In re D.O.
| Docket Number | 552-2023 |
| Decision Date | 18 January 2024 |
| Parties | IN RE: D.O. |
| Court | Court of Special Appeals of Maryland |
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IN RE: D.O.
No. 552-2023
Court of Special Appeals of Maryland
January 18, 2024
IN THE APPELLATE COURT OF MARYLAND UNREPORTED [*]
Circuit Court for Baltimore City Case No. T22060005
Leahy, Beachley, Wilner, Alan M. (Senior Judge, Specially Assigned), JJ.
OPINION
BEACHLEY, J.
On April 25, 2023, the Circuit Court for Baltimore City terminated the parental rights of Ms. D. in relation to her youngest child, D.O. Ms. D. appeals from that decision, and presents three questions for our review, which we have consolidated to a single question[1]:
Did the court err in terminating Ms. D.'s parental rights
For the reasons set forth below, we hold that the court erred. We therefore vacate and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
D.O. was born in May 2016, with numerous medical problems, most notably: congenital heart disease, dextrocardia (his heart points to the right instead of the left), situs inversus totalis (his abdominal organs are on the opposite sides of his body), spleen malfunction, and primary ciliary dyskinesia (the small hair-like structures in his respiratory tract do not function, causing a build-up of mucus). These medical issues cause him to have breathing problems, heart problems, be more prone to illnesses, and less able to fight infections. D.O. has needed to use a gastrostomy tube ("g-tube") for feeding and
medications, and was oxygen-dependent at one point. While he still has a g-tube and a prescription for oxygen, both are rarely used. For the first three years of his life, he was frequently hospitalized and required close monitoring for breathing problems. D.O. has had three heart surgeries and was awaiting a fourth, and final, heart surgery at the time of the TPR hearing. It is anticipated that the g-tube will be removed after that surgery.
Ms. D. tested positive for cannabis at D.O.'s birth and admitted that she had not received prenatal care during her pregnancy. D.O., however, did not test positive for cannabis at birth. D.O. was placed in foster care eight days after his birth, although he remained in the NICU for a period of time after placement. The decision to remove him from Ms. D.'s care was based on his medical fragility, exposure to cannabis, and lack of prenatal care, as well as Ms. D.'s unstable housing and history of domestic violence with D.O.'s father, Mr. O.[2] After being discharged from the hospital, D.O. was placed in the care of foster parents Mr. and Mrs. M., and continues to reside with them to this day. The parties stipulated that D.O. "has done well" in the foster home.
Because D.O. has been in foster care for seven years, we shall provide a brief overview of the more notable court orders during his time in care. D.O. was determined to be a child in need of assistance ("CINA") [3] on February 13, 2017. The initial permanency
plan for D.O. was reunification with Ms. D. She was granted unsupervised visitation with D.O. on February 13, 2017, but an order on March 10, 2017, imposed a condition that "unsupervised visitation is subject to medical clearance."[4] Although Ms. D. completed medical training in 2017 and 2019, she was never provided unsupervised visitation, and in March of 2019, the court ordered that her visitation "shall remain supervised." Her visitation has remained supervised since that time. On May 28, 2019, the court ordered that Ms. D. "shall be given advance notice of all medical appointments and may attend." On December 17, 2019, the court ordered that a bonding assessment be performed, and it supplemented that order on February 5 and 11, 2020, requiring that a "therapeutic assessment" be conducted concerning D.O.'s separation anxiety, and that the doctor performing the bonding assessment be made aware that Mrs. M. had been "sitting in with mother's visits for the last 3 years." On September 16, 2020, the court again ordered that a bonding assessment be performed. For reasons we shall discuss later in this opinion, no bonding assessment was ever performed for Ms. D., although a bonding assessment was performed for the foster parents.
On February 5, 2020, the permanency plan changed from reunification to a concurrent plan of reunification with Ms. D. and adoption by a third party. The permanency plan changed again on December 22, 2020, to adoption by a third party. On
March 29, 2021, the court struck the December 22, 2020 order, effectively returning the permanency plan to a concurrent plan of reunification and adoption. On July 26, 2021, the court again changed the permanency plan to adoption by a third party. The Department of Social Services ("DSS" or the "Department") filed a petition for TPR on March 9, 2022.
A TPR hearing was held over seven days between February 28, 2023, and April 25, 2023. Numerous witnesses, including two experts, testified, and over eighty documents were admitted into evidence. Among the documents were court orders from the CINA case, three service agreements, parental fitness and bonding evaluations for the foster parents, a parental fitness evaluation for Ms. D., and contact notes authored by DSS workers.
Ms. D.'s Testimony
Ms. D. has a total of eight children, six of whom live with her. Some of her children are adults, but she has two young children close to D.O.'s age who have lived with her since April 2019. Three of her children (one now an adult) were removed from her care at the same time as D.O. Those children were returned to her care in April 2019. she testified that she frequently brings her two young children with her to visit D.O.
Ms. D. testified that her visits with D.O. have been supervised for the entirety of the time that he has been in foster care. Prior to her other children being returned to her care, Ms. D. asked for unsupervised visitation with D.O., which was rejected without explanation. she testified that, when the court granted her unsupervised visitation with D.O. in 2017, DSS did not allow her to have unsupervised visits. When the court changed
the order to unsupervised visitation "subject to medical clearance," DSS did not do anything to help her get medical clearance. However, Ms. D. also admitted that she did not talk to the caseworker or any medical professionals about medical clearance.
Visitation with D.O. started in September 2016, supervised by DSS, and Mentor Maryland[5] took over supervising the visits in January 2017. When Ms. D. asked DSS if some visits could occur at places other than the Mentor Maryland office, she was told "because of [her] visitation situation with [D.O.], it wasn't allowed." Initially, according to Ms. D., the visits were scheduled every two weeks for one hour. For approximately a year before the TPR hearing, the visits had been occurring monthly. Ms. D. asserted that she has no input in selecting the time of the visitation, although she does have input on what day visitation occurs.
D.O.'s foster mother, Mrs. M., transported D.O. to visits with Ms. D. Ms. D. testified that, although she is scheduled to have one-hour visits, Mrs. M. was a half hour late bringing D.O. to the October 2022 visit, had been late "the last four, five visits," and Ms. D. was not given any additional time with D.O. Prior to June 2022, Mrs. M. brought D.O. on time. Ms. D. informed the caseworker about Mrs. M.'s tardiness, and the caseworker told Ms. D. "she would speak to the foster mom and rectify it." Mrs. M. was on time for the March 2023 visit.
Between April 2020 and "[s]ometime in 2022," her visits with D.O. were over Zoom. Ms. D. testified that the quality of the Zoom visits was "not good" because the visits would sometimes take place while Mrs. M. was driving or shopping with D.O. At other times, D.O. would be distracted during visits because there were other people around.
Ms. D. did not schedule any visits with D.O. for the months of November 2022 through January 2023 because she had seasonal employment with UPS that "didn't allow [her] the time off to be able to do the visit." She testified that she was placed "on call" at UPS, meaning she "pretty much [had] to wait for a text message telling [her] where and what time [she] had to be there," and her hours usually started after 1:00 p.m. and ended after 6:00 p.m. Visits at that time could not start before 5:00 p.m. because DSS would not allow D.O. to be picked up from school early for the visits.[6] She raised the issue with DSS, and "was trying to make it work, but the schedule just wasn't going to be able to do it." She informed the caseworker that as soon as her "on call" status ended, she would be able to restart visits. Although a visit was scheduled for February 2023, Ms. D. asked to reschedule that visit because she was sick. Thus, her last visit with D.O. before the start of the hearing was four months prior, in October 2022.
Shortly after D.O.'s birth, Ms. D. was referred to a drug treatment program. She testified that she attended the program, but was determined not to be in need of services because she did not meet "the qualifications of an addict." DSS did not ask Ms. D. to
submit to drug testing. Although DSS did not require Ms. D. to engage in mental health treatment, Ms. D. began therapy on her own in 2016 after someone at the drug treatment program suggested it. The parties stipulated that Ms. D. is currently in therapy. Ms. D. received medical training in 2017 and 2019 concerning D.O.'s medications and use of the g-tube and oxygen. She was told by a caseworker that those two trainings were "the only medical training [she] would receive," and she has not been asked to update her training. She believes that she would be able to recognize when D.O. is getting sick. Ms. D. was referred to and completed parenting classes in September 2016; DSS has not asked her to complete further parenting classes. She obtained housing through a DSS program in April 2019 and has remained in...
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