatment, demonstrating that the parents were unfit and that termination
was in the best interests of the children.”
A.
The Law on TPR Proceedings
Before we address Ms. H.’s specific claims, we first review the law applicable to
TPR cases. This Court has recognized the “fundamental right of parents generally to direct
and control the upbringing of their children.” Brandenburg v. LaBarre, 193 Md. App. 178,
-23-
186 (2010) (quoting Koshko v. Haining, 398 Md. 404, 422 (2007)). We have noted,
however, that a parent’s fundamental right to raise his or her child, however, is not absolute.
That right “must be balanced against the fundamental right and responsibility of the State
to protect children, who cannot protect themselves, from abuse and neglect.” In re
Adoption/Guardianship of Rashawn H., 402 Md. 477, 497 (2007). Parental rights may be
terminated, but it “is a ‘drastic’ measure, and should only be taken with great caution.” In
re Adoption/Guardianship of Harold H., 171 Md. App. 564, 576 (2006) (quoting In re
Adoption/Guardianship Nos. J9610436 & J9711031, 368 Md. 666, 699 (2002)).
In determining whether to terminate parental rights, “it is unassailable that the
paramount consideration is the best interest of the child.” In re Adoption/Guardianship
No. T00032005, 141 Md. App. 570, 581 (2001). Accord Ta’Niya C., 417 Md. at 112
(“[T]he child’s best interest has always been the transcendent standard in adoption,
third-party custody cases, and TPR proceedings.”); Rashawn H., 402 Md. at 496 (“[T]he
best interest of the child remains the ultimate governing standard.”). It is generally
presumed “that it is in the best interest of children to remain in the care and custody of their
parents.” Id. at 495. That presumption, however, “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.” Id.
FL § 5-323(b) gives juvenile courts the authority to terminate an individual’s
parental rights. It provides:
Authority. — If, after consideration of factors as required in this section, a
juvenile court finds by clear and convincing evidence that a parent is unfit to
-24-
remain in a parental relationship with the child or 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, the juvenile court may
grant guardianship of the child without consent otherwise required under this
subtitle and over the child’s objection.
B.
Court’s Explanation for Decision
We address first Ms. H.’s contention that the circuit court did not properly articulate
how its factual findings lead to its conclusions regarding parental unfitness, the existence
of exceptional circumstances, and the best interest of the child. For the reasons set forth
below, we are not persuaded.
In Ta’Niya C., 417 Md. at 110, the Court of Appeals approved the following
framework for courts to apply in TPR cases:
“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.”
(emphasis added) (quoting Rashawn H., 402 Md. at 501).
Here, although the circuit court could have stated more expressly how its factual
findings led to its conclusion of parental unfitness and exceptional circumstances, we agree
with appellees that a review of the court’s oral statements and written order makes clear
-25-
that the court found unfitness and exceptional circumstances based on its careful evaluation
of the statutory factors and its conclusion that Ms. H. failed to stabilize her living situation
so that she could be a responsible parent to her children. The circuit court explicitly
credited the Department’s witnesses and found that Ms. H. failed to address and remedy
the conditions that precipitated the initial removal of her children. It found that Ms. H. was
offered a “full panoply of services,” starting in 2009, to help her become a responsible
parent, but she failed to take advantage of many of those opportunities. Ms. H.’s continuing
failure to become sober and stable within a reasonable amount of time, her inconsistent
presence in the lives of L.B. and I.L., and her inability to work with the Department to
achieve reunification, convinced the court that she was unfit to remain in a parental
relationship with L.B. and I.L. and that there were exceptional circumstances that made a
continuation of the parental relationship detrimental to the best interests of the children.
We conclude that the record adequately reflects the rationale of the circuit court in
determining that Ms. H. was an unfit parent and that exceptional circumstances justified
termination of her parental rights.
C.
Sufficiency of the Evidence
Ms. H.’s second contention is that the circuit court erred in terminating her parental
rights because there was insufficient evidence to support the court’s finding that she was
unfit to have a continued parental relationship with her children or that there existed
exceptional circumstances that made a continued parental relationship detrimental to the
-26-
children’s best interest. In support, she asserts that there was “uncontroverted evidence”
that she was “providing proper and ordinary care for [I.H.L.] without the need for [S]tate
intervention,” and therefore, “it follows” that she was “sufficiently fit to maintain a
relationship with” L.B. and I.L. We are not persuaded.
As appellees note, there was no evidence to support the assertion that Ms. H. was
properly caring for her infant child. Indeed, Ms. H. admitted that she moved to Delaware
for the express purpose of preventing DSS from becoming involved with her infant
daughter. Ms. H. cannot prevent the State from evaluating her fitness as a parent with
respect to I.H.L. and then insist that the court simply accept her self-serving evidence that
she is properly caring for her daughter. This contention is devoid of merit.16
The circuit court’s factual findings were not clearly erroneous, and it was proper for
the court to credit the Department’s overwhelming evidence that Ms. H. had not
sufficiently addressed her problems to remain in a parental relationship with L.B. and I.L.
Accordingly, the court’s ultimate determination to terminate Ms. H.’s parental rights was
supported by the record, and it did not constitute an abuse of discretion.
16
Indeed, we note that I.H.L., similar to her brothers, was born addicted to drugs,
and Ms. H. had not, at the time of the hearing, secured adequate housing or steady
employment, received the addiction counseling that she needs, or addressed her mental
health issues. Ms. H.’s move to Delaware, however, prevented the Department from
investigating Ms. H.’s fitness to parent I.H.L.
-27-
II.
Guardianship Decision
Ms. H. next argues that the circuit court erred by granting guardianship to the
Department, as opposed to placing the children in the care of relatives, such as “their
grandparents or uncle, all of whom testified to their ability to provide care for their
relatives.” She asserts that, “[w]here it is possible for a child, who cannot be returned to a
parent, to be placed with a relative, the relevant statutes require that the Department
facilitate a relative placement.”17
The Department argues that Ms. H. “lacks standing on the issue,” and therefore,
“this Court need not address” her arguments. It contends that, “[g]iven that the juvenile
court properly terminated Ms. H.’s parental rights over [L.B. and I.L.] after affording her
a full and fair opportunity to litigate those rights, Ms. H. is now a legal stranger to the
children who has no duties, no obligations, and no rights toward the children,” and
therefore, she lacks standing to attack the “court’s separate order awarding guardianship of
the children to the Department.” The Department argues that, “although Ms. H. has an
17
We note that the record reflects that the Department explored potential relative
placement, but it determined that was not a viable option. Ms. H. did not argue below that
this assessment was erroneous, and our review of the record does not reflect any request
by Ms. H. that the court place her children with relatives. Under these circumstances, it is
difficult for Ms. H. to persuasively argue that the court erred or abused its discretion in
granting guardianship to the Department, as opposed to relatives. See Weatherly v. Great
Coastal Express Co., 164 Md. App. 354, 386 (2005) (appellant may not be heard to
complain on appeal about a ruling the court was never asked to make). The Department
does not argue, however, that Ms. H. has failed to preserve this issue for this Court’s
review, and therefore, we will proceed to address the arguments presented by the parties.
-28-
interest in the circuit court’s guardianship order, she holds no standing to challenge an
aspect of that order that pertains to third parties, i.e., the court’s choice of guardian for the
children.”
In any event, DSS argues, even if Ms. H. had standing on the issue of the children’s
placement, her claim is without merit. DSS asserts that “it was within the juvenile court’s
discretion to award guardianship to the Department,” and the evidence “militate[d] against”
placing the children with Ms. H.’s family.
Appellee children argue that the circuit court “is charged, first and foremost, with
making decisions that are in the best interest of the child.” They contend that “the
Department considered placement with various relatives and determined that placement
with those relatives was contrary to the best interests of L.B. and I.L., who have each spent
several years, and the better part of their lives, with their foster families.”
In her reply brief, and in a supplemental brief filed after oral argument, Ms. H.
argues that she does have standing to challenge the court’s decision to grant guardianship
of her children to the Department rather than to a relative. She asserts that “denial of a
request to place the children with relatives is not an issue that is separate from the other
issues that arise at a termination hearing,” and “when a trial court denies a request by a
parent to grant guardianship to a relative rather than the Department, the parent has
standing to challenge that decision on appeal as an abuse of discretion.”18 Ms. H. further
18
As noted, Ms. H. has not asserted that she made, and we could not find in the
record, any request that the court grant guardianship of a child to a relative.
-29-
asserts “that a parent retains the post-guardianship right to notice of the post-guardianship
review hearings and the right to be heard and participate supports the proposition that
parents have standing vis a vis the subject child even after their legal relationship has been
extinguished.”19
Before reaching the merits vel non of Ms. H.’s claims, we first must address the
threshold question whether she has standing to challenge the placement of L.B. and I.L.
“One requirement of justiciability is that the plaintiff have standing in the sense that the
person is entitled to invoke the judicial process in a particular instance.” Adams v.
Manown, 328 Md. 463, 480 (1992). As this Court recently explained in State v. Phillips,
210 Md. App. 239, 257 (2013):
“[S]tanding is a threshold issue; a party may proceed only if [he or she]
demonstrates that he has a real and justiciable interest that is capable of being
resolved through litigation.” Norman v. Borison, 192 Md. App. 405, 420
(2010), aff’d on other grounds, 418 Md. 630 (2011). “In order to have
standing, a party must demonstrate an ‘injury-in-fact,’ or ‘an actual legal
19
In this regard, Ms. H. relies on: (1) Maryland Code (2012 Repl. Vol.) § 5-326 of
the Family Law Article (“FL”), which addresses guardianship review hearings; and (2) In
re Adoption/Guardianship Nos. 11387, 11388, 354 Md. 574 (1999), which held, in
addressing a prior statute regarding post-guardianship review hearings, that a natural parent
whose parental rights had been terminated had a statutory right to participate in the hearing.
As the Department points out, the cited case is of limited value because § 5-326 replaced
the prior statute, and the new statute reflects the General Assembly’s view that a parent
who has had his or her parental rights terminated does not have party status in guardianship
review hearings. FL § 5-326(a)(3)(iii) (“[A] parent is not a party [to a guardianship review
proceeding] solely on the basis of the right to notice or opportunity to be heard or
participate at a guardianship review hearing.”). This statute, which was not referenced
prior to argument, is not instructive to the issue on appeal, i.e., whether a parent who has
had his or her parental rights terminated has standing, on appeal from that order, to
challenge the court’s additional order awarding guardianship of the child to the
Department.
-30-
stake in the matter being adjudicated.’” Id. (quoting Hand v. Mfrs. & Traders
Trust Co., 405 Md. 375, 399 (2008)).
(parallel citations omitted).
The question presented here is whether, after the circuit court terminated Ms. H.’s
parental rights, she had standing to challenge the court’s order granting guardianship to the
Department. The Maryland appellate courts have held that, once there has been a final
termination of parental rights, the parents of the child are no longer interested parties with
standing to challenge subsequent legal proceedings regarding the children. See Hale v.
Cramer, 254 Md. 592, 597 (1969) (where the unwed, natural mother of a child consented
to a guardianship with the right to consent to adoption, she had no standing to challenge
the guardian’s decision to consent to the child’s adoption or to intervene in the subsequent
adoption proceedings); Qureshi v. Dir., Prince George’s County Dep’t of Soc. Servs., 11
Md. App. 615, 622-23 (1971) (mother’s consent to petition for guardianship with consent
for adoption of her newborn baby terminated her parental rights, and mother lacked
standing subsequent to the issuance of the final guardianship decree to challenge DSS
procedures). See also FL § 5-325(a) (an order granting guardianship of an individual
“terminates a parent’s duties, obligations, and rights toward the individual”).
The above cases, however, dealt with situations where the termination of parental
rights was deemed to be final in a situation where: (1) there was no challenge on appeal to
the guardianship order; or (2) the appellate court affirmed the initial order. It was in that
context that the courts held that the parents had no standing to challenge subsequent legal
-31-
proceedings regarding the children. Hale, 254 Md. at 597; Qureshi, 11 Md. App. at 622-
23.
Other courts have reached similar conclusions and held that, when a party fails to
challenge the termination of his or her parental rights, the party loses any interest in the
guardianship of the party’s child. For example, in In Interest of D.B., 483 N.W.2d 344,
345 (Iowa Ct. App. 1992), the juvenile court terminated the mother’s parental rights, denied
the aunt’s request for guardianship, and granted custody to the State. The Court of Appeals
of Iowa held that the mother, in failing to challenge the termination of her parental rights,
allowed that portion of the order to become final, and because the termination of her
parental rights concerning her child divested her “of all privileges, duties and powers with
respect to the child,” she relinquished any legally recognizable interest she would have
concerning the guardianship or custody of her child. Id. at 346. Because the mother was
not, therefore, aggrieved by the court’s order giving guardianship of the child to the State,
as opposed to the child’s aunt, she did not have standing to challenge the court’s placement
of the child following the termination. Id. at 345-46.20 Accord Ryder v. State, 917 S.W.2d
503, 505 (Tex. App. 1996) (parent lacked standing to challenge child’s placement where
the termination of her parental rights became final after she failed to perfect an appeal from
the termination decree); State, in interest of J.S., 272 P.3d 169, 170 (Utah Ct. App. 2012)
(parents had no standing to appeal placement of children with foster parents instead of
20
Under these circumstances, the court stated that it was not required to entertain
the appeal. In Interest of D.B., 483 N.W.2d 344, 346 (Iowa Ct. App. 1992). The court did,
however, address the merits of the claim, finding it to be without merit.
-32-
relatives because, once parental rights were terminated, a finding not challenged, parents
had no protected interest in the children’s custody).
Here, however, Ms. H. has appealed the propriety of the court’s order terminating
her parental rights. The parties have not cited, and we have not found, any Maryland case
addressing the issue whether, in an appeal challenging an order terminating parental rights,
the parent retains standing to challenge the court’s decision, made during the same
proceedings, regarding guardianship of the children.
Other courts, however, have addressed the issue, with differing results. Some courts
have found that parents do not have standing to challenge the placement of their children
once an appellate court affirms the termination of their parental rights. For example, in
Matter of Adoption of J.S.P.L., 532 N.W.2d 653 (N.D. 1995), father appealed from a
judgment terminating his parental rights and granting a petition to adopt the children. On
appeal the Supreme Court of North Dakota upheld the trial court’s ruling terminating
father’s parental rights. Id. at 665. With respect to father’s claims regarding the adoption
of the children, the court stated that once it concluded that the trial court properly
terminated father’s parental rights, father “simply no longer has standing to object to
anything concerning the children or their adoptive placement.” Id. at 665. The court stated:
“[A]fter a parent’s parental rights have been terminated under the Act, that
parent has no remaining residual rights of any kind, nor does that parent have
any standing to raise any concerns or state any preferences regarding the
ultimate placement of his or her child for adoption. When viewed from the
perspective of the child, the parent whose parental rights have been
terminated no longer exists.”
-33-
Id. (quoting In the Interest of C.B., 583 N.E.2d 107, 108 (Ill. App. Ct. 1991)). The court
concluded that, because father did not have standing with respect to the issues raised
regarding the adoption, it would not address them. Id. Accord In re E.A.T., 989 P.2d 860,
862, 863-64 (Mont. 1999) (because appellate court upheld termination of a mother’s
parental rights, mother was divested of all legal rights with respect to the child and did not
have standing to object to court’s placement of the child with the State as opposed to the
child’s grandmother).21
Other courts, however, have held that parents whose parental rights have been
terminated may challenge on appeal a trial court’s orders with respect to matters other than
the termination of their parental rights, such as placement and visitation, as long as those
decisions occurred in the process of terminating the parental rights. For example, in Logan
v. Fairfax County Dep’t of Human Dev., 409 S.E.2d 460, 461 (Va. Ct. App. 1991), a mother
appealed an order terminating her parental rights and granting custody of her child to the
Department of Human Development, as opposed to the child’s maternal grandmother. The
court upheld the decision to terminate mother’s parental rights, but it rejected the
Department’s argument that the mother “lack[ed] standing to raise this issue since her
residual parental rights [had] been terminated.” Id. at 464. Noting that, by statute, the
21
A distinction made by one court is that a parent may be able to show that he or
she is aggrieved by a placement order, and thus have standing to contest it, if the placement
order’s reversal “advances the parents argument against terminating parental rights.” See
In re K.C., 255 P.3d 953, 956-57 (Cal. 2011). No such claim is made in this case.
-34-
court was required to accompany an order terminating parental rights with an order
granting custody, the Court of Appeals of Virginia stated that the child’s
placement was a part of the process terminating [the mother’s] parental
rights, not a separate proceeding. While [the mother] may lose standing to
contest future matters relating to [the child] after her residual parental rights
have been terminated, she has standing to contest any portion of the process
terminating her rights, including [the child’s] placement with the
Department.”
Id. Accord In re Adoption of Rico, 905 N.E.2d 552, 560 n.16 (Mass. 2009) (where
“visitation order, however, was part of the adjudication of a termination proceeding to
which the father was a party,” father had standing to challenge visitation order on appeal).
Pursuant to these authorities, it is clear that, once an order terminating parental rights
becomes final, the parent has no standing to challenge future matters regarding the child.
In the situation where a parent challenges the termination of parental rights on appeal,
however, we hold that the parent retains standing to raise on appeal an issue relating to
“any portion of the process terminating her rights,” including the child’s placement with
the Department. Once the termination of parental rights is affirmed on appeal, however,
the order becomes final, and the parent no longer has standing to challenge decisions
relating to the child, including the circuit court’s order regarding placement of the child.
Accordingly, because we have affirmed the order terminating Ms. H.’s parental rights, she
no longer has standing to contest the court’s decision regarding guardianship.
Even if Ms. H. had standing to contest the placement of the children, we would
conclude that the trial court did not abuse its discretion in granting guardianship to DSS.
Ms. H. identifies three potential family members that she argues would be preferable to
-35-
placing the children with the State, her mother, J.H., her brother, S.H.(H), or her father,
D.H. The record reflects, however, as the Department asserts, that the circuit court “did
not abuse its discretion when it awarded guardianship to the Department rather than to
relatives who were not viable placement options.”
With respect to J.H., the Department’s witnesses testified that she already was
caring for Ms. H.’s older child, and she had mental health problems of her own, harassed
S.H.(H) and S.H.(W) when L.B. was in their care, and was not honest with and able to
work to work with DSS. With respect to S.H.(H), the court found that L.B.’s prior
placement with him and his wife was “thwarted by [Ms. H.’s] constant harassment,
repeated requests for unsupervised [visits], name calling, and unfounded accusations.”
Moreover, DSS witnesses asserted, and S.H.(H) conceded, that he never completed the
process to become certified as a placement resource for the children.
With respect to D.H., he and his wife were not approved as placements due to
concern about their suitability, including their failure to provide information to the
Department in a timely manner, their “contentious relationship” with Ms. H., which raised
concern about whether they would follow the Department’s instructions regarding
visitation, and their lack of contact with the children. Indeed, when S.H.(H) asked for help
with L.B., D.H. stated that it was “not [his] problem,” and he refused to assist S.H.(H) with
L.B.’s care.
Moreover, the court, as it was required to do, took into consideration the children’s
emotional attachments. The court found that L.B. and I.L. had become well-adjusted to
-36-
their respective foster families, but they did not have any significant relationships with their
uncle or grandparents. Under these circumstances, even if Ms. H. had standing to contest
the decision, we would conclude that the circuit court did not abuse its discretion in
granting guardianship to DSS.
JUDGMENT OF THE CIRCUIT
COURT FOR HARFORD
COUNTY AFFIRMED. COSTS
TO BE PAID BY APPELLANT.
-37-