In re H.W.

• Decision Date: 16 July 2018
• Docket Number: No. 70 September Term, 2017,70 September Term, 2017
• Citation: 460 Md. 201,189 A.3d 284
• Parties: IN RE: ADOPTION/GUARDIANSHIP OF H.W.
• Court: Court of Special Appeals of Maryland

460 Md. 201

189 A.3d 284

IN RE: ADOPTION/GUARDIANSHIP OF H.W.

No. 70 September Term, 2017

Court of Appeals of Maryland.

July 16, 2018

Argued by Ann M. Sheridan, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland of Baltimore, MD), on brief, for Petitioner.

Argued by Kristen Fon L. Lim, Staff Atty. (Franklin Law Group of Catonsville, MD) and Kiran Iyer, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland of Baltimore, MD), on briefs, for Respondents.

Argued before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Adkins, J.Proceedings to terminate parental rights necessitate maintaining a delicate balance between a parent's constitutional right to raise their children, the State's interest in protecting children, and the child's best interests. Here, we return to the often-complicated question of exceptional circumstances in the context of terminating parental rights ("TPR") under Md. Code (1984, 2012 Repl. Vol.), § 5-323 of the Family Law Article ("FL"). We consider if, when assessing whether exceptional circumstances exist that make continuing the parental relationship detrimental to a child's best interests, a juvenile court errs by considering custody-specific factors used to determine exceptional circumstances in third-party custody disputes. See, e.g., Ross v. Hoffman , 280 Md. 172, 372 A.2d 582 (1977).

FACTS AND LEGAL PROCEEDINGS

H.W. was born in April 2012 to S.B. ("Mother"), an 18-year-old former CINA¹ and M.W. ("Father"). Father had been convicted in Connecticut seven years earlier of sexual assault in the first degree and was released in 2009. Four months before H.W. was born, Father was extradited from Maryland to Connecticut and incarcerated there. Father was released in January 2013 and remained in Connecticut on probation. He has never seen H.W.

In October 2012, Mother left H.W. unattended during a bath. When she returned, she found him face down in the water. H.W. was hospitalized and on life support for two weeks. In December 2012, H.W. was found to be a CINA and was placed in Mother's care under an Order of Protective Supervision. Some months later, the Baltimore City Department of Social Services ("Department") sought emergency removal of H.W. from the home, which a juvenile court granted. In July 2013, H.W. was returned to Mother's care under another Order of Protective Supervision, which was rescinded in December 2013.

Mother gave birth to twins, H.J. ("Brother") and H.J. ("Sister")² in January 2014. In June 2014, Mother was bathing Brother in the kitchen sink under running water. Sister was in her car seat in a different room with a bottle. Sister began choking and Mother left Brother unattended to respond. When Mother returned to the kitchen, she discovered that Brother had suffered severe burns. He was hospitalized for nearly a month. The Department promptly filed Petitions with Requests for Shelter Care for all three children, which the juvenile court granted. H.W. and Sister were placed in a foster home belonging to Mr. and Mrs. M. on June 20, 2014. After being discharged from the hospital, Brother was placed in a separate foster home to address his specific medical needs, but he eventually joined H.W. and Sister at the M. home.³ All three children were declared CINA.

At the time H.W. was removed, he had a healed burn on the side of his forehead. Mother told the Department caseworker that H.W. had run into a lit cigarette while playing. Mother reported that she contacted his pediatrician, who advised her to put Vaseline on the burn, but sought no other medical attention.

Lori Lee, H.W.'s caseworker, attempted to locate Father in July 2014 and received information that he was incarcerated in Kentucky. She sent a letter to him but received no response.⁴ In late 2014, while on probation in Connecticut, Father learned that H.W. was in the State's custody, through either a summons or a letter from Lee. Father obtained permission to travel to Baltimore for a CINA hearing in December 2014. Mother introduced Lee to Father the morning of the hearing. Father had thought the hearing was in the morning and he wanted to visit H.W. When Lee explained that the hearing was scheduled for the afternoon, Father informed Lee that he would not be able to stay because he had to return to Connecticut. Lee told Father why H.W. was in the State's care, and that she would like for him to visit with H.W. Father indicated that he would speak with his probation officer, so he could return to Baltimore to visit with H.W. Father, however, did not immediately return to Connecticut. Instead, he left the courthouse with Mother and made alternate travel arrangements to leave the next day. He did not attend the December 2014 hearing.

In January 2015, Lee had a phone conversation with Father's probation officer while Father was present. Father wanted to attend an upcoming hearing and his probation officer indicated that she and Father would discuss whether or not he would receive permission to do so. Later that month, Lee sent a letter to Father's probation officer providing additional information about the hearing. She did not receive a response and Father did not attend the hearing. Lee sent additional letters to Father in July and August, notifying him of upcoming hearings and enclosing copies of court orders. She invited Father to contact her to "discuss any questions you may have regarding [H.W.] and [to] schedule visits." Lee did not receive a response. In August 2015, Father was incarcerated again for violating his probation.

Father wrote Lee a letter in October 2015, notifying her of his incarceration. He identified an aunt and his brothers as relative resources for H.W. He included contact information for his aunt and mother, but not for his brothers. Father expressed that he wanted to be in H.W.'s life. He claimed that his probation officer had refused to allow him to attend hearings in Maryland. Father had "requested to be sentenced to prison in pursuit of no more probation, which will allow [him] to relocate back to Baltimore ...."

Father explained that he had difficulty communicating with Mother by phone but occasionally reached her through social media. He stated that Mother became "stubborn and withdrawn when [he] asked of [H.W.]'s whereabouts." Father also asked Lee for resources, "I don't know what you can do for [H.W.] and I, but I am sincerely asking for your help for our unity?" Father anticipated being "incarcerated for approximately 2 y[ea]rs" but hoped that "you and your department have left me some options as [H.W.]'s father." He asked Lee to send "any information about the progress that has been made with [H.W.]'s placement."

Lee investigated Father's aunt, who passed her fingerprint and background checks. When Lee contacted the aunt about completing a home inspection, she declined to be a resource. Rather, she was willing to be "a back-up plan to [the Department's] back-up plan" and thought it best that H.W. remain with his foster family. Lee sent Father a letter in November 2015 notifying him of this development and informing him that his brothers had not contacted her regarding H.W.

Lee explained that H.W.'s foster family was willing and able to adopt him, and that H.W. was having behavioral issues. She also advised Father of an upcoming hearing in December and asked him to contact her if his situation changed, or if he had other relatives the Department could investigate. Between March and November 2016, Lee sent Father six more letters with copies of court orders concerning H.W. Father did not respond.

In October 2015, the Department filed a Petition for Guardianship with the Right to Consent to Adoption or Long Term Care Short of Adoption for H.W. Father and Mother objected, but later consented. Father, however, withdrew his consent and the matter proceeded to a contested hearing in 2017.

The TPR Hearing

Lee testified at the hearing, describing her meeting with Father in 2014, subsequent attempts at communication with him, and her investigation of Father's aunt. Lee acknowledged that Father had been under legal constraints since before H.W. went into care. During her testimony, she also described H.W.'s placement with the M. family and her monthly visits with the children. H.W. had some special needs relating to behavioral problems and had been diagnosed with ADHD. He was receiving treatment and the M. family worked with him through therapy. The M. family was in contact with Mother through phone and e-mail.

Lee testified that H.W. is emotionally attached to Mr. and Mrs. M., and calls them PopPop and Mommy. H.W.'s twin siblings are also placed with the M. family and H.W. has bonded with them—"truly a big brother." Lee stated that she had no concerns about H.W.'s care and opined that it would be detrimental to H.W. to remove him from the M. home because of his emotional attachments and because it would "set him backwards in his treatment, the therapy that he's been going through for his behavioral problems." Lee recommended that Mr. and Mrs. M. adopt H.W.

Father testified by phone from the Brooklyn Correctional Facility in Connecticut, where he was serving a 30-month sentence for violating his probation. During his testimony, Father explained that Mother did not contact him after he was extradited from Maryland in 2011. He had sporadic contact with Mother and, although he always asked to speak to H.W. during phone calls, this rarely happened. Mother did not share much information about H.W. with him, and on at least one occasion, they argued about money. Father explained that his probation officer had denied him permission to attend other hearings for H.W.

Father had several probation violations and had tested positive for marijuana. He explained that since he had been in Connecticut, "the majority of [his] situation has been homelessness," and that he had not been able to provide for himself. Father had been employed during his probation with a fast food restaurant and...