Court of Appeals revisits parental rights issue

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ANNAPOLIS — Courts cannot strip parents of their parental rights while they are appealing a judge’s order in the related foster-care case, an attorney for a mother seeking reunification with her son told Maryland’s top court.

Permitting the entry of a termination of a parental rights order forecloses any possibility the parents may have of convincing a court that reunification would be in the child’s best interest, attorney Nenutzka C. Villamar said.

Once parental rights are terminated, the parents lose standing to pursue the appeal, she told the Court of Appeals.

“The parents have the right to make sure the decision below was the right one” by pursuing an appeal, said Villamar, an assistant Maryland public defender. “No procedure is foolproof. The purpose of appellate review is to correct.”

But Assistant Maryland Attorney General Ann M. Sheridan said judges have discretion to conclude that terminating the parents’ rights is in the child’s best interest, even while the foster-care appeal is pending.

Maryland law permits judges to balance “a parent’s fundamental rights and the child’s best interest,” said Sheridan, who was representing the Montgomery County Department of Health and Human Services.

The May 6 arguments came precisely one a week after the court dismissed its grant of certiorari in a similar case that it deemed moot, over a strong and lengthy dissent by Chief Judge Robert M. Bell.

At arguments last week, the judges appeared to be as divided as the attorneys before them.

Judge Sally D. Adkins voiced concern that the children might suffer if their neglectful or abusive parents can retain their rights while they pursue meritless and lengthy appeals.

“Is it necessarily good to cause a child to be in foster-care limbo for a long period of time?” Adkins said.

But Judge Glenn T. Harrell Jr. echoed Villamar’s concern about the possibility of a mother or father losing parental rights just days before an appellate court would have ordered reunification with the child.

“We don’t want to have a system where that will happen,” he said.

On Jan. 31, 2009, the department removed the child from the mother’s custody, citing neglect, and three days later filed a Child in Need of Assistance petition with the Montgomery County Circuit Court. The court granted the petition to place the boy, identified as Jayden G., in foster care.

On May 19, 2011, the circuit court granted the department’s petition to change Jayden G.’s permanency plan to nonrelative adoption by the foster family.

Following that change in the permanency plan, two things happened: The mother appealed, and the department began a separate proceeding to terminate her parental rights. (The TPR proceeding is required before the nonrelative adoption can proceed.)

Montgomery County Circuit Judge Katherine D. Savage granted the TPR motion on Dec. 21, 2011, terminating not only the parental rights but effectively the appeal in the foster-care case.

On Aug. 7, 2012, the Court of Special Appeals upheld Savage’s order in an unreported opinion. The intermediate court rejected the mother’s argument that the TPR proceeding should have been stayed pending her appeal of the placement order.

The mother, identified in court papers as Jennifer S., then sought review by the Court of Appeals. The father, identified as Justin G., did not appeal the TPR order.

At the high court, the attorney for the boy urged the judges to uphold the termination of his mother’s parental rights, saying he is now in a loving and stable home.

“It shouldn’t be Jayden who pays for any procedural mistakes,” said the attorney, Cherie J. Jones, of the Legal Aid Bureau Inc. in Riverdale.

The Court of Appeals did not indicate when it would render a decision in the case, In Re: Adoption/Guardianship of Jayden G., No. 84, September Term 2012.

The case dismissed as moot on April 29 was In Re: Adoption/Guardianship of Cross H., No. 78, September Term 2011. The court heard argument in that case on Jan. 9, 2012.