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Top court OKs termination of parental rights while CINA appeal was underway

Judges can permanently strip parents of their rights to their children even while the parents are appealing an order in the underlying foster-care case, Maryland’s top court ruled Tuesday.

However, judges can take such an action only when the parent’s bid for reunification is unlikely to succeed, and where the neglect or mistreatment of the child outweighs the “presumption … that a continuation of the parental relationship is in a child’s best interests,” the Court of Appeals held.

“The parent does have the right to appeal a permanency plan of adoption, but that right is not absolute,” Judge Sally D. Adkins wrote for the high court. “The paramount concern here is the child’s best interests. Neither automatic stays [of termination of parental rights orders] nor routine denials of motions account for that. Only the exercise of sound discretion does.”

The decision drew praise from University of Baltimore School of Law professor Barbara A. Babb, who said it provides much-needed guidance to judges and attorneys in termination of parental rights cases, which she called “the most difficult cases judges have to decide” in civil litigation.

“The ultimate goal and the ultimate object is the best interest of the child,” said Babb, who directs the school’s Sayra and Neil Meyerhoff Center for Families, Children and the Courts.

The Court of Appeals’ ruling was a defeat for a mother, identified as Jennifer S., who had appealed a judge’s order that changed the permanency plan for her son, Jayden G., to adoption by a nonrelative.

Following the change in the permanency plan, two things happened: The mother appealed and the Montgomery County Department of Health and Human Services began a separate proceeding to terminate her parental rights. (The TPR proceeding is required before the nonrelative adoption can proceed.)

Jennifer S.’s appeal and the TPR case proceeded in tandem. By the time the Court of Special Appeals ruled in her favor, it was too late: one month earlier, the judge in the TPR case had found that termination of parental rights would be in Jayden’s best interest.

Even though Jennifer S.’s appeal was pending at the time, the judge refused to stay the effect of the TPR order.

On Tuesday, the high court affirmed that decision.

The judge was justified in issuing the TPR order, though an appeal was pending, because of evidence provided by the Montgomery County Department of Health and Human Services. The department found the mother’s neglect for her son was so extreme and her missed psychiatric appointments so frequent as to warrant losing her parental rights.

“The mother’s motion [for a stay] — with the focus on her ‘mental health stability’ and a ‘strong connection with’ the children —simply failed to demonstrate that there was any likelihood the mother would succeed on appeal,” Adkins wrote. “And, staying TPR proceedings pending resolution of an appeal that sounded impossible to win, would not increase the fairness of the process or the accuracy of results, or advance the child’s best interests.”

Assistant Maryland Public Defender Nenutzka C. Villamar, who pressed the mother’s appeal, said she was disappointed for her client but said the decision could help other mothers and fathers appealing an order placing their child in foster care or up for adoption.

“Now trial courts will know that they have the discretion to stay a TPR,” Villamar said. “This is a good ruling for future litigants.”

Assistant Maryland Attorney General Ann M. Sheridan, who argued on the department’s behalf, said the decision “makes clear that the critical consideration in making both procedural and substantive decisions is the best interest of the child. That is a consideration the court has emphasized in many of its recent cases. I am very glad that it continues to reaffirm that principle in this case.”

The county department removed 16-month-old Jayden from his mother’s custody on Jan. 31, 2009, 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 Jayden 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.

Montgomery County Circuit Judge Katherine D. Savage granted the TPR motion on Dec. 21, 2011. She denied Jennifer S.’ motion to delay the effect of her order while the appeal was pending.

The Court of Special Appeals reversed the permanency plan decision on Jan. 19, 2012.

Jennifer S. then appealed the TPR order and the denial of her motion to stay. The Court of Special Appeals affirmed both rulings last August, and the mother sought review by the Court of Appeals.

Maryland Legal Aid Bureau attorney Cherie J. Jones, who represented Jayden G., urged the court to uphold the termination of the mother’s parental rights, saying the boy is now in a loving and stable home.

The high court agreed.

“The reality of Jayden’s life was such that he spent 33 months in foster care, while the department worked with the mother on addressing the issues that led to Jayden’s being found CINA in the first place,” Adkins wrote. “For 33 months, Jayden patiently waited for the mother to get better and bring him home. But continuing to hold on to this concept of a parental relationship any longer — in the face of the mother’s persistent inability to take charge of her life — was contrary to Jayden’s best interests.”

Adkins was joined in her opinion by Chief Judge Mary Ellen Barbera and Judges Lynne A. Battaglia, Clayton Greene Jr. and Robert N. McDonald.

Judge Glenn T. Harrell Jr. and retired Chief Judge Robert M. Bell joined in the judgment only. Bell stepped down from the bench July 6 upon reaching the mandatory retirement age of 70.

WHAT THE COURT HELD

Case:

In Re: Adoption/Guardianship of Jayden G., CA No. 84 Sept. Term 2012. Reported. Opinion by Adkins, J. Argued May 6, 2013. Filed July 16, 2013.

Issue:

Did the trial judge err in not staying a decision terminating parental rights while an appeal of the child’s placement in foster care was pending?

Holding:

No; trial judges have discretion to terminate parental rights even when a placement order is on appeal.

Counsel:

Assistant Public Defender Nenutzka C. Villamar for petitioner; Assistant Attorney General Ann M Sheridan for respondent

RecordFax # 13-0716-20 (63 pages).