In re: Adoption/Guardianship of C.E., No. 77, September Term 2017. Opinion by Getty,
J.
FAMILY LAW— TERMINATION OF PARENTAL RIGHTS—FAMILY LAW
ARTICLE § 5-323—UNFITNESS
A juvenile court abuses its discretion when it declines to find the parents unfit and terminate
parental rights even though it has found that the parents are unable to ever safely care for
their child.
FAMILY LAW—TERMINATION OF PARENTAL RIGHTS—FAMILY LAW
ARTICLE § 5-323—EXCEPTIONAL CIRCUMSTANCES
A juvenile court abuses its discretion when it declines to find exceptional circumstances
and terminate parental rights when the father refuses to sever his relationship with the
child’s mother who is unfit to safely care for the child. The mother had a lengthy history
of serious mental illness that neither parent acknowledged, and the father sought to move-
in with the mother and frequently leave the child, alone in the mother’s care.
FAMILY LAW—TERMINATION OF PARENTAL RIGHTS—SUBSEQUENT
ACTION
A juvenile court errs as a matter of law when it changes a child in need of assistance
permanency plan during a termination of parental rights hearing conducted pursuant to
Maryland Code, Family Law Article, § 5-323 without issuing two separate orders pursuant
to Maryland Code, Family Law Article, § 5-324. Such error is not harmless when the
juvenile court’s order applied the preponderance of the evidence standard to the underlying
termination of parental rights hearing.
Circuit Court for Baltimore City
Case No. T16106011
Argued: June 1, 2018
Reargued: March 1, 2019
IN THE COURT OF APPEALS
OF MARYLAND
No. 77
September Term, 2017
IN RE: ADOPTION/GUARDIANSHIP OF
C.E.
Barbera, C.J.
Greene,
McDonald,
Watts,
Hotten,
Getty,
Adkins, Sally D. (Senior Judge,
Specially Assigned)
JJ.
Opinion by Getty, J.
Filed: June 6, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-06-06
12:51-04:00
Suzanne C. Johnson, Clerk
Before us is a judgment of the Circuit Court for Baltimore City declining to
terminate the legal relationship between a mother, a father, and their child and ordering the
child into the guardianship and custody of a relative. We are asked to consider whether
allowing this child to remain indefinitely in the custody of the third party, without
terminating the parental rights of the father or of the mother, constitutes a proper exercise
of judicial discretion when evidence was presented at the termination of parental rights
hearing that neither parent possesses the ability to ever safely care for the child. In
reviewing this issue, we continue to follow this Court’s precedent of more than a decade
and affirm that the pursuit of the best interest of the child remains the overarching goal
when considering the termination of parental rights (“TPR”) pursuant to § 5-323 of the
Family Law Article (hereinafter “FL”) of the Maryland Code.
This Court first completed a comprehensive review of TPR proceedings in 2007, in
In re Adoption/Guardianship of Rashawn H., 402 Md. 477 (2007). Three years later, this
Court, in In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90 (2010), reexamined TPR
proceedings and confirmed the child’s best interest remains the prevailing standard as
outlined in Rashawn H. Following Rashawn H. and Ta’Niya C., this Court specifically
reviewed the unfitness prong of FL §5-323, in In re Adoption/Guardianship of Amber R.,
417 Md. 701 (2011) and the exceptional circumstances prong of FL § 5-323, in In re
Adoption/Guardianship of H.W., 460 Md. 201 (2018).
Now, we seek to further clarify the circumstances under which a juvenile court must
find that termination of parental rights is the proper recourse under either the unfitness
prong or the exceptional circumstances prong of FL § 5-323.1 We hold that in order to
achieve the best interest of the child and to provide sufficient permanency for the child, it
was an abuse of discretion for a juvenile court to decline to terminate the parental rights of
the Father when a juvenile court finds that Father can never safely care for the child.
Sufficient permanency for the child is not achieved when the child remains indefinitely in
the guardianship and custody of a relative. Furthermore, we hold the juvenile court abused
its discretion when it failed to recognize an exceptional circumstance justifying the
termination of the parents’ parental rights. Finally, it was an error of law for the juvenile
court to change a child in need of assistance (hereinafter “CINA”) permanency plan during
a termination of parental rights hearing conducted pursuant to FL § 5-323 without issuing
two separate orders pursuant to FL § 5-324. Accordingly, we shall vacate the judgment of
the juvenile court and remand this matter for further proceedings consistent with this
opinion.
BACKGROUND
C.E. (hereinafter “C.E.” or “the child”) is a male child born in May 2014 to C.D.
(hereinafter “Mother”)2 and H.E. (hereinafter “Father”). C.E. was born two months
1
While pending in the Court of Special Appeals, C.E. filed a timely Petition for Writ of
Certiorari before this Court in an effort to expedite permanency for C.E. We granted
certiorari on February 5, 2018.
2
Mother does not appeal the juvenile court’s conclusion that there was clear and
convincing evidence presented to support termination of her parental rights. However,
Mother has participated in the appeal, arguing along with Father, that the juvenile court’s
findings, declining to terminate both of their parental rights due to Father and C.E.’s
relationship, should be affirmed. The following background involving the Mother is
2
premature and after birth was placed in the Neonatal Intensive Care Unit of Johns Hopkins
Hospital. In time, he was transferred to the Mount Washington Pediatric Hospital.
Immediately after C.E.’s birth, a Baltimore City Department of Social Services
(hereinafter “the Department”) caseworker, Nia Noakes, responded to a “risk of harm”
report and a request for a safety assessment of a newborn by Johns Hopkins Hospital. As
a part of the safety assessment, Ms. Noakes examined Mother’s home with both parents
present. Ms. Noakes also consulted the Department’s records to determine whether the
family had a history with the Department.
Ms. Noakes discovered that the Department had removed Mother’s other five
children from her care over the past two decades. See In re C.E., 456 Md. 209, 211 (2017).
Mother first interacted with the Department in 1996.3 Id. C.E. was Mother’s sixth child
to be adjudged CINA.4 Id. Mother has a well-documented history of mental illness causing
her to lash out against her children. Id. Her “previous mental health diagnoses include
paranoia, adjustment disorder, major depression, somatization disorder, borderline
included in this opinion to the extent that it is relevant to the findings of the Father, whose
relationship to the child is at issue.
3
The Court of Special Appeals has set forth these extensive interactions in at least five
decisions. See In re Joy D., 216 Md. App. 58 (2014); In re C.E., No. 925, Sept. Term,
2015, 2015 WL 9183397 (Md. Ct. Spec. App. Dec. 15, 2015), cert. denied 446 Md. 705
(2016); In re Adoption/Guardianship of Joy D., No. 2307, Sept. Term, 2014, 2015 WL
5821580 (Md. Ct. Spec. App. Aug. 13, 2015), cert. denied, 445 Md. 20 (2015); In re Joy
D., No. 1894, Sept. Term, 2013 (Md. Ct. Spec. App. May 2, 2014); In re
Adoption/Guardianship of Malachi D., No. 3006, Sept. Term, 2010, (Md. Ct. Spec. App.
Sept. 20, 2011), cert. denied, 424 Md. 56 (2011).
4
The first CINA finding occurred in 1998 and the latest CINA finding, pertaining to C.E.,
took place in 2015.
3
personality disorder, mania, and bipolar affective disorder.” Id. Mother has also
demonstrated “fits of rage.” Id. On numerous occasions, “juvenile courts repeatedly have
found that [Mother] displayed a complete inability to care for her children, control her
emotions, or effectively communicate with her children and the Department.” Id. at 212.
After the home visit and subsequent research, Ms. Noakes held a Family
Involvement Meeting (“FIM”)5 to determine whether C.E. could be safely placed with
either Mother or Father. Concerned with Mother’s previous interactions with the
Department, Ms. Noakes determined that C.E. would not be safe in her care. The
Department also learned that Father could not care for C.E. because Father resided in a
senior housing complex that did not allow children to reside at the property except for a
short-term duration of two weeks.
The Department filed for emergency shelter care on July 10, 2014, in the Circuit
Court for Baltimore City (hereinafter “juvenile court”)6 while C.E. was still at Mount
Washington Pediatric Hospital. In late June or early July 2014, Mother telephoned her
cousin, Ms. B., and advised that she could not take C.E. home from the hospital and asked
for permission to provide Ms. B.’s contact information to Mount Washington Pediatric
5
A FIM is a casework practice with the purpose of establishing “a team to engage families
and their support network to assess the needs and develop service plans. The goal is to
develop service plan recommendations for the safest and least restrictive placement for a
child while also considering appropriate permanency and well-being options for that
child.”
6
The judge of the Circuit Court for Baltimore City was sitting as the juvenile court
throughout this proceeding. See Md. Code (2006, 2013 Repl. Vol.), Courts & Judicial
Proceedings, § 3-801(i).
4
Hospital and the Department. Mother and Ms. B. had not been in contact for years prior
to C.E.’s birth and had only reconnected when Mother found Ms. B. on Facebook. Ms. B.
and her husband, Mr. B. consented. The Department reached out to Ms. B. and Mr. B. to
conduct a background check and begin the placement process.
After a hearing in July 2014, the juvenile court granted the Department’s request for
temporary care and custody of C.E. By July 15, 2014, Mr. and Ms. B. had successfully
completed the necessary department requirements. Upon C.E.’s hospital discharge on July
21, 2014, the Department placed C.E. with them where he has remained throughout his
entire life.
During the summer of 2014, the Department facilitated the second FIM for both
parents. Father entered into a service agreement with the Department that was in effect
from July 11, 2014 to September 11, 2014, and committed to finding housing where he
could reside with C.E. The Department also referred Father to the Center for Urban
Families’7 parenting classes which occurred twice a week for three months. Father initially
did not attend the classes but he eventually completed the weekly ten-week course on
positive parenting skills. Father was also referred to Hebron House8 for anger management
counseling.
7
The Center for Urban Families is located at 2201 North Monroe Street, Baltimore,
Maryland 21217. The organization’s mission is to strengthen Baltimore communities by
helping fathers and their families achieve stability.
8
Hebron House, Inc. is a community-based outpatient mental health clinic serving the
Baltimore Area since 2003.
5
The Department continued to provide other services to the parents to achieve
reunification with C.E. The Department facilitated regular supervised visits between C.E.,
Mother, and Father. The visits were scheduled weekly during 2014 and bi-weekly from
2015 to 2017. Initially the visits occurred supervised at the Mother’s home for three
months. However, the Department decided to move the visits to Department facilities due
to environmental concerns. The Department provided the supervision during the visitation
period and both parents attended most of the scheduled visits. These visits were
occasionally marked with C.E.’s angry outbursts towards his Mother. On other occasions,
the visits were characterized as generally positive interactions with Father.
After multiple postponements, the juvenile court found C.E. to be a child in need of
assistance on June 16, 2015 and awarded custody to the Department for continued
placement with his relatives, Mr. and Ms. B. Additionally, the supervised visitation was
continued and Father was ordered to submit to a clinical evaluation by Court Medical
Services.9 Mother appealed the juvenile court’s findings to the Court of Special Appeals
which affirmed the judgment of the juvenile court. See In re C.E., No. 0925, Sept. Term,
2015, 2015 WL 9183397 (Md. Ct. of Sp. App., Dec. 15, 2015) (“The juvenile court’s
findings were supported by the evidence presented and the court’s CINA determination
was supported by the law. Accordingly, we hold that the trial court did not err nor abuse
its discretion when it found C.E. to be CINA and committed him to the custody of the
Department.”), cert. denied, 446 Md. 705 (2016).
9
On July 21, 2015, Father underwent this clinical evaluation.
6
On April 20, 2016, the juvenile court granted the Department’s motion to waive its
obligation to continue to make reasonable efforts to reunify Mother with C.E. pursuant to
§ 3-812(d) of the Courts & Judicial Proceedings Article (hereinafter “CJP”) of the
Maryland Code. Mother appealed. The Court of Special Appeals determined that the
juvenile court’s decision to waive reasonable efforts for reunification was not appealable
and therefore dismissed the appeal. In re C.E., No. 0464, Sept. Term, 2016, 2016 WL
7235560 (Md. Ct. Spec. App., Dec. 14, 2016), aff’d, 456 Md. 209 (2017). Following this
Court’s determination on waiver, the Department filed a Petition for Guardianship with the
Right to Consent to Adoption or Long-Term Care Short of Adoption.
The termination of parents rights hearing took place in 2017 on the following dates:
March 20, March 21, April 27, May 2, June 27, and July 5. First, Ms. Noakes testified as
a family services case worker with the Department. She testified to her interactions with
both parents immediately after C.E. was born and while the Department was determining
whether to petition for shelter care and guardianship.
Next, Brenda Harriel, Coordinator of Medical Services for the Juvenile Section,
testified as an expert witness in clinical and forensic social work, with specialties in
diagnosis and treatment of individuals with DSM-V10 mental health diagnosis and
parenting skills assessments. She evaluated Father in July of 2015. In reaching her
conclusion, she relied on her meeting with Father, court documents, and the Department’s
10
The DSM-V is the Diagnostic and Statistical Manual of Mental Disorders published by
the American Psychiatric Association.
7
family social history report. Father refused to consent to the release any of his medical
records. She determined that Father presented with schizotypal personality disorder which
features “cognitive or perceptual distortions . . . odd beliefs, peculiar behaviors,
inappropriate or constrictive affect, and reduced capacity for close relations.” She
recommended no treatment for his personality disorder. Ms. Harriel opined that Father
would not be able to “provide proper care in a consistent, protective, and nurturing way.”
Ms. Harriel also testified to her evaluation of Mother in 2010. That evaluation was
conducted during proceedings for one of Mother’s other children, J.D. During that
evaluation, Mother refused to answer questions, claiming her rights were being violated.
From her behavior that day, Ms. Harriel observed symptoms of mania. However, Ms.
Harriel conceded that she had not evaluated Mother since 2010.
Mr. and Ms. B. testified next. They explained that C.E. is epileptic and continues
to receive medication for his epilepsy as prescribed by a neurologist. C.E. also exhibits
delays in physical growth and has problems with communication, executive function, and
attention deficit. He has been characterized as very active, impulsive, quick to frustration,
and aggressive. They stated that at the time of the hearing, he was undergoing a formal
diagnostic process at Johns Hopkins Bayview Medical Center to determine whether he is
on the autism spectrum. Ms. B. acknowledged C.E.’s challenges, but was satisfied with
the progress he had made in their home. She testified:
C[E.]’s a good boy . . . He get up, and eat, and do what he do. He likes to
be in his room. His room is like his little castle. He likes cartoons. He likes
playing the cool stuff. He plays the guitar . . . He likes to play. He likes to
run and jump. [C.E.]’s [sic] very active.
8
When asked during each of their examinations whether they wished to adopt C.E., they
both answered that they wished to adopt him.
Laurie Higginbotham, the Clinical Social Worker Supervisor with the Department
also testified and was accepted as an expert. Ms. Higginbotham was asked to observe a
visit and to give some suggestions to Father and Mother to improve visitation with C.E.
After observing Father with C.E. during several visits, Ms. Higginbotham opined that
Father sometimes interacted appropriately with C.E. but that caring for C.E. consistently
would likely be too stressful for Father. She noted that in her opinion, the Father would
have difficulty sustaining enough energy for C.E. Overall, she concluded that C.E. requires
focus and attention that Mother and Father cannot provide for their child.
After Ms. Higginbotham, Ms. Mary Ann Ervin, a Supervisor for the Department,
testified. Ms. Ervin was familiar with Mother due to Mother’s previous interactions with
the Department. Ms. Ervin explained some of the Department’s efforts toward attempting
reunification between the parents and C.E. Further, a variety of documents detailing the
parents’ interactions with the Department were admitted into evidence.
Next, Nkeiruka Udom, the assigned caseworker testified. She was assigned to the
case in 2017 after taking over for another caseworker. Ms. Udom testified to some of the
visits she witnessed between C.E. and his parents.
After the conclusion of Ms. Udom’s testimony, Mother was called as a witness.
Prior to the start of the hearing, the juvenile court had granted Mother’s request to have an
accommodation and participate in the hearing through the telephone. For her testimony,
the juvenile court required Mother to appear by video conference so that the parties and the
9
juvenile court had the benefit of her demeanor during the examination. Through video
conference, Mother explained her visitations with C.E. and her interactions with the
Department. She believes the Department “took” C.E. only because of her prior
interactions with the Department. Mother also testified that she maintains her own
residence but spends a substantial amount of time with Father at his residence. She stated
Father and Mother were looking to move to Delaware together. Mother also testified that
she does not have a good relationship with Mr. and Ms. B.
As for her mental health, Mother stated, “I don’t have a mental illness, I have PTSD
from legal abuse syndrome.”11 Mother commented that she was testifying in this matter
against her health. After Mother’s first day of testimony, the Court characterized her
responses during cross-examination as “long,” “distorted,” “nonresponsive” narratives to
the questions asked. When cross-examination was to resume five days later, Mother did
not appear. Within those five days, Mother had been hospitalized and discharged for
anxiety and chest-pains. The juvenile court excused Mother from testifying that day and
sought to reschedule Mother’s testimony when her health permitted. Mother waived her
appearance for the day.
Father testified after Mother was excused. Father and Mother began their
relationship in 2010 and remain together. Father was educated through the ninth grade and
is employed full-time as a dishwasher. He receives Supplementary Security Income for a
11
“Legal Abuse Syndrome” is not recognized in the DSM-V. The theory is credited to
authors such as Dr. Karin D. Huffer. “Legal Abuse Syndrome” is known to Mother through
her review of resources such as those propounded by Dr. Huffer.
10
disability. C.E. is Father’s second-born son. Father’s first child, who is now an adult,
entered the foster care system during minority and was raised by Father’s sister. Father
acknowledges he did not participate in the raising of his first son.
Since C.E.’s birth and through the termination of parental rights hearing, Father has
resided in senior citizen housing. His housing prohibits children from residing at the
residence for longer than two weeks. When asked whether he planned to live with Mother
if C.E. was returned to him, Father responded “I would have to.” He testified further that
if C.E. was returned, he would exclusively rely on Mother to care for C.E. while he was at
work. Father does not believe Mother has any mental illnesses and he is adamant that he
will not separate C.E. from Mother. Father admitted past domestic violence with Mother,
but testified that he had addressed that issue by attending classes at the Center for Urban
Families. As Mother did during her direct examination, Father testified to his sincere desire
to reunite with C.E.
The hearing resumed to permit C.E. to conduct cross-examination of Mother.
Mother indicated she was not able to continue testifying and gave a narrative statement on
the record without being sworn and without anyone’s ability to cross-examine Mother.12
12
At the end of the hearing that day, the juvenile court stated on the record that it was
issuing an ordering regarding Mother’s narrative. The juvenile court indicated the order
would state, in part:
Mother’s admission that she is the same . . . . she is the same advocate she
was in the [J.D.] and [M.D.] case is found sincere and credible and is, in my
view, an admission. Her voluntary narrative statement on the record is
unsworn and laced with unsupported sensational accusations against the
Court, the attorneys, the parties and the Department of unconstitutional
practices, racism, victimization, blame, none of which is appropriate to be
11
In order to achieve a resolution to the matter, C.E. waived his cross-examination of the
Mother. The hearing concluded that day.
The Juvenile Court’s Findings
The juvenile court denied the Department’s Petition for Guardianship with the Right
to Consent to Adoption or Long-Term Care Short of Adoption. The Court found that there
was clear and convincing evidence that Mother was unfit but that there was only a
preponderance of the evidence that Father was unfit. Because it denied the petition for
guardianship, the juvenile court did not terminate either Mother’s or Father’s parental
rights. Specifically, the juvenile court wrote, in part, in its opinion:
[T]he Court concludes that there is not clear and convincing evidence that it
is in [C.E.’s] best interest to terminate his parents’ parental rights; nor is there
clear and convincing evidence that it would be contrary to [C.E.’s] welfare
to continue his parents’ parental rights, diminished by a changed permanency
plan of custody and guardianship to cousin [Ms. B.] and [Mr. B] without
termination of parental rights. The Court finds in denying the TPR at this
time and simultaneously changing [C.E.’s] permanency plan to [custody and
guardianship] without termination of parental rights is in [C.E.’s] best
interest and welfare.
The findings below show by a preponderance of the evidence that there is no
likelihood [of] reunification of [C.E.] with Mother and/or Father can be
achieved in the foreseeable future, in eighteen months, or indeed, ever.
***
While adoption remains the gold standard of permanency where reunification
is not safely possible, in this case the very strong commitment of [Mother]’s
relatives, [][Mr. and Ms. B.], to his care, convince this Court that [C.E.] will
received as evidence and none of which was focused on the parenting,
medical, educational and nurturing needs of the Respondents or the
Respondent, age 3.
12
have the benefit of stability and permanence with the plan adopted here in
childhood and into his adulthood.
Father’s [sic] more likely than not unfitness to parent [C.E.] results from his
lack of housing where [C.E.] can live in small part []. Father’s mental health
evaluation [] opines a diagnosis of Schizotypal Personality Disorder.
However, that diagnosis is not convincing in the fact of the consistently
reported good parenting time/visitation Father has shared with [C.E.]
Furthermore, the limited factual and analytical basis in this record for that
diagnosis [] causes the Court to give little weight to the mental health
assessment, on which [the Department] and [C.E.]’s counsel make no
comment in argument. However, Father’s [sic] found more than likely
unfitness rests in great degree upon his admitted nearly total reliance on
Mother to parent [C.E.] when he is unavailable during extensive working
hours. While the provision of daycare to assist Mother is theoretically a safe
plan for reunification, it is patently clear on this record that Mother’s mental
health would not allow her to accept this support necessary for [C.E.’s] safety
in Mother’s care. Repeatedly, Mother decomposes into stress induced rage
behaviors whenever a third party challenges the smallest aspect of her
parenting conduct; [C.E.] can not and should not be subjected to this well
established pattern of psychological abuse by Mother.
While neither parent individually or together is able to care for [C.E.] the
Court is convinced that [C.E.] knows his parents and displays a sufficient
connection with them—particularly with Father—to raise safety concerns for
the termination of that relationship which has not been overcome by any clear
and convincing evidence otherwise.
Both the unfitness found for [C.E.]’s parents (by clear and convincing
evidence for Mother; merely a preponderance of the evidence for Father) and
the exceptional circumstances found support the change of permanency plan
to custody and guardianship without termination of parental rights.
***
[I]n the three years [C.E.’s] CINA case and more recently this TPR case have
been pending, parents have achieved very little to prepare a safe placement
for [C.E.] in their care. The entire record does support, by clear and
convincing evidence, a finding that there is no likelihood those circumstances
will change in the foreseeable future or ever. So found.
***
13
Unfortunately, notwithstanding [the Department’s] efforts and Father’s
relative compliance with service agreement requirements, Father’s senior
housing that excludes [C.E.] from living there has not changed, and has no
likely prospect of changing. [C.E.] is not permitted by applicable regulations
to be legally resident [sic] in Father’s apartment, by clear and convincing
evidence, indeed undisputed evidence, on that issue. Father is not shown by
clear and convincing evidence to be an unfit parent on this record—but the
Court does find it more likely than not Father is unable—unfit to parent
[C.E.] Additionally, the Exceptional Circumstances of his lacking housing
and Father’s clear dependence on Mother for daycare while he is employed,
coupled with the additional Exceptional Circumstances found below,
convince this Court that it is in C.E.’s best interest for the permanency plan
to be changed to custody and guardianship to [Mr. and Ms. B.] without
termination of parental rights.
***
Neither parent has contributed support for [C.E.’s] care and maintenance.
Neither parent has displayed in visitation essential safe parenting skills—
including but not limited to mirroring, patience, and affirmation—that are
needed by [C.E.] particularly in response to his now presenting possible
autism spectrum behaviors, seizure disorder, and speech development
delays.
[Mr. and Ms. B.] provide [C.E.] safe stability in their care; in sharp contrast
Mother’s erratic, angry, raging behaviors and stress dysregulation, and
Father’s absence (employment schedule) would be a profoundly unstable
emotional environment for [C.E.].
Based on these findings, the juvenile court determined that it was in C.E.’s best
interest to place C.E. in a guardianship with his extended family without terminating the
parental rights of either parent.
After noting timely appeals to the Court of Special Appeals, C.E. and the
Department filed separate petitions for writ of certiorari, which this Court granted on
February 5, 2018. Together, C.E. and the Department collectively pose the following five
questions before this Court:
14
1. Whether a CINA child has a protected interest in achieving a timely
permanency plan of adoption that transcends his parents’ right to raise him,
where the three (3) year old child has resided in the same relatives’ home
since birth and where the trial court found, by clear and convincing evidence,
that reunification is “unachievable . . . in the foreseeable future”?
2. Whether it is error of law for a court to change a CINA child’s permanency
plan in a [g]uardianship proceeding conducted pursuant to [FL] § 5-323?
3. Whether the court’s application of its findings of exceptional circumstances
to justify custody and guardianship to relatives instead of using the
exceptional circumstances to support a grant of guardianship, was an error of
law in contravention of the statute’s clear preference for adoption over
custody and guardianship?
4. Did the juvenile court err when it failed to find that Father was unfit to remain
C.E.’s legal father in light of its finding, by clear and convincing evidence,
that there was no likelihood that Father would ever be able to safely care for
C.E.?
5. Did the juvenile court err as a matter of law in its exceptional circumstances
analysis, by elevating an incidental “parental” relationship over C.E.’s best
interests in achieving the permanence afforded by adoption?
This Court heard oral argument on June 1, 2018 and an opinion was issued on
August 13, 2018. Our opinion affirmed the juvenile court’s findings as to Father, but
reversed the juvenile court’s findings as to the Mother, concluding “it was error for the
juvenile court to deny termination of Mother’s parental rights.” On August 24, 2018, the
Department, C.E., and the Mother filed a Motion for Reconsideration pursuant to Maryland
Rule 8-605. The Department and C.E. argued this Court could not order the termination
of only one parent’s parental rights. Mother also requested that this Court reconsider its
15
Opinion and affirm the judgment of the juvenile court.13 In a reply, the Father adopted and
joined the Mother’s motion.
By Order on December 3, 2018, this Court withdrew its opinion and ordered
supplemental briefing and additional argument on a single issue: “Whether the parental
rights of both parents must be terminated to grant guardianship under FL §§ 5-323(b) and
5-325(a)(1), [or] whether the termination of the parental rights of only one parent is
required.” In re Adoption/Guardianship of C.E., No. 77, Sept. Term, 2017, 2018 WL
6288264 (Md. Ct. of App. Dec. 3, 2018). This Court heard oral argument on that
supplemental issue on March 1, 2019.
After consideration of the issue on reargument, we recognize that our current
statutory scheme requires the termination of both parent’s parental rights. There are only
three possible scenarios that may culminate in a guardianship pursuant to Title 5, Subtitle
3 of the Family Law Article: (1) both parents consent, (2) one parent consents, and the
juvenile court terminates the parental rights of the other parent; or (3) neither parent
consents, and the juvenile court terminates the rights of both parents. When neither party
consents and where a local department of social services files a petition for guardianship,
a juvenile court only has two options: (1) to either grant the petition and terminate both
parents’ rights; or (2) to deny the petition and refrain from terminating either parents’
rights. The juvenile court’s judgment is comprised only of the grant or the denial of the
13
Mother also agreed with the Department and C.E. that this Court could not terminate the
rights of a single parent.
16
petition for guardianship. Where a juvenile court denies a petition for guardianship, the
juvenile court’s judgment is wholly in the parents’ favor—even if the juvenile court finds
that one parent is unfit. Therefore, we erred in our now withdrawn opinion in which we
terminated the Mother’s parental rights and kept the Father’s parental rights intact.
Upon reconsideration of all of the issues before us, and for the reasons stated below,
we conclude that in order to achieve the best interest of C.E. and to provide sufficient
permanency for him, it was an abuse of discretion for the juvenile court to decline to
terminate Father’s parental rights when the juvenile court determined that based on the
factors present, Father was unable to ever safely care for C.E. Furthermore, while not
necessary for a juvenile court to find if both parents are unfit, we also conclude that there
was clear and convincing evidence of an exceptional circumstance that would warrant the
termination of father’s parental rights in this matter. Finally, the juvenile court committed
an error of law when it changed C.E.’s CINA permanency plan during the termination of
parental rights hearing conducted pursuant to FL § 5-323 in a single order. Accordingly,
we vacate the judgment of the juvenile court and remand for further proceedings consistent
with this opinion.
Standard of Review
“Maryland appellate courts apply three different but interrelated standards of
review” when reviewing a juvenile court’s decisions at the conclusion of a termination of
parental rights proceeding. In re Adoption/Guardianship of Cadence B., 417 Md. 146, 155
(2010).
17
When 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
some legal principles and based upon factual findings that are not clearly
erroneous, the [court’s] decision should be disturbed only if there has been a
clear abuse of discretion.
In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 (2010) (alteration in original)
(quoting In re Adoption/Guardianship of Victor A., 386 Md. 288, 297 (2005)).
This Court is cognizant of the fact that: “[q]uestions within the discretion of the trial
court are much better decided by the trial judges than by appellate courts, and the decisions
of such judges should only be disturbed where it is apparent that some serious error or
abuse of discretion or autocratic action has occurred.” Cadence B., 417 Md. at 155 (quoting
In re Yve S., 373 Md. 551, 583–84 (2003)). Legal conclusions of unfitness and exceptional
circumstances are reviewed without deference. In reviewing whether the juvenile court
abused its discretion, we are aware that juvenile courts must apply a statutory termination
of parental rights directive to factual scenarios that are far from clear. We are mindful that
“to be reversed the decision under consideration has to be well removed from any center
mark imagined by the reviewing court and beyond the fringe of what the court deems
minimally acceptable.” Id. at 155–56 (quoting Yve S., 373 Md. at 583–84).
Discussion
The Termination of Parental Rights Process
Parents have a fundamental right under the Fourteenth Amendment of the United
States Constitution to “make decisions concerning the care, custody, and control of their
18
children.” Troxel v. Granville, 530 U.S. 57, 66 (2000). However, this right is not absolute.
When it is determined that a parent cannot adequately care for a child, and efforts to reunify
the parent and child have failed, the State may intercede and petition for guardianship of
the child pursuant to its parens patriae authority. In re Najasha B., 409 Md. 20, 33 (2009)
(quoting In re Mark M., 365 Md. 687, 705–06 (2001) (“The State of Maryland has a parens
patriae ‘interest in caring for those, such as minors, who cannot care for themselves’ and
‘the child’s welfare is a consideration that is of transcendent importance when the child
might . . . be in jeopardy.’”). The grant of guardianship terminates the existing parental
relationship and transfers to the State the parental rights that emanate from a parental
relationship. In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 496 (2007).
Ideally, the State will re-transfer the parental rights to an adoptive family. Id.
In Maryland, Title 5 subtitle 3 of the Family Law Article governs guardianship and
adoption of children in need of assistance. The expressed statutory purpose of the subtitle
is to:
(1) timely provide permanent and safe homes for children consistent with
their best interests;
(2) protect children from unnecessary separation from their parents;
(3) ensure adoption only by individuals fit for the responsibility;
(4) protect parents from making hurried or ill-considered agreements to
terminate parental rights;
(5) protect prospective adoptive parents by giving them information about
children and their backgrounds; and
(6) protect adoptive parents from future disturbances of their relationships
with children by former parents.
19
FL § 5-303(b). These express purposes illustrate the inherent tension in any termination
of parental rights matter—to provide a child with permanency yet protect the parents from
a hasty termination of their rights.
The guardianship proceeding commences when the Department files a termination
of parental rights petition. FL § 5-313. A petition is required unless each parent consents
to termination. In re Adoption/Guardianship of Jayden G., 433 Md. 50, 56 (2013)
(citations omitted). After a hearing14, a juvenile court has the authority to terminate
parental rights upon a finding of clear and convincing evidence that (1) the parent is unfit
to remain in the parental relationship with the child or (2) exceptional circumstances exist
that would make continuation of the relationship detrimental to the child’s best interest.
FL § 5-323. In determining whether to terminate parental rights, “a juvenile court shall
give primary consideration to the health and safety of the child and consideration to all
other factors needed to determine whether terminating a parent’s rights is in the child’s
best interests[.]” FL § 5-323(d).
The juvenile court’s inquiry is different from that of a custody case. The relevant
question in a TPR proceeding is whether the parent is unfit to continue the parental
relationship or whether there are exceptional circumstances that make the continued
parental relationship detrimental to the child’s best interest. In re Adoption/Guardianship
of H.W., 460 Md. 201, 217 (2018) (emphasis added). This is different from the custody
14
Hearings are conducted pursuant to FL § 5-318
20
analysis in which the court is looking at whether the custodial arrangement is in the best
interest of the child. Id. (emphasis added).
In acknowledgment of the important rights at stake, we have previously described
three elements of heightened protection provided to parents in a TPR proceeding. See In
re Adoption/Guardianship of Rashawn H., 402 Md. 477, 498 (2007). First, we have
recognized that there is the “presumption that the interest of the child is best served by
maintaining the parental relationship, a presumption that may be rebutted only by a
showing that the parent is either unfit or that exceptional circumstances exist that would
make the continued relationship detrimental to the child’s best interest.” Id. at 498.
Second, this presumption can only be overcome if the State establishes by clear and
convincing evidence of unfitness or exceptional circumstances to justify a TPR. Id. at 499.
This is a heavier burden than the preponderance of evidence standard utilized in a standard
child custody case. Id. Third, the General Assembly provided factors that the juvenile
court must expressly consider in determining whether termination is in the child’s best
interest. Id. While a juvenile court is permitted to consider additional factors, the statutory
factors are intended to provide the basis for any termination of parental rights.
The requisite factors are codified in FL § 5-323(d). FL § 5-323(d) is divided into
four subparagraphs of factors that the court must use to assess both unfitness and
exceptional circumstances. Maryland’s guardianship statute does not define parental
unfitness or exceptional circumstances. However, the existing statutory scheme is the
appropriate mechanism for the evaluation of parental fitness or the kinds of exceptional
circumstances that would suffice to rebut the presumption for continuing the parental
21
relationship and justify the termination of that relationship. In re Adoption/Guardianship
of Amber R., 417 Md. 701, 715, (2011); In re Adoption/Guardianship of Ta’Niya C., 417
Md. 90, 104 (2010) (“[T]he same factors that a court uses to determine whether termination
of parental rights is in the child’s best interest under the TPR statute equally serve to
determine whether exceptional circumstances exist.”); Rashawn H., 402 Md. at 499.
The four subparagraphs of FL § 5-323(d) are divided by topic and include
consideration of: (1) the services that the Department has offered to assist in achieving
reunification of the child with the parents; (2) the results of the parent’s effort to adjust
their behaviors so that the child can return home; (3) the existence and severity of
aggravating circumstances; (4) the child’s emotional ties, feelings, and adjustment to
community and placement and the child’s general well-being.15 Ultimately, these factors
15
Specifically, FL § 5-323(d) includes:
(1)(i) all services offered to the parent before the child's placement, whether offered by a
local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to
facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled their
obligations under a social services agreement, if any;
(2) the results of the parent's effort to adjust the parent's circumstances, condition, or
conduct to make it in the child's best interests for the child to be returned to the parent's
home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is committed; and
3. if feasible, the child's caregiver;
(ii) the parent's contribution to a reasonable part of the child's care and support, if
the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently unable
to care for the child's immediate and ongoing physical or psychological needs for
long periods of time; and
22
(iv) whether additional services would be likely to bring about a lasting parental
adjustment so that the child could be returned to the parent within an ascertainable
time not to exceed 18 months from the date of placement unless the juvenile court
makes a specific finding that it is in the child's best interests to extend the time for
a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a minor and the seriousness of
the abuse or neglect;
(ii) 1. A. on admission to a hospital for the child's delivery, the mother tested
positive for a drug as evidenced by a positive toxicology test; or B. upon the birth
of the child, the child tested positive for a drug as evidenced by a positive
toxicology test; and
2. the mother refused the level of drug treatment recommended by a qualified
addictions specialist, as defined in § 5-1201 of this title, or by a physician or
psychologist, as defined in the Health Occupations Article;
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any court of the United States,
of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to commit a crime described
in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the child; and
(4)(i) the child's emotional ties with and feelings toward the child's parents, the child's
siblings, and others who may affect the child's best interests significantly;
(ii) the child's adjustment to:
1. community;
2. home;
3. placement; and
4. school;
(iii) the child's feelings about severance of the parent-child
relationship; and
(iv) the likely impact of terminating parental rights on the child's
well-being.
23
seek to assist the juvenile court in determining “whether the parent is, or within a
reasonable time will be, able to care for the child in a way that does not endanger the child’s
welfare.” Rashawn H., 402 Md. at 500. This is the appropriate inquiry because courts are
required to afford priority to the health and safety of the child. FL § 5-323. As such, the
best interest of the child is the overarching standard in TPR proceedings. In re
Adoption/Guardianship of Cadence B., 417 Md. 146, 157 (2010) (citing Ta’Niya C., 417
Md. at 90) (“[T]he child’s best interest remains the ‘transcendent standard in adoption,
third-party custody cases, and TPR proceedings.’”).
Each TPR proceeding is a factual inquiry, requiring the juvenile court to render
specific findings of fact to justify termination of a parent’s parental rights. A juvenile court
must specifically examine and consider each statutory factor. “In addition to statutory
factors, courts may consider such parental characteristics as age, stability, and the capacity
and interest of a parent to provide for the emotional, social, moral, material, and
educational needs of the child.” In re Adoption/Guardianship of H.W., 460 Md. 201, 220
(2018) (cleaned up) (quoting Pastore v. Sharp, 81 Md. App. 314, 320 (1989)).
“[T]ermination is an alternative of last resort, and is not to be taken lightly.” In re
Adoption/Guardianship of Amber R., 417 Md. 701, 715 (2011)).
In sum, in a termination of parental rights hearing, it is the role of the juvenile court:
[T]o 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
24
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.
H.W., 460 Md. at 219 (emphasis in original) (quoting Rashawn H., 402 Md. at 501).
The Juvenile Court’s Findings: Termination of the Father’s Parental Rights
At the onset, we note it is difficult to discern from the juvenile court’s order which
factors were found by a preponderance of the evidence and which factors were found by
clear and convincing evidence as to Father. Further, the juvenile court never fully
considered the exceptional circumstances prong as a separate legal conclusion from the
unfitness prong. Rather, the juvenile court used the exceptional circumstances prong in
conjunction with unfitness to examine specific circumstances such as the parental bond or
the Father’s relationship with Mother. This was erroneous because the exceptional
circumstances prong is a separate legal conclusion. Thus, the prong requires a separate
inquiry apart from unfitness. If a juvenile court deems a parent fit, then the juvenile court
is required to examine whether any exceptional circumstances exist that would make a
continuation of the parental relationship detrimental to the best interests of the child.
In examining whether an exceptional circumstance exists, a juvenile court should
look to whether there is a reason to terminate the parental relationship because the best
interest of the child is not served through continuing the parental relationship. Here, the
juvenile court utilized this statutory basis as a shield to protect against the termination of
parental rights, not as a potential separate legal conclusion apart from unfitness. This was
25
in error because, as we have previously stated, unfitness and exceptional circumstances are
two separate inquiries.
In reviewing the remainder of the juvenile court’s order, we are able to discern that
the juvenile court found: (1) that the Department had made reasonable efforts to enable
reunification; (2) that neither parent exhibits “essential safe parenting skills;” (3) that
Father lacked housing in which C.E. could reside; (4) that, on the whole, neither parent had
accomplished a material change to the circumstances rendering C.E. a CINA; (5) that C.E.
has fully adjusted to his placement with Mr. and Ms. B.; (6) that neither parent had
contributed support for C.E.’s care and maintenance; and (7) that reunification with the
natural parents is unachievable within the foreseeable future, if ever. It is also clear that
the Court’s sole factual finding that weighed in favor of continuation of Father’s parental
rights was a determination that C.E. knew and was attached to Father. In sum, as we
understand the juvenile court’s order, almost every other factor delineated under FL § 5-
323(d) was found against Father with the exception of the finding that there is an
“attachment” between Father and C.E.
The Department and C.E. assert that in declining to terminate Father’s parental
rights, the juvenile court failed to give appropriate consideration to the safety and welfare
of C.E. Further, the juvenile court ignored one of the goals of subtitle three, permanency,
and failed to afford appropriate weight to the question of “whether the parent is, or within
a reasonable time will be, able to care for the child in a way that does not endanger the
child’s welfare.” The Department and C.E. argue that the juvenile court afforded too much
credit to the relationship between C.E. and his father in lieu of giving proper credit to the
26
other statutory factors. C.E. and the Department contend that the juvenile court properly
found Mother unfit by clear and convincing evidence. Now, the Department and C.E.
assert that there was ample evidence to find that Father was unfit or that exceptional
circumstances existed by clear and convincing evidence to terminate his parental rights as
well. We agree.
Permanency and Unfitness
A CINA child’s statutory right to permanency is derived from Maryland’s
incorporation of two federal statutes: the Adoption Assistance and Child Welfare Act of
1980 (hereinafter “AACWA”), Public Law 96-272, codified at 42 U.S.C. 670 (1988) and
the Adoption and Safe Families Act of 1997 (“ASFA”), Public Law 105-89, codified at 42
U.S.C. Chapter 7, subchapter IV. “ASFA’s emphasis on legally secure permanent
placement is meant to provide the child with psychological stability and a sense of
belonging and to limit the likelihood of future disruption of the permanent relationship.”
LaShanda Taylor Adams, Backward Progress Towards Reinstating Parental Rights, 41
N.Y.U. Rev. L. & Soc. Change 507, 515 (2017).
The overriding theme of both the federal and state legislation is that a child
should have permanency in his or her life. The valid premise is that it is in
the child’s best interest to be placed in a permanent home and to spend as
little time as possible in foster care.
In re Adoption/Guardianship of Jayden G., 433 Md. 50, 84 (2013) (citing In re
Adoption/Guardianship No. 10941, 335 Md. 99, 106 (1994)). “Permanency for children
means having ‘constant, loving parents,’ knowing ‘that their homes will always be their
27
home; that their brothers and sisters will always be near; and that their neighborhoods and
schools are familiar places.’” Id. at 82–83.
The controlling factor in a termination of parental rights proceeding is not the
natural parents’ interest in raising the child or the bond between the parent and child, but
rather “what best serves the interests of the child. . . . in all cases where the interests of the
child are in jeopardy the paramount consideration is what will best promote the child’s
welfare, a consideration that is of ‘transcendent importance.’” In re
Adoption/Guardianship No. A91-71A, 334 Md. 538, 561 (1994) (cleaned up). In this case,
the juvenile court overemphasized the bond between the Father and the child and failed to
properly consider permanency and the ability of the father to successfully parent C.E in a
stable environment. As such, this case is distinguishable from In re
Adoption/Guardianship of Alonza D., in which we found the parental relationship should
not be severed when the fitness of the father was not at issue and there were no compelling
exceptional circumstances. 412 Md. 442, 443 (2010).
In Alonza D., the father appealed the termination of his parental rights. Id. The
juvenile court considered the father fit, but ultimately concluded that exceptional
circumstances—namely the six years the children were out of the care of their father during
which the children developed a strong bond with their foster mother—warranted
termination of his parental rights. Id. at 448–49. In weighing exceptional circumstances,
the juvenile court did not find that a continued relationship with the father would be
detrimental to the children or that he was currently unfit. Id. The father at the time of the
hearing had secured housing and had achieved stability throughout other areas of his life.
28
On review we held “[p]assage of time, without explicit findings that the continued
relationship with [the father] would prove detrimental to the best interests of the children,
is not sufficient to constitute exceptional circumstances.” Id. at 463.
In the matter before us, the record is replete with instances where a continued
relationship with Father would cause detriment to C.E.’s health and welfare, especially
with the extra care necessary for C.E.’s needs. Additionally, while the father in Alonza D.
was undoubtedly fit, the same cannot be said of C.E.’s Father. Father has failed to secure
housing that is suitable for C.E. and there are numerous concerns about Father sustaining
energy levels sufficient to care for C.E. The juvenile court should have found that a
continued relationship with Father would be detrimental to C.E.’s health and welfare. All
of the statutory factors deserve equal consideration when weighing unfitness. Father and
C.E.’s relationship is only one factor to consider during the juvenile court’s evaluation.
Here, the juvenile court impermissibly elevated the parent-child relationship as a factor
that surpasses all others.
As with the parent-child relationship, we decline to elevate permanency above all
other factors as the Department and C.E. requested. Permanency, like all the factors the
General Assembly codified, is one aspect to consider in a TPR proceeding. However, we
do note that in this case, the juvenile court erred in its assessment of permanency.
In reviewing permanency, we use In re Adoption/Guardianship No. 10941 as
guidance. 335 Md. 99 (1994). In No. 10941, this Court reversed the juvenile court’s
findings that it was not necessary to terminate the mother’s parental rights to achieve
29
permanency because the child could remain in the custody of his grandparents. Id. at 120.
Specifically, the juvenile court found:
The [c]ourt finds that it would be contrary to the Child’s best interest to be
removed from the custody of the maternal grandparents. The [c]ourt further
finds that continued placement of the Child with the Grandparent’s [sic] does
not require that the Mother’s parental rights be terminated. The Child is
presently in a stable environment with his grandparents and this environment
provides him with the security and sense of belonging to a family that is the
goal of adoption.
Id. at 119–20. This Court determined “[o]nly termination of parental rights and a
subsequent permanent placement, such as adoption sought by the grandparents here, can
provide [the child] with the permanency he needs and the Legislature intended.” Id.
Here, the juvenile court attempted to bypass the lack of permanency afforded to the
child in No. 10941. In conjunction with declining to terminate Father and Mother’s
parental rights, the juvenile court altered C.E.’s permanency plan in the CINA matter to
custody and guardianship with Mr. and Ms. B. We will address the merits of this approach
below but note here that the remedy deprived C.E. of the preferred permanency status as
provided by statute.
Custody and guardianship with a relative is considered a permanent placement for
a CINA child. Pursuant to CJP § 3-819.2(c), a child’s placement with a relative for custody
and guardianship terminates the legal obligations and responsibilities of the Department.
In considering the appropriate permanent placement, juvenile courts are guided by the
hierarchy of permanency plans codified in CJP § 3-823(e)(1) and FL § 5-525. Both statutes
prioritize placement options in descending order: 1) reunification with the child’s parent or
guardian; 2) placement with a relative for adoption; 3) placement with a relative for custody
30
and guardianship; 4) adoption by a nonrelative; and 5) custody and guardianship by a
nonrelative. Here, the juvenile court ignored the order of priority as well as our line of
cases holding that when reunification with the child’s parents cannot be achieved, adoption
is the next best option. See No. 10941, 335 Md. at 120–21.16
Custody and guardianship does not afford C.E. with the same permanency as
adoption with a relative. See In re Caya B., 153 Md. App. 63, 78 (2003) (“Parental rights
are not terminated in such a situation: the parents are free at any time to petition an
appropriate court of equity for a change in custody, guardianship, or visitation.”). As in
No. 10941, while there is no doubt that Mr. and Ms. B. currently desire to adopt C.E., if
they are not his legal parents, they may decide later, for whatever reason, that they are no
longer able to care for C.E. 335 Md. 99 at 120. Especially with the additional
administrative burdens that come with custody and guardianship as opposed to an adoption,
custody and guardianship with Mr. and Ms. B. is not the preferred permanency solution.17
“[T]ermination of parental rights is the necessary next step when reunion with the natural
parent is not possible.” No. 10941, 335 Md. at 120–21. Here, the juvenile court found that
Father could never safely care for C.E., and erred when not considering the effect of his
16
There may be instances when adoption is not the most appropriate permanency goal and
a long-term placement is more appropriate. See In re Adoption/Guardianship of Victor A.,
386 Md. 288 (2005). We do not believe the record reflects that the juvenile court was
presented with any compelling reason to continue long-term placement over the statutory
preference in this matter.
17
For example, FL § 9-104 states: “Unless otherwise ordered by a court, access to medical,
dental, and educational records concerning the child may not be denied to a parent because
the parent does not have physical custody of the child.”
31
inability to care for C.E. on C.E.’s permanency and how that relates to Father’s unfitness.
Given these various factors, the trial court abused its discretion in declining to terminate
father’s parental rights under the unfitness prong.
Exceptional Circumstances
Even assuming arguendo that Father was fit, there was also an important exceptional
circumstance that the juvenile court failed to give sufficient consideration and that would
have warranted the termination of parental rights in this matter. When the juvenile court
combined the fitness and exceptional circumstances analysis, the juvenile court did not
fully examine this important statutory prong.
In reviewing the exceptional circumstances basis, we are concerned with the
continuing relationship between Father and Mother. Father testified that he refuses to sever
his relationship with Mother, that he will continue to live with Mother, and that he will rely
solely on her for providing childcare to C.E. while he is at work. Further, Father refuses
to acknowledge Mother’s mental health conditions despite the fact that Mother is
undoubtedly unfit to care or be left alone with C.E. Father has adopted Mother’s mentality
that the State is impermissibly seeking to impede on their rights to raise C.E. These facts
endanger C.E.’s health and welfare.
We found cases similar to the case sub judice in our sister jurisdictions. In State ex
rel. Dept. of Human Services v. R.O.W., the Oregon intermediate appellate court reviewed
a termination proceeding and concluded that there was clear and convincing evidence that
the mother was unfit and that there was clear and convincing evidence the father was unfit
32
because the father refused to make the necessary adjustments to protect their minor child
from the dangers of the mother’s care. 215 Or. App. 83, 85 (2007).
In R.O.W., mother had cognitive limitations that prevented her from learning how
to care for or appropriately respond to her child. Id. Father had some alcohol, drug, and
mental health issues that were not disqualifying on their own to declare him unfit. Id. at
100. However, the court concluded termination of his parental rights was warranted
because those factors, in addition to his failure to obtain and maintain suitable housing and
his failure to recognize the danger the mother posed to the child, “are directly and seriously
detrimental to [the child] when considered in the context of his relationship with mother.”
Id. at 100. The Court recognized:
Although father’s conduct or conditions might not support termination when
considered in isolation, they are directly and seriously detrimental to [the
child] when considered in the context of his relationship with mother.
Father’s lack of effort to obtain and maintain a stable and suitable living
situation—namely, one in which [the child] will be protected from the
dangers she would face in mother’s care—renders him unfit to parent [the
child]. Father historically has failed to recognize the importance of ensuring
that mother is constantly supervised when [the child] is in her care and has
demonstrated an unwillingness—and inability—to protect [the child] from
mother.
Id. at 100–01.
Further, in New Jersey Division of Youth & Family Services v. M.M., New Jersey’s
highest court reviewed whether the trial court properly terminated a father’s parental rights
when “the court concluded that the son was at risk because of the mother’s destabilizing
influence on the home.” 189 N.J. 261, 267 (2007). The court affirmed the trial court
finding that the “father did not establish a safe and stable environment for his son.” Id.
33
Mother was not capable of caring for her child. Id. Father, on the other hand, had overcome
his troubled past and was dedicated to raising his son. Id. Despite the father’s fitness, the
court determined that “although the father [did] not pose a direct threat to his son, the
evidence demonstrate[d] that he did not provide for the son’s special needs or mitigate the
effects of the harmful environment in which he intends to raise the son.” Id. at 267.
The Court, “mindful of the mother’s limitations” stated, “it is the father who
established the dangerous situation at home, who maintains those conditions, and who is
unable or unwilling to substantially alter those conditions.” Id. at 282. Further the Father
did not seem to understand the limits of his son or made excuses for the behavior of the
mother. Id. at 284. In support of their conclusion, the Court noted:
Parental rights are individual in nature and due process requires that fitness
be evaluated on an individual basis. That said, the conduct of one parent can
be relevant to an evaluation of the parental fitness of another parent. . . . The
crucial inquiries are whether the parent’s association with others causes harm
to the child and whether the parent is unable or unwilling to provide a safe
and stable home.
Id. at 289–90 (cleaned up). The mother’s presence in the home was pertinent to the inquiry
of whether father was placing the child into a risk of harm. Id. Therefore, the termination
of the father’s rights was not in error.
Similar to both R.O.W. and M.M., Father has not shown he can be a placement
resource for C.E. He refuses to sever his relationship with Mother and seeks to place C.E.
exclusively in her care while he works. He fails to recognize the threat Mother is to C.E.’s
safety and welfare. He does not acknowledge that Mother has any mental illness despite
her formal diagnosis and lengthy history with the Department. At no point in the record
34
has Mother proven that she is capable of safely caring for C.E., thus C.E. is placed in danger
whenever in her care.18 Furthermore, he has refused to obtain a residence in which C.E.
may permanently reside. In reviewing these factors, the trial court abused its discretion in
declining to find exceptional circumstances to terminate the Father’s parental rights.
Father’s continued parental relationship with C.E. is detrimental to C.E.’s safety and
welfare. Thus, since his parents are not a placement resource, the juvenile court should
have looked to the next best thing—termination of parental rights to permit guardianship
and adoption.
Additional Action during a Termination of Parental Rights Hearing
All parties are in apparent agreement that the juvenile court erred in addressing the
change in C.E.’s permanency plan in his CINA case in the same order denying the
Department’s petition to terminate parental rights. Father maintains, however, that any
error is harmless, because the error could be rectified by separating the order into two
distinct orders. FL § 5-324(a) provides that, in a separate order accompanying an order
denying guardianship, the juvenile court shall include any order under Title 3, Subtitle 8
18
Many cases of mental illness can be treated and managed and need not be cause for
termination of parental rights. In every case, the Department should work with parents
with mental illness to provide resources to seek reunification of the parent and child first.
Here, however, Mother has an extensive history of mental illness in which she refuses to
seek appropriate treatment and has a history of lashing out and placing her children in
danger. Mother has shown time and time again that she is incapable of caring for her
children. Like both cases in our sister jurisdictions, the fact that the child is not sufficiently
protected from the effects of the mental illness, not the mental illness itself, may indicate
termination of the parental rights is the only option.
35
of the Courts and Judicial Proceedings Article that is in the child’s best interests, e.g., an
order with respect to a change in permanency plan.
Here, the juvenile court did not comply with this directive because it did not issue a
separate order changing C.E.’s permanency plan to long-term relative guardianship. As
such, the juvenile court’s opinion/order raises doubt as to whether the juvenile court
reached its conclusions regarding the termination of parental rights and a change in the
permanency plan in the proper manner—i.e. whether the two related but distinctly different
concepts were afforded independent consideration.
Reading the juvenile court’s opinion/order, it is difficult to differentiate the FL § 5-
323 termination of parental rights analysis from the analysis of the change of permanency
plan. A striking example of this lack of clarity is the juvenile court’s interwoven analysis
of issues upon both a “more likely than not” or preponderance of the evidence standard,
and a clear and convincing evidence standard. In another instance, the juvenile court
concluded that exceptional circumstances required a change of permanency plan when
parental unfitness or exceptional circumstances are required to terminate parental rights.
To be sure, not every instance of procedural non-compliance constitutes reversible error.
A juvenile court’s failure to issue separate opinions/orders may not, in and of itself, be
sufficient grounds for reversal. In this instance, however, it is not possible to conclude that
the juvenile court conducted a separate analysis with respect to the termination of parental
rights and a change in permanency plan. As we are remanding this matter for further
proceedings, the juvenile court will have the opportunity to remedy this error.
36
We also note that even though the juvenile court certainly had the authority to alter
the CINA child’s permanency plan during a TPR hearing, a best practice for juvenile courts
is to separate the proceedings into two hearings. Separate proceedings are especially
important in difficult factual situations such as this one. If a juvenile court denies the TPR
proceeding, a permanency placement review hearing should be scheduled in the original
CINA case on a separate date. This is optimal because a CINA permanency hearing and a
TPR hearing are seeking to resolve related, but, ultimately distinct issues. See In re
Adoption/Guardianship of Cross H., 200 Md. App. 142, 152 (2011) (noting “the
appropriate focus of the TPR hearing was not the potential suitability of the parental
grandmother as a placement for [the child]—as this was an issue properly addressed in the
CINA case—but rather, the fitness of [Mother] and [Father] as parents”).
The purpose of CINA proceedings is “[t]o provide for the care, protection, safety,
and mental and physical development” of CINA children; “conserve and strengthen the
child’s family ties;” “remedy the circumstances that required the court’s intervention;” and
“achieve a timely, permanent placement for the child consistent with the child’s best
interests.” In re Adoption/Guardianship of Jayden G., 433 Md. 50, 75 (2013) (citing CJP
§ 3-802(a)). A TPR, conversely, is initiated once the Department is seeking to terminate
the existing parental relationship. Id. In addition to separate purposes, TPR and CINA
proceedings consider different factors and have different evidentiary burdens. Id. at 77.
In this matter, separate proceedings would have allowed Mr. and Ms. B to consider
whether they wished to continue as C.E.’s guardian rather than as an adoptive resource.
Further, the juvenile court could have determined the extent to which Mother and Father
37
were granted visitation and other aspect of the custody and guardianship. We also believe
this would have also likely remedied many of the issues with the juvenile court’s order that
we have outlined above. Therefore, we recommend separate proceedings in the future.
CONCLUSION
Overall, based on the juvenile court’s order, it is not possible to affirm the juvenile
court’s decision declining to terminate Father’s parental rights. We are concerned with the
court’s findings as specified above and with the lack of clear articulation of the appropriate
burdens of proof. The finding that Father was not unfit is contradicted by the juvenile
court’s finding that reunification with either Father or Mother was not attainable within the
foreseeable future, if ever. Further, exceptional circumstances existed, specifically the
Father’s reliance on the Mother for housing and childcare for C.E., that would warrant
termination of Father’s parental rights.
In regard to the order, although the juvenile court purported to make this finding by
a preponderance of the evidence, it is unclear why the juvenile court would be using a
preponderance of the evidence standard in assessing the termination of Father’s parental
rights. It is impossible to conclude that the juvenile court’s concurrent consideration of a
change in the permanency plan did not affect the ultimate disposition of the termination of
parental rights hearing. Therefore, we shall direct that the judgment of the Circuit Court
38
for Baltimore City, sitting as a juvenile court, be vacated and that this case be remanded
for further proceedings consistent with this opinion.19
ORDER OF THE CIRCUIT COURT
FOR BALTIMORE CITY, SITTING AS
A JUVENILE COURT, IS VACATED.
CASE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID
BY APPELLANTS.
19
We vacate the August 13, 2018 opinion that we withdrew by Order of this Court on
December 3, 2018. Thus we leave intact the juvenile court’s finding that Mother is unfit
and on remand, the juvenile court may take any appropriate action with respect to the
termination of Mother’s parental rights after further proceedings consistent with this
opinion with respect to Father.
39