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Md. court: Custody has no place in termination of parental rights rulings

Judges must refrain from child-custody considerations when determining whether a mother or father’s parental rights should be terminated based on “exceptional circumstances,” Maryland’s second highest court has ruled.

In its 3-0 decision, the Court of Special Appeals overturned the termination of a father’s parental rights, saying a Baltimore city judge had inappropriately considered the emotional and future harm that may befall the child if custody were ever given to the man. Such potential custody considerations have no place in deciding whether parental rights should be terminated, the appellate court stated in its reported opinion last week.

“By using factors related only to custody to aid in its decision to terminate father’s parental rights, the court examined this case through the wrong lens,” Judge Kevin F. Arthur wrote for the court. “Given the important differences between the exceptional circumstances inquiry in TPR (termination of parental rights) proceedings and the exceptional circumstances inquiry in custody matters, we cannot say that it was harmless error for the court to focus in part on custody in reaching its decision to terminate father’s parental rights.”

In remanding the case to Baltimore City Circuit Court, the appellate panel said the judge properly considered as exceptional circumstances the length of time the father was away from the child, the time that elapsed before the father sought to reclaim the child and the nature and strength of the ties between the child and foster parents.

Specifically, the judge noted that the father has never met his 5-year-old son – identified in court papers as H.W. – due to being incarcerated in Connecticut when the boy was born, being barred from leaving Connecticut during his probation and then being returned to prison when he violated probation by using marijuana. The judge also noted the child, whom Maryland child-protection agents removed from his mother due to neglect, calls his foster parents “Pop Pop” and “Mommy.”

The judge, however, exceeded a TPR evaluation in considering the “possible emotional effect” on the child or the “stability and certainty” of his future if custody is given to the father, the Court of Special Appeals said.

“On remand, if the court confines its evaluation to factors relating to the termination of parental rights, it may well reach exactly the same conclusion as it previously reached,” Arthur wrote. “However, we cannot uphold the court’s conclusion, careful and considered as it otherwise was, because it used factors that expressly related to custody in determining whether there were exceptional circumstances that would make continuation of the parental relationship detrimental to the best interests of the child such that terminating father’s parental rights is in H.W.’s best interests.”

Arthur was joined in the opinion by Judges Alexander Wright Jr. and James P. Salmon, a retired judge sitting by special assignment.

The father, identified in court papers as M.W., was represented by the Maryland public defender’s office. The Maryland attorney general’s office represented the Baltimore City Department of Social Services, which sought termination of the father’s parental rights.

The Court of Special Appeals rendered its decision in In Re: Adoption/Guardianship of H.W., No. 2719 September Term 2016.

The court issued the decision as a reported opinion Sept. 28 after initially issuing it as unreported Aug. 15. The court gave no reason for its decision to release it later as reported, enabling it to be cited as precedent in other cases.

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