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Won the case, lost the children

It’s one thing to convince a court that your children should not have been placed in foster care. It’s quite another to get them back.

Saying the children’s best interests come first, the Court of Appeals on Thursday affirmed a decision by a juvenile court judge, who found the two daughters of Sharee S. had developed a loving and lasting bond with their foster parents and should remain in their care.

“When a parent has been deprived of custody of a child for a period of time as a result of an order that has been reversed, it is arguably more fair to the parent to disregard — or significantly discount consideration of — information related to that period in subsequent proceedings,” Judge Robert N. McDonald wrote in the Court of Appeals’ majority opinion. “But the best interests of the child do not permit the juvenile court to ignore the reality of a child’s life. In balancing fairness to the parent and fulfilling the needs of the child, the child prevails.”

Sharee S. had argued that the juvenile court should have given little, if any, weight to the nearly 12 months the girls were in foster care before the order was overturned.

The top court seemed to agree — up to a point.

The “time and improvement in foster care will normally be of diminished value” when the order is overturned, McDonald wrote; and the bond between children and their foster parents “cannot, by itself, justify changing a permanency plan from reunification with the mother or father.”

However, findings of neglect after the case was sent back to the juvenile court also pointed to the need to keep the sisters in foster care, the court held.

Years of supervision

The girls first came to the attention of the Montgomery County Department of Health and Human Services in September 2008, amid reports of neglect, including that she had regularly kept the children out of school and had been leaving them alone in the afternoon and on weekends for a month.

That resulted in a series of “safety plans” that allowed the sisters to remain with Sharee S. under the department’s supervision.

The department took the sisters, then about ages 11 and 9, from Sharee S. in February 2011 after the older daughter, Ashley, stopped attending school and the family could not be located for several weeks.

In May 2011, the Montgomery County Circuit Court, sitting as a juvenile court, deemed them children in need of assistance and committed them to the department for placement in foster care.

But that December, the Court of Special Appeals said the juvenile court had made “insufficient findings” to support the decision to put both girls in foster care.

The department moved for a new hearing, and on July 31, 2012, the juvenile court again found that foster care placement was appropriate, based in part on its finding that the mother lacked stable housing.

The court also cited the bond the children had with the foster parents and concerns about the mother’s apparent unwillingness or inability to arrive on time for supervised visitation with the girls. The juvenile court cited at least eight missed visits in which she failed to notify either the department or the children that she was not coming.

The mother sought review by the Court of Special Appeals. But the Court of Appeals, on its own motion, chose to hear the case without it first being reviewed by the intermediate court.

David E. Beller, the department’s counsel, declined to comment on the high court’s decision.

“We’ll let the court’s opinion speak for itself,” said Beller, whose agency moved to have the sisters declared CINA and placed in foster care.

The sisters, through their attorney, sided with the department’s position. Their lawyer, Lindsay Brecher of Maryland’s Legal Aid Bureau Inc., did not return telephone messages seeking comment on the court’s decision.

The mother’s appellate attorney, Assistant Maryland Public Defender Nenutzka C. Villamar, declined to comment on the court’s decision, saying she had not had a chance to review it.

While all seven judges agreed with the result, three of them declined to join McDonald’s opinion and instead wrote concurrences.

Judge Sally D. Adkins criticized as potentially confusing to juvenile court judges the majority opinion’s statement that the “time and improvement in foster care will normally be of diminished value” to a court’s placement decision, saying it would “undermine the entire opinion” and create uncertainty for future cases.

“I do not think that is the result the majority was looking for in holding that ‘the best interests of the child do not permit the juvenile court to ignore the reality of a child’s life’,” Adkins wrote. She was joined by Judge Mary Ellen Barbera.

Chief Judge Bell wrote a separate concurring opinion.

WHAT THE COURT HELD

Case:

In Re: Ashley S. & Caitlyn S., CA No. 4, Sept. Term 2013. Reported. Opinion by McDonald, J. Concurrences by Bell, C.J., and Adkins, J. Argued April 9, 2013. Filed May 30, 2013.

Issue:

Did the juvenile court judge err in considering the bond the children formed in foster care, under a later-invalidated order, as a basis for keeping them in foster care over the mother’s objection?

Holding:

No; “In balancing fairness to the parent and fulfilling the needs of the child, the child prevails.”

Counsel:

Nenutzka C. Villamar for appellant; Leslie Ridgway and Lindsay Brecher for appellees.

RecordFax # 13-0530-00 (56 pages).