In re Ashley S.

• Decision Date: 30 May 2013
• Docket Number: No. 4,Sept. Term, 2013.,4
• Citation: 66 A.3d 1022,431 Md. 678
• Parties: In re ASHLEY S. & Caitlyn S.
• Court: Maryland Court of Appeals

431 Md. 678

66 A.3d 1022

In re ASHLEY S. & Caitlyn S.

No. 4, Sept. Term, 2013.

Court of Appeals of Maryland.

May 30, 2013.

Nenutzka C. Villamar, Assistant Public Defender, (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Appellant.

Amy L. Petkovsck, Senior Attorney, (Lindsey E. Brecher of Legal Aid Bureau, Inc., Riverdale, MD; Janet Hartge, Assistant Director of Advocacy for Children's Rights, Legal Aid Bureau, Inc., Baltimore, MD), Leslie K. Ridgway, Assistant Attorney General, (Douglas F. Gansler, Attorney General of Maryland, Baltimore, MD), on brief, for Appellees.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, and McDONALD, JJ.

McDONALD, J.

A parent has a fundamental right to rear his or her children without unwarranted interference by the State. This liberty interest, protected by the Fourteenth Amendment to the United States Constitution, ¹ Occupies “a unique place in our legal culture, given the centrality of family life as the focus for personal meaning and responsibility” and is “essential to the orderly pursuit of happiness.” ² But this right is not absolute. It must be balanced against society's obligation, exercised through the State, to ensure the child's welfare.³

In this case, two young sisters who had been the subject of various reports of neglect by their mother over a period of two years were placed in emergency shelter care by the juvenile court at the request of the county department of social services. The girls were later determined to be children in need of assistance (“CINA”) by the court, and, as a result, were placed in foster care, pending implementation of a plan for their permanent placement—a plan that preferably would result in family reunification.

After the girls had been in foster care for nearly a year, the Court of Special Appeals reversed the juvenile court's decision with respect to the CINA designation of the younger sister, and the foster care placement of both girls, due to the insufficiency of the court's factual findings.

After the intermediate appellate court's decision, the juvenile court, at the request of the department of social services, again determined that the younger sister was a CINA—a determination that the mother did not appeal. A few months later, the juvenile court again took up the matter of deciding on a plan for the girls' permanent placement. In doing so, the court considered both their positive experiences with their foster parent and their mother's failure to cooperate with court orders and social workers during the entire period in which the children were in foster care—including both the seven and a half months under the order that had been reversed, as well as the subsequent seven months when the girls were in foster care under an order that had not been challenged. As a result, the court approved a change of the permanency plan from reunification with the mother to adoption for both girls.

The mother contends that the court should not have considered—or, at least, should have significantly discounted—the events that took place during their foster care placement under the original order that was reversed. We do not agree, and hold that the juvenile court, in determining the girls' permanency plan, properly regarded all the relevant circumstances and facts before it in reaching a decision that was in the children's best interests.

Background

CINA—Statutory Framework

Procedures governing the designation of a child as CINA are set forth in Maryland Code, Courts & Judicial Proceedings Article (“CJ”), § 3–801 et seq. Related provisions concerning out-of-home placement and foster care are found in Maryland Code, Family Law Article (“FL”), § 5–524 et seq.

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). Upon receipt of a petition, the court is required to hold an adjudicatory hearing to determine whether the department's factual allegations are true. CJ §§ 3–801(c), 3–817(a). If the court finds that the allegations are accurate, a disposition hearing is held to determine whether the child is, in fact, a CINA, and, if so, what intervention is necessary to protect the child's health, safety, and well-being. CJ §§ 3–801(m), 3–819(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). This establishes “the direction in which the parent, agencies, and the court will work in terms of reaching a satisfactory conclusion to the situation.” In re Yve S., 373 Md. 551, 582, 819 A.2d 1030 (2003). It is an integral part of “the statutory scheme designed to expedite the movement of Maryland's children from foster care to permanent living, and hopefully, family arrangement.” In re Damon M., 362 Md. 429, 436, 765 A.2d 624, 627 (2001).

A permanency plan may include reunification of the child with the parent or guardian (unless the local department is the 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.” Id. The statutes specify certain factors to guide the 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.

FL § 5–525(f)(1); CJ § 3–823(e)(2).

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. at 582, 819 A.2d 1030. 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, 9 A.3d 14 (2010) (citing in RE adoption/guardianship oF rashawN H., 402 md. 477, 496, 937 A.2d 177 (2007)).

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). At the hearing, the juvenile court is to assess the continuing necessity for, and appropriateness of, the prior commitment of the child; whether reasonable efforts have been made to finalize the child's permanency plan; the extent of progress in alleviating or mitigating the parent's problems; a reasonable date by which the child may be returned home, placed in a pre-adoptive home, or placed under legal guardianship; and the safety of the child and any measures needed to protect the child. CJ § 3–823(h)(2). 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).

If the court approves a permanency plan of adoption, the local department must file a petition for guardianship within 30 days (or 60 days if the department does not support the plan), and a hearing on termination of parental rights is held in lieu of the six-month review hearing. CJ § 3–823(g).

Ashley S. and Caitlyn S.

Ashley S. was born to Sharee S. (“Ms.S.”) ⁴ on July 8, 1999. Caitlyn S. was born to Ms. S. on February 8, 2008. The girls have different fathers, neither of whom is a party to this appeal. Their situation comes before this Court after numerous contacts with the Montgomery County Department of Health and Human Services (“the Department”), a series of CINA hearings in the juvenile court, and an earlier appeal to the Court of Special Appeals. Due consideration of the determinations of those courts requires that we recount that journey in some detail.

September 2008—January 2011: Several Safety Plans

In September 2008, Ashley and Caitlyn—then ages 9 years and 7 months, respectively—came to the attention of the Department after reports that their mother had been leaving them alone after school and on weekends for a month. As a result of that neglect, Ms. S. was arrested for criminal neglect, a “no-contact” order was issued,⁵ and the children were removedfrom the home. After Ms. S. agreed to a written “safety plan” to provide appropriate supervision for the children, they were returned to her. Subsequently, officials at Ashley's school became increasingly concerned about her behavioral problems. That year, the school referred Ashley to a crisis center after she expressed suicidal thoughts. Although Ms. S. took Ashley to the center, they left before Ashley received any treatment.

In May 2009, Ashley was caught stealing her teacher's mobile phone—Ashley's third disciplinary incident at the school related to theft. The school principal met with Ms. S. and told her that the matter had...