In re K.L.
| Decision Date | 01 September 2021 |
| Docket Number | No. 1302, Sept. Term, 2020,1302, Sept. Term, 2020 |
| Citation | 252 Md.App. 148,258 A.3d 932 |
| Parties | IN RE: K.L. |
| Court | Court of Special Appeals of Maryland |
Submitted by: Julia Roberson (Paul B. DeWolfe, Public Defender, Baltimore, MD), on the brief, for Appellant.
Submitted by: P. Joan Gavigan (Michael Stuart Katz, Darlene A. Wakefield, Law Offices of Darlene A. Wakefield, PA, Towson, MD), Leslie K. Ridgway (Brian E. Frosh, Atty. Gen., Baltimore, MD), all on the briefs, for Appellee.
Panel: Fader, C.J., Kehoe, Deborah S. Eyler (Senior Judge, Specially Assigned), JJ.
Appellant E.H. ("Mother") is the natural mother of appellee K.L., who is seventeen years old. K.L. is a transgender female. As we shall explain, K.L.’s biological sex at birth was male and her gender identity is female.1
When K.L. was seven years old, the Circuit Court for Baltimore County, sitting as the juvenile court, declared her to be a "child in need of assistance" ("CINA").2 She has been a CINA ever since. In 2020, K.L., through counsel, filed a motion to expand the limited guardianship of appellee Baltimore County Department of Social Services ("Department"). The juvenile court granted the motion, as follows:
ORDERED , that the limited guardianship ... be expanded to include sole and full authority to consent, on behalf of [K.L.], to a petition filed by K.L. through her counsel to change her name and gender marker.
The order was issued on December 9, 2020 and docketed on December 16, 2020. ("December 16, 2020 Order").
In this appeal, Mother contends the juvenile court erred by granting the Department the authority to consent to the filing of a petition to change K.L.’s name and gender marker.3 The Department, joined by K.L., has filed a motion to dismiss on the ground that the December 16, 2020 Order is not appealable, to which Mother has filed an opposition. The Department and K.L. assert, in the alternative, that the juvenile court's decision was not in error.
We hold that the December 16, 2020 Order deprived Mother of a substantial decision-making right respecting K.L. and therefore is an appealable order under Md. Code (1974, 2020 Repl. Vol.), section 12-303(3)(x) of the Courts & Judicial Proceedings Article ("CJP"). We further hold that the standard for deciding whether to expand the Department's limited guardianship to include authority to consent to a change in name and gender marker is the best interests of the child and that the juvenile court did not err or abuse its discretion in granting the Department that authority over K.L.
In Grimm v. Gloucester County School Board , 972 F. 3d 586 (4th Cir. 2020), rehearing en banc denied , 976 F. 3d 399 (2020), cert. denied , ––– U.S.––––, 141 S.Ct. 2878, ––– L.Ed.2d –––– (2021), the Fourth Circuit held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments of 1972, 20 U.S.C. section 1681(a), "can protect transgender students from school bathroom policies that prohibit them from affirming their gender." Id . at 593.4 With the aid of amici briefs and an expert witness on behalf of the plaintiff, the court set forth "a fact-based understanding of what it means to be transgender[.]" Id . at 594. It explained:
972 F. 3d at 594 (footnotes and citations omitted) .
As this makes clear, one's sex refers to the biological state of the person at birth, while one's gender is the gender one identifies with. The Grimm court further spelled out that, Id . at 596. The court estimated based on the material before it that among teenagers in the United States, "approximately 0.7%" or "about 150,000 teens" identify as transgender. Id .5
In this opinion, we shall adopt the factual understandings and nomenclature cited and used by the Fourth Circuit in Grimm , which are based on the present state of treatment of gender-nonconforming people within the established medical, psychiatric, and psychological communities. When we use the word/phrases "sex," "biological sex," or "sex-assigned-at-birth," we mean the sex a person is assigned at the time of birth. When we use the word/phrases "gender," "gender marker," or "gender identity," we mean the gender a person perceives, understands, and experiences as a central identity in life.
K.L. was born in July 2004, when Mother was a CINA herself and was living in foster care.6 By 2011, Mother had given birth to four more children, one of whom was medically fragile and died when very young.
In March 2012, when K.L. was seven, the Department received complaints that Mother was neglecting her children. On June 29, 2012, the Circuit Court for Baltimore County, sitting as the juvenile court, found K.L. and her three siblings to be CINAs and granted the Department an Order of Protective Supervision ("OPS"), with the children remaining in Mother's physical custody. See CJP § 3-819(c)(1)(i). Six weeks later, the police were called when the children, having been left alone at night without electricity, were found attempting to cross a busy road by themselves, in a torrential downpour. The juvenile court rescinded the OPS and placed the children in foster care with a permanency plan of reunification with Mother.7 In K.L.’s case, the Department was granted a limited guardianship, pursuant to CJP section 3-819(c)(1)(ii), "for medical, educational and out of state travel purposes, and psychological and mental health decision-making, including the administration of medication and psychotropic drugs, if appropriate, dental care, educational services, and other appropriate services."
In the nine years since then, K.L. has not been reunified with Mother and has had many foster care placements.8 She has suffered from severe behavioral problems that brought some of those placements to an end. Many of K.L.’s placements have been at therapeutic and diagnostic facilities. Early on, she was diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder.
Beginning at a young age, K.L. perceived herself as being female, even though her sex-assigned-at-birth was male, and preferred wearing feminine clothing and accessories. According to Department reports, by March 2016, K.L. was identifying "more and more as a female" and by August 2016, she was "identifying fully as a female" and wanted to be addressed "by female pronouns." By then, Mother was living in Pennsylvania. She was preoccupied with another child she had given birth to and was having difficulty accepting K.L.’s female gender identity. K.L. had some overnight and weekend visits with Mother, but they experienced conflict and K.L. was uncertain about the prospect of reunifying with Mother, which until then had remained her permanency plan.
In very early 2017, Mother told the Department she wanted to support K.L. in her desires but still was having difficulty accepting her gender identity. In February of that year, K.L.’s permanency plan was changed to custody and guardianship with a non-relative.9 Six months later, when K.L. was age 13 and beginning to go through puberty, she was examined by pediatric endocrinologist Elyse Pine, M.D. Dr. Pine diagnosed K.L. with gender dysphoria, which "refers to the distress that may accompany the incongruence between one's experienced or expressed gender and one's assigned gender." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-V), Gender Dysphoria at 451 (5th ed. 2013).10 Dr. Pine recommended that K.L. start taking puberty blocker medications, which K.L. wanted to do.11 Mother refused to consent to that treatment. Through counsel, K.L. filed an emergency motion to expand the Department's limited guardianship to give it authority to consent to such medical decisions. Mother filed an opposition.
For two days in September 2017, the juvenile court held a hearing on K.L.’s motion, during which it took testimony from witnesses, including Dr. Pine, and received relevant medical literature in evidence. On October 11, 2017, the court granted K.L.’s motion and entered an order giving the Department "sole and full authority to consent, on behalf of [K.L.], to any and all medical, psychiatric and/or psychological treatment, including, but not limited to the administration of psychotropic drugs, hormones, or other drug treatment, that addresses [K.L's] condition of gender dysphoria."
In November 2017, K.L. was moved to a therapeutic placement and began to receive puberty blockers, administered by Dr. Pine. Soon after, her interactions with Mother improved and her permanency plan was changed to a concurrent plan of reunification with Mother, and custody and guardianship with a non-relative. That only...
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...protecting the child, "the best interest of the child standard applies and ‘trumps all other considerations[.]’ " In re K.L. , 252 Md. App. 148, 176-77, 258 A.3d 932 (2021) (explaining that "[t]he parent does not lose his or her fundamental rights but, when a child is adjudicated to be a CI......
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