Opinions – 6/13/13: Maryland Court of Appeals

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Family Law

Children in need of assistance 

BOTTOM LINE: In selecting a permanency plan for a child in need of assistance, a juvenile court may consider information relating to the entire period of the child’s placement even when an appellate decision has reversed an earlier order that was the basis for a portion of the time spent in that placement.

CASE: In re Ashley S. & Caitlyn S., No. 4, Sept. Term, 2013 (filed May 30, 2013) (Judges Bell, Harrell, Battaglia, Greene, Adkins, Barbera & McDONALD). RecordFax No. 13-0530-20, 56 pages.

FACTS: Ashley S. was born to Sharee S. (Ms. S.) on July 8, 1999. Caitlyn S. was born to Ms. S. on February 8, 2008. The two young sisters had been the subject of various reports of neglect by their mother over a period of two years starting in September 2008.

In February 2011, the Montgomery County Department of Health and Human Services (the Department) filed petitions with the circuit court, sitting as a juvenile court, to have the sisters designated as children in need of assistance (CINA). The Department also filed a request for emergency shelter care — i.e., the temporary placement of a child outside of the home before the determination or disposition of CINA status. CJ §3-801(y). The request was granted by the juvenile court. The court placed the children in the temporary care and custody of the Department with limited visitation by Ms. S.

The juvenile court held an adjudicatory proceeding on the CINA petition. The circuit court entered an order finding that the Department had proven the allegations of neglect in its CINA petition. Based on that determination, in May 2011, the court designated both children as CINA and committed them to the Department for placement in foster care. The court established the girls’ permanency plans as reunification with Ms. S.

In November 2011, the Court of Special Appeals affirmed the juvenile court’s determination that Ashley was a CINA, but held that the juvenile court had abused its discretion in determining Caitlyn to be a CINA and in committing both girls to foster care. In accordance with that decision, the juvenile court dismissed the Department’s original CINA petition as to Caitlyn. The Department did not, however, return the children to the custody of Ms. S. Rather, in the belief that the children could not safely return to Ms. S.’s care at that time, the Department filed an emergency motion the next day in Ashley’s CINA case to authorize her continuing placement in foster care. The motion was granted. The Department also filed a new CINA petition with respect to Caitlyn and requested a shelter care order also authorizing her continued placement in foster care.

In February 2012, the juvenile court held hearings to adjudicate Caitlyn’s CINA status and to review Ashley’s placement. The court declared Caitlyn to be a CINA and committed both children to the custody of the Department for placement in foster care. The permanency plan for both girls continued to be reunification with their mother.

In July 2012, the juvenile court held a permanency plan review hearing and interviewed both girls in chambers. Both children favored a change in permanency plan from reunification with Ms. S. to adoption.

Accordingly, on July 31, 2012, the court ordered that the permanency plan for both children be changed from reunification to adoption. Supervised visitation was permitted to continue between Ms. S. and the children.

Prior to argument in the Court of Special Appeals, the Court of Appeals, on its own motion, issued a writ of certiorari to consider whether the juvenile court, in changing the permanency plan for the children to adoption, was entitled to consider the events occurring during the months that the children spent in foster care under the initial court orders that had been reversed by the Court of Special Appeals.

Shortly after the Court issued the writ of certiorari, the juvenile court conducted its six-month review hearing on the girls’ permanency plan. At that time, the juvenile court changed Caitlyn’s permanency plan from adoption to reunification with her father, Fred M., who had recently entered the case. The Department also filed a petition with the juvenile court for termination of Ms. S.’s parental rights, which was dismissed as to Caitlyn, but not as to Ashley.

The Court of Appeals affirmed.

LAW: When a child suffers abuse or neglect or has a developmental or mental disability and lacks a caretaker to give proper attention to his or her needs, a local department of social services may petition the juvenile court for a determination that the child is a CINA. CJ §§3-801(f), 3-809(a). Once the court determines that a child is a CINA, it may leave the child in the child’s current custody; commit the child to the custody of a parent, a relative, or another suitable individual; or commit the child to the custody of the local department of social services or the Department of Health and Mental Hygiene for placement in foster, kinship, group, or residential treatment care. CJ §3-819(b)(1)(iii); FL §§5-501(m), 5-525(b). If the child is committed to the local department for out-of-home placement, the court must hold, within 11 months, a hearing to determine a “permanency plan” for the child. CJ §3-823(b)(1).

A permanency plan may include reunification of the child with the parent or guardian; placing the child with relatives for custody or adoption; custody or adoption by the current foster parent or other approved adoptive family; or another appropriate permanent living arrangement. FL §5-525(f)(2); CJ §3-823(e)(1). In developing a permanency plan, the juvenile court is to give primary consideration to the “best interests of the child.” FL §5-525(f)(1); CJ §3-823(e)(2). The statutes specify certain factors to guide the “best interests” analysis: “(i) the child’s ability to be safe and healthy in the home of the child’s parent; (ii) the child’s attachment and emotional ties to the child’s natural parents and siblings; (iii) the child’s emotional attachment to the child’s current caregiver and caregiver’s family; (iv) the length of time the child has resided with the current caregiver; (v) the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and (vi) the potential harm to the child by remaining in State custody for an excessive period of time.”

The statutory scheme presumes that, “unless there are compelling circumstances to the contrary, the plan should be to work toward reunification, as it is presumed that it is in the best interest of a child to be returned to his or her natural parent.” In re Yve S., 373 Md. 551, 582 (2003). However, a plan other than reunification is appropriate where “weighty” circumstances require such a modification. In re Adoption/Guardianship of Cadence B., 417 Md. 146, 157 (2010).

A review hearing concerning the permanency plan is to be held at least every six months for updates and amendments to the original plan. CJ §3-823(h). The court is to change the permanency plan when it would be in the child’s best interests to do so. CJ §3-823(h)(2)(vi).

Ms. S. argued that the juvenile court, in determining the permanency plans for Ashley and Caitlyn, should not have considered the months that the girls spent in foster care under the order that was later reversed by the Court of Special Appeals.

In adopting a permanency plan, the juvenile court was to consider the girls’ attachment and emotional ties to their natural mother. CJ §3-823(e)(2); FL §5-525(f)(1)(ii). Ms. S. contended that had the girls remained in her custody, the bond between them would have been stronger, which would have favored a permanency plan of reunification with her. This assertion, however, is conjecture, as it is entirely possible that her continued custody of the girls could have had detrimental effects on their relationship.

Even assuming, however, that losing custody of her children lessened the emotional attachment between them, that diminishing bond appeared due largely to Ms. S.’s own actions. She was unwilling or unable to arrive on time at visits or other important events in the children’s lives; at one point, she missed eight weeks of visits without informing the Department or her children that she was not able to be present, such that the visitation facility eventually canceled her regular visitation time. Ms. S. failed to make arrangements for the girls’ medical and mental health care. Ms. S.’s unpredictability disappointed the girls and made them anxious, causing them to gradually lose interest in her visits altogether. By the time of the July 2012 hearing, neither child wished to continue visitation with their mother at all.

The juvenile court was obliged to weigh the length of time that the girls had spent with Ms. W., their foster mother, and the emotional attachment they had to her. See CJ §3-823(e)(2); FL §5-525(f)(1)(iii) & (iv). The emotional attachment between children and their foster care providers cannot, by itself, justify a change in permanency plan away from reunification. In re Yve S., 373 Md. at 594. However, there was an abundance of other persuasive evidence supporting the juvenile court’s decision, and there was no indication that these factors were given overriding weight in the overall analysis of the permanency plan change.

Ultimately, Ms. S.’s argument boils down to a contention that it was patently unfair to weigh the passage of time against her. But the task of the juvenile court is not to remedy unfairness to the mother, but to weigh any unfairness in light of the best interests of her children. In re Yve S., 373 Md. at 569. Any unfairness to the parent is minimized by the presumption that reunification with the parent is normally in the child’s best interests and by the opportunities available to a parent during a period without custody to address the court’s concerns and take steps toward reestablishing healthy bonds with his or her children.

The juvenile court’s directions to Ms. S. were consistent with the purpose of the CINA law to “hold parents of children found to be in need of assistance responsible for remedying the circumstance that required the court’s intervention[.]” CJ §3-802(a)(4). Ms. S. did not address those circumstances in any meaningful way. As such, regardless of the number of months in which the girls were in foster care, Ms. S. was treated unfairly when, despite the juvenile court’s efforts to steer the plan toward an ultimate goal of reunification, she failed to do the any of the basic tasks she needed to prepare for the return of her children.

Accordingly, the juvenile court did not err in considering the events occurring during the entire 16 months that Ashley and Caitlyn spent in foster care when it reviewed their permanency plan in July 2012.

COMMENTARY: Ms. S. argued that the juvenile court’s decision to change the girls’ permanency plan from reunification to adoption was an abuse of discretion.

FL §5-525(f)(1)(i) required the court to consider the child’s ability to be safe and healthy in the home of the child’s parent. The court found that Ms. S. had not prepared a suitable home for the girls’ anticipated return, and may not have had any home at all for the girls. While homelessness is not, by itself, sufficient justification for taking away parental rights, it is a factor. See In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 501 (2007).

A key consideration is thus whether the parent exhibits an ability or willingness to “provide minimally acceptable shelter, sustenance, and support.” Often, this good faith effort will be shown in a parent’s utilization of social services to seek and secure a safe and healthy home environment. However, Ms. S. refused attempts to assist her in providing a minimally acceptable level of care for her children. The juvenile court properly found that the girls would not be safe and healthy in her home, wherever that may be.

FL §5-525(f)(1)(ii) required the juvenile court to consider the children’s attachment and emotional ties to their mother. The emotional ties between Ms. S. and the girls were weakened substantially by Ms. S.’s failure to arrive at visitation appointments on time — if she arrived at all — and her failure to engage with them during those visits. Ms. S. did not make serious efforts to provide them with needed medical and mental health care, and refused to allow them to have their belongings until the girls were returned to her care. Further, the attachment and emotional ties that did exist appeared to be unhealthy. Ultimately, by the time of the July 2012 proceedings, the children no longer wished to visit with their mother.

FL §5-525(f)(1)(v) required the juvenile court to consider any potential harm to the children’s emotional, developmental, and educational needs that could result from their removal from foster care.

The record was replete with instances of Ms. S.’s opposition to her children being supplied services for these needs. Although Ashley was significantly behind in school, Ms. S. resisted the school’s efforts to provide special education accommodations, and took Ashley out of school for lengthy periods without informing school officials. Ms. S. did not attend her daughter’s individualized education plan meetings, even when ordered by the court to do so. She did not enroll Ashley in a program recommended by the school to deal with Ashley’s disciplinary problems, or provide proof that she had enrolled Ashley in the alternative program that Ms. S. preferred. Ms. S. did not allow Ashley to meet with her school counselor, nor did she secure needed therapy for Ashley. She denied Ashley needed orthodontic care and did not seek treatment for Caitlyn’s hearing problems. The record also shows that, when finally undertaken by the school, the Department, or Ms. W., these actions had beneficial results for the children. The juvenile court’s concern that the girls would suffer emotional, developmental, and educational harm by returning to their mother’s care was justified.

The court did not abuse its discretion in deciding that adoption was in the best interests of Ashley and Caitlyn.

PRACTICE TIPS: A change in a permanency plan to eliminate reunification with a parent is appealable as an interlocutory order. See In re Damon M., 362 Md. 429, 436-37 (2001). However, subsequent interlocutory orders made in accordance with continuation of the same plan are not appealable because they do not change the terms of parental rights. In re Samone H., 385 Md. 282 (2005).