In re D.H.

Decision Date07 June 2019
Docket NumberNo. 2567,2567
PartiesIN RE: D.H.
CourtCourt of Special Appeals of Maryland

Circuit Court for Baltimore City

Petition No. T17243005

UNREPORTED

Graeff, Beachley, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.

Opinion by Graeff, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Ms. S. ("Mother") appeals from the September 6, 2018, order of the Circuit Court for Baltimore City, which dismissed her untimely notice of appeal of the June 8, 2018, order granting appellee, Baltimore City Department of Social Service's (the "Department"), guardianship with the right to consent to adoption of Mother's minor child, D.H. She presents four questions for this Court's review,1 which we have consolidated and rephrased as follows:

Did the circuit court err in striking Mother's untimely notice of appeal?

For the reasons set forth below, we shall answer this question in the negative, and therefore, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND
I.Initial Background

D.H. was born on May 8, 2016, at which time both D.H. and Mother tested positive for marijuana and benzodiazepines. Shortly thereafter, the Department filed a Petition With Request for Shelter Care, which the circuit court granted. On August 19, 2016, the circuit court determined that D.H. was a CINA2 and granted limited guardianship to the Department. On September 8, 2017, after mother continued to have positive drug test results, failed to enter into service agreements, and visited D.H. only sporadically, the Department filed a Petition for Guardianship with the Right to Consent to Adoption or Long Term Care Short of Adoption.

II.Termination of Parental Rights Hearing

The court held a hearing on the Department's petition on April 24, 2018, April 25, 2018, and May 3, 2018. Dr. Ruth Zajdel testified that she performed a bonding evaluationon D.H.'s foster care provider, Ms. Street, and D.H. 3 Ms. Street was "nurturing and caring and was able to interact with [D.H.] in an . . . age-appropriate, cognitive development appropriate way." D.H. was "securely bonded" to Ms. Street.

Mother was scheduled for both a parental fitness evaluation and a bonding evaluation, but she failed to appear for either. Because Dr. Zajdel did not have the opportunity to evaluate Mother, she was unable to make recommendations about general custody of the child.

Nia Noakes, a Child Protective Services ("CPS") Safety Unit worker, testified that CPS became involved with D.H. when he was born substance exposed. Mother advised CPS that she "did not want the baby to go to the house where she was staying." On May 20, 2016, the hospital issued a visitor restriction form for Mother because she was visibly impaired when she visited D.H.

Delores Basilio, a CPS Permanency Department worker, testified that the hospital called her advising that they had "ejected [Mother] from the hospital for her behavior." She sent Mother a letter explaining Mother's right to weekly visitation, but Mother's visitation was "sporadic," i.e., out of the possible 104 weekly Wednesday visits that Mother could have attended, Mother had exercised her visitation rights only approximately 26 times. Ms. Basilio offered Mother a service agreement, but Mother failed to complybecause she frequently tested positive for drugs, she was unable to secure housing, despite CPS offering to assist Mother with one month rent once Mother provided documentation of housing, and Mother failed to provide documentation of proof of income. For 15 months the goal under the permanency plan was reunification of Mother with D.H., but due to Mother's inability to comply with the service agreement, as well as its goal of permanency for D.H., CPS sought to terminate Mother's parental rights to allow for the adoption of D.H.

Mother was scheduled to testify on the first day of the hearing. After someone reported that Mother was using illegal substances, however, the court ordered an instant drug test. When the test came back positive for marijuana and benzodiazepines, the court postponed Mother's testimony to the next day.4

On April 25, 2018, Mother testified. She stated, contrary to Ms. Noake's testimony, that she never had any discussion with CPS as to where D.H. should live before CPS took him to shelter care. Mother testified that she complied with the service agreement offered by CPS, and she claimed that she showed Ms. Basilio documents indicating that she received TCA5 and food stamps.6 With respect to drug treatment, Mother testified that sheno longer smoked marijuana, despite that the court ordered test the prior day was positive for marijuana. Mother then stated that her drug use did not affect her ability to care for D.H. Mother also disputed Ms. Basilio's testimony that she had exercised her visitation rights only 26 of the 104 possible times over the approximately two-year time span.

Following the close of the proceedings on April 25, 2018, the circuit court ordered the parties to appear on May 3, 2018, "for [the] parties [to] present closing arguments." The circuit court subsequently ordered the parties to appear on June 8, 2018, "for the Court's ruling."

III.Circuit Court's Decision to Terminate Parental Rights

On June 8, 2018, the court rendered its decision from the bench. Mother did not appear. The court considered the factors set forth in Maryland Code (2012 Repl. Vol.), § 5-323(d) of the Family Law Article ("FL"), regarding the grant of nonconsensual guardianship, and it stated, in pertinent part, as follows:

The Court finds that Mother did not fulfill her obligations of the service agreement completely and that she participated in the REACH [drug] program but did not reach sustained abstinence. She consistently tested positive for CDS or did not provide instances where she was clean.
. . . Mother failed to find housing, although she currently lives in a basement apartment on Allendale Road, it is not appropriate for her, her daughter, and her son.7 Mother has failed to find gainful employment, although Mother testified that she is receiving TCA.
Mother has not found permanent housing that would accommodate her, her daughter[,] and her son. Although she indicated through her testimony that she did provide the Department with information that sheapplied for housing, but did not provide proof that she applied for that housing.

* * *

Also, upon the birth of [D.H.], the child tested positive for drugs, as evidenced by the State's exhibit. Mother refused the level of drug treatment recommended by qualified addiction specialists.
The Court concludes that Mother did refuse . . . the level of drug treatment recommended by qualified addiction specialists because during the course of the time that the service agreements existed she continued to test positive for drugs, whether they were narcotics or prescribed, but not prescribed by a professional doctor.

With respect to visitation, the court noted that, even using Mother's estimation as to the number of visitation sessions she attended, she only exercised her right to visitation approximately 40 of the 104 possible times. Mother "either had the inability to provide financial support or chose not to provide financial support" to D.H., and "[t]here was no evidence, including receipts, for what she now claims to be her current employment prospect, which is doing hair." The court found that the majority of D.H.'s emotional ties were with Ms. Street, and "the likely impact of terminating the parental rights on the child [would] be minimal," given Mother's sporadic visitation and that D.H. had been in Ms. Street's care since he was approximately two weeks old.

The court continued:

Mother participated in REACH for two years. She failed to sustain abstinence, she failed to provide adequate proof of compliance with the program. There was no evidence of treatment for mental health issues. But evidence of non-prescribed prescription medications for mental health issues. Mother has been unable to assist counsel during [the] initial hearing and tested positive for CDS when the hearing was recessed for that purpose.

The court found that "the child has been away from the biological parent for more than 99 weeks," and it noted that any possible emotional effect on D.H. if a relationship with Mother did not continue was unknown because Mother failed to appear for a bonding evaluation. The court further found that Mother "didn't initiate contact or interest" in reclaiming D.H. "until the initiation of the TPR," and Mother had made "little effort to create amenable conditions so that her child [could] be returned to her care and custody." The court thus concluded that a continued parental relationship with Mother "would be detrimental to the best interest of [D.H.]."

The same day that the court rendered its decision from the bench, it issued an order. The order stated that the court "found that termination of parental rights is in the best interests of" D.H., and it appointed the Department "guardian of [D.H.], with the right to consent to adoption and with the right to consent to long-term care short of adoption."

IV.Appeal of the June 8, 2018, Order

On June 15, 2018, trial counsel sent Mother a letter, advising that the court terminated Mother's parental rights to D.H. and enclosing a copy of the order. The letter continued:

Please note that you have thirty (30) days from the date of the Order to file a notice of appeal. This means that any objection must be received by the Clerk of the Circuit Court for Baltimore City Division for Juvenile Causes within thirty (30) days from the date "ORDERED" on the Court Order. This notice of appeal must be in writing. If you do not file a timely notice of appeal, you will be barred forever from taking an appeal of Judge Jones's
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