IN RE ADOPTION T00032005, 00279

• Decision Date: 04 December 2001
• Docket Number: No. 00279,00279
• Citation: 786 A.2d 64,141 Md. App. 570
• Parties: In re ADOPTION/GUARDIANSHIP NO. T00032005.
• Court: Court of Special Appeals of Maryland

786 A.2d 64

141 Md. App. 570

In re ADOPTION/GUARDIANSHIP NO. T00032005.

No. 00279, Sept. Term, 2001.

Court of Special Appeals of Maryland.

December 4, 2001.

Argued by Joan F. Little (Belhia V. Martin, on the brief), both of Baltimore, MD.

Argued by C.J. Messerschmidt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), both of Baltimore, MD.

Argued before HOLLANDER, and JAMES R. EYLER and WILLIAM W. WENNER, (Retired, specially Assigned), JJ.

HOLLANDER, J.

In this termination of parental rights case, we must consider whether a child has the right to withdraw his statutory consent to a petition seeking termination of parental rights. John B., Jr. ("John"), appellant, the minor child of Sheri H. and John B., Sr., complains, inter alia, that the Circuit Court for Baltimore City erred or abused its discretion when it did not permit him to withdraw his "deemed consent" to a Petition for Guardianship, with the Right to Consent to Adoption or Long Term Care Short of Adoption ("the Petition"). The Petition was filed on February 23, 2000, by the Baltimore City Department of Social Services ("the Department" or "DSS"), appellee, when John was ten years of age. The circuit court subsequently granted the Petition.¹

From the time that John came into the Department's care in 1995, he was placed with his paternal grandparents, Christine and Melvin G. Because John was happy with that placement, he did not object to the Petition and was deemed to have consented to it. However, both before and at the termination of parental rights ("TPR") hearing on March 28, 2001, John's counsel advised the court that John no longer agreed to the Petition. Claiming that John is deeply "attached" to his mother and has "strong ties" to his two siblings, his attorney sought to revoke John's statutory consent, and voiced John's opposition to the Petition.

On appeal, John presents three questions for our review, which we have reordered and rephrased slightly:

I. Did the trial court err in failing to consider whether the child's changed circumstances warranted relief from the 30-day response deadline to the show cause order?

II. Did the trial court err in failing to consider evidence regarding John's family ties?

III. Was the evidence sufficient to support the termination of parental rights?

For the reasons set forth below, we shall affirm.

FACTUAL SUMMARY

John was born on July 10, 1989. He has a younger half sister, Shunta F., born on January 3, 1993, and an older half brother, James H., born on March 12, 1984. The Department filed a termination petition as to John and Shunta, but not as to James.² DSS acknowledges that John is "close" to his siblings.

Shortly after Shunta's birth, the hospital reported that both she and Ms. H. tested positive for drugs. Nevertheless, the three children did not come into care until August 1995, when they were removed because Ms. H.'s drug problem interfered with her ability to care for the children. At the time, the children ranged in age from eleven to two. When John was removed, he was immediately placed with his paternal grandparents, with whom he has resided ever since. In his brief, appellant recognizes that "[t]here is no question but that John's current placement with his grandparents affords him a stable environment."

On September 14, 1995, by agreement of the parties, the children were found to be children in need of assistance ("CINA") and committed to the Department. Thereafter, beginning in 1995, Ms. H. entered several service agreements. In John's brief, he concedes that his mother "failed to adhere" to those agreements.

On August 4, 1995, Ms. H. entered her first service agreement, in which she agreed to obtain drug treatment and attend parenting classes. On August 15, 1995, she also agreed to a safety plan, in which she acknowledged her drug problem and her failure to provide proper care for her children. Further, she agreed to enter a drug detoxification and treatment program.

Ms. H. executed a second service agreement on November 22, 1995, in which she again agreed to complete drug treatment, obtain a stable home, and attend parenting classes. On the same day, she entered a residential drug treatment program, but left just three days later. She did not comply with the provisions of the service agreement or the safety plan. Ms. H. subsequently had "sporadic contact" with her caseworker. On November 23, 1999, Ms. H. entered yet another service agreement, which again provided for drug treatment, parenting classes, and stable housing. Ms. H. did not comply with its terms.

Throughout this time, John consistently desired both sibling and parental visitation. Although the Department recommended regular sibling visits, John frequently complained about the inadequacy of visitation. In its transfer summary dated August 12, 1996, the Department acknowledged that "John needs to visit with his siblings. He is very close to his brother."

When John was nine years old, he expressed a desire "to grow up with his paternal grandparents." At that time, neither of John's parents had maintained regular contact with the Department, even though they saw John occasionally. Accordingly, on or about March 22, 1999, the parties agreed to a permanency plan for John of relative placement for the purpose of adoption or custody and guardianship.³

On July 28, 1999, the Department wrote a letter to John Sr., informing him that DSS was initiating termination of parental rights because John had been in care for "too long." In a stipulation of September 29, 1999, the Department noted that the permanency plans for all three children were subject to change and were pending reevaluation by the Show Cause Committee. The Department subsequently changed the permanency plan for John and Shunta to adoption, while the permanency plan for James H. continued to be long-term foster care.

As we noted, DSS filed the Petition on February 23, 2000, when John was ten years old. A Show Cause Order was served on Ms. H. on April 17, 2000, and she timely objected. John's father was served with the Petition on June 4, 2000, and did not object. By motion on May 2, 2000, John's counsel complained about service of the Show Cause Order on appellant. As a result, on May 5, 2000, when John was about two months shy of his eleventh birthday, the Department re-served the Show Cause Order on John's attorney. Accordingly, at a hearing on June 6, 2000, John's counsel withdrew her motion challenging service of the Show Cause Order. She also said: "We have no objection to the TPR at this time." Nevertheless, John's attorney expressly sought to preserve John's "right to be able to participate" fully at the TPR hearing. DSS did not object to that request, and the court responded: "Just in case. Right, right."

John explains that, initially, he did not oppose the termination of parental rights, because he "was in a stable situation with his grandparents and was happy to stay with them." Over the next several months, however, as John continued to mature and grow "very close" to his family, he changed his mind. Accordingly, at a conference on January 9, 2001, John's counsel informed the circuit court that John had "undergone developmental changes and [he] was no longer in favor of the termination." The court gave John's lawyer an opportunity to speak with John and to determine whether counsel had to withdraw from her dual representation of John and Shunta, to avoid a possible conflict. John's counsel subsequently advised the court on January 16, 2001, that John was, indeed, "adamantly opposed to termination." Accordingly, the court appointed a new attorney for Shunta.

At the termination of parental rights hearing on March 28, 2001, neither Ms. H. nor John was present, but both were represented by counsel. John's counsel advised the court, without objection, that John wanted to remain in the care of his paternal grandparents, but opposed the severance of legal ties to his parents and siblings. Further, she explained that John "considered himself a part of his biological family," and wanted to maintain a relationship with his siblings. Suggesting to the court that termination of parental ties would "devastate" John, his lawyer urged the court to allow John to withdraw his prior consent to the Petition and to deny DSS's request.

At the TPR hearing, all the parties proceeded by proffer, without any limitation imposed by the court. In connection with its proffer, the Department offered its entire record as an exhibit, although the court admitted only those portions "which do not contain inappropriate hearsay." With respect to the proffer made by John's counsel, the following colloquy is relevant:

[THE COURT]: [John's lawyer], any evidence or proffer as to John's case?

[APPELLANT'S ATTORNEY]: Yes, Your Honor. Let me say that if John B. was here he would try to explain to the court at 11 years old exactly what has personally happened to him with regard to both his mother, his father and now his caretaker[s], his paternal grandparents.

As the State has shown, John has, in fact, been with the department since the early age of 1995[sic], has had the department's involvement, but from his perspective he's been with his family. His primary caretakers are his grandparents, his paternal grandparents.

If he was here he would talk about how he treasured the visits that he does have with his mother, and that he honors and would love to be able to keep a relationship with his mother that would not entail termination of parental rights.

In addition to that, he does have contact with his father because he's with his paternal grandparents and, in fact, would find it devastating if, in fact, his parents' legal ties and all other ties were terminated at this time.

To the extent that a child can understand what termination of parental rights mean, and to the extent that counsel could explain that, I think that John clearly did not understand the

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