In re A.N.N.W.

• Decision Date: 18 November 2020
• Docket Number: No. 2539,2539
• Parties: IN RE: A.N.N.W.
• Court: Court of Special Appeals of Maryland

IN RE: A.N.N.W.

No. 2539

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

November 18, 2020

Circuit Court for Baltimore City

Case No. T19217017

UNREPORTED

Fader, C.J., Kehoe, Beachley, JJ.

Opinion by Fader, C.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.

Roger C., the appellant, challenges an order of the Circuit Court for Baltimore City, sitting as a juvenile court, that terminated his parental rights to A.N.N.W. ("A.") and granted the Baltimore City Department of Social Services (the "Department") guardianship with the right to consent to her adoption by a relative. In its decision, the juvenile court found that Mr. C. was unfit to parent A. and that exceptional circumstances existed that would make continuation of his parental relationship detrimental to her best interests. We will affirm.

BACKGROUND

The Department's Involvement with A.

A. was born in November 2015. A.'s mother ("Mother"), named her current boyfriend, Terry W., as A.'s father on the birth certificate.¹

At the time of birth, both A. and Mother tested positive for opiates and cocaine. The Department removed A. from Mother's custody while still at the hospital and filed an emergency shelter care petition in which it alleged, among other things, that Mother and Mr. W. had admitted to abusing heroin, had "failed to cooperate" with the Department's attempts to facilitate drug treatment, and lacked the means to provide A. with basicnecessities. The juvenile court granted the Department a limited guardianship over A. and placed her in shelter care.

After an adjudicatory hearing in May 2016, the juvenile court found A. to be a child in need of assistance.² The court placed her in Mother's custody under an order of protective services, which required Mother and Mr. W. to take part in substance abuse treatment and family services. Shortly thereafter, Robert B., A.'s maternal great-uncle, grew concerned about A.'s health and safety and contacted the Department. Following an investigation, the Department petitioned to remove then-nine-month-old A. from Mother's custody. The juvenile court subsequently found that Mother and Mr. W. had "failed to adhere to the terms of the [Order for Protective Services]," and that all parties consented to A.'s placement with a relative, Mr. B. The court adopted a permanency plan of reunification with Mother and Mr. W., which was to be implemented within one year.³

Mr. B. received A. into his care on August 26, 2016. In October 2017, more than one year later, the juvenile court found that despite the Department's "reasonable efforts to accomplish the permanency plan" of reunification with a parent, neither Mother nor Mr. W. had achieved the requirements for reunification. Among other things, the courtfound that "mother is still using illicit substances" and "has not been visiting" with A., and that Mr. W. was incarcerated at the time and "ha[d] no recent contact with" the child. The court further found that A. had been "doing well" in Mr. B.'s care. The court therefore ordered that "the permanency plan [be] changed to placement with a relative for custody and guardianship." Accordingly, A.'s placement with Mr. B. continued.

Mr. C. Comes Forward

In December 2017, the Department filed a petition to terminate Mother's and Mr. W.'s parental rights. At some point after the Department filed the petition, however, questions arose concerning A.'s paternity. In May 2018, when A. was two-and-a-half years old, DNA testing confirmed that Mr. C. is A.'s biological father.

Mr. C. was incarcerated at the time of the DNA test and has remained incarcerated ever since.⁴ In 2014, Mr. C. pleaded guilty to a charge of intent to distribute a controlled dangerous substance and was sentenced to eight years' imprisonment, with seven years, eight months, and seven days of that time suspended. He subsequently violated his probation by committing a second-degree assault and, on June 14, 2018, was ordered to serve the balance of his sentence. Mr. C.'s eligibility for release on parole has been delayed on several occasions as a result of his involvement in five fights and a stabbing.

After Mr. C. was identified as the father and indicated a desire for "reunification" with A., the Department withdrew its petition for guardianship and prepared to provide "reunification services" to Mr. C., which included "[p]arenting classes, substance abuse treatment, mental health treatment, employment, and housing." These services ultimately were not provided because of Mr. C.'s continued incarceration. In October 2018 and again in May 2019, all of the parties, including Mr. C., stipulated and agreed to a set of facts and recommendations, which the juvenile court then adopted in orders, including that: (1) "[r]easonable efforts required by [federal law] have been made"; (2) Mr. C. was "provid[ed] an opportunity to be present and participate" in a hearing and to "review the permanency plan"; (3) A.'s commitment to the Department "for relative placement [should] be continued"; and (4) the Department "is not required to provide reunification services for [A.] because . . . the child has been in and out of home placement for 15 of the previous 22 months."⁵

Mr. C. also entered a mediated agreement with his aunt and Mr. B. for visitation with A., which provided for visits both while Mr. C. was incarcerated and after his anticipated release. The agreement provided "for visits to take place every other weekend" during his incarceration. However, after the visit went poorly, Mr. C. and Mr. B. agreed that there should be no further visits while Mr. C. was incarcerated. That single visit wasthe only time that Mr. C. met A., and except for Mr. C. sending her a couple of letters, it was their only communication. Mr. C. made no further attempt to visit or contact A.

The Termination of Parental Rights Hearing

In August 2019, the Department filed an amended petition for guardianship with the right to consent to adoption, this time listing Mr. C. as A.'s father. The juvenile court held a hearing on the petition in February 2020, during which it heard testimony from a Department representative, Mr. B., and Mr. C. In addition to the facts set forth above, the court heard the following testimony:

• After Mr. C. established paternity, the Department was prepared to provide reunification services to him, and contacted a family member of his to facilitate such services. Other than exploring that possible placement option and helping to facilitate the negotiated visitation agreement, the Department did not provide services due to Mr. C.'s incarceration outside of Baltimore.

• Mr. C. did not request any services from the Department, nor did he provide it with documentation showing that he had obtained employment or housing, or had participated in any treatment programs.

• Although A.'s original permanency plan was reunification with Mother and Mr. W. (her then-presumed father), no change was made to the October 2017 order modifying her permanency plan to placement with a relative for custody and guardianship.

• A. was four years old at the time of the hearing and, except for a few months when she resided with Mother, had lived with Mr. B. continuously since the age of nine months.

• Mr. B. provides daily care for A., including making medical and educational decisions for her. A. has her own bedroom and several pets. Mr. B. testified that he wants to "move forward with adoption" because he loves A. as his daughter. He further testified that A. is "very attached to" him.

• At the time of the hearing, Mr. C. believed he would be released on parole in June 2020. He testified that his parole date had been delayed because of hisinvolvement in "fights, stabbing[]s, whatever it is," and he estimated that he had received infractions for at least "5 fights and 1 stabbing" in prison. Mr. C. commented: "[E]very time I get close to . . . getting out, something happens in prison to me, something goes wrong."

• Mr. C. stated that if he were eventually released on parole, he would need to complete a work or drug treatment program, which would last four months after his release. He was unsure whether A. would be allowed to live with or visit him during that time.

• Mr. C. stated that he agreed to the mediated visitation agreement so that "[A.] would get to know me a little bit more," but testified that he was not inclined to adhere to its terms because of his incarceration.

The juvenile court granted the petition and ordered the termination of Mr. C.'s parental rights. In oral comments at the hearing and in a subsequent written order, the court found by clear and convincing evidence both that Mr. C. was "unfit to continue in the parent-child relationship" and that "significant" exceptional circumstances "warrant the termination of [his] parental rights." The court reviewed the factual and procedural background and then engaged in a thorough review of the statutory factors in § 5-323(d) of the Family Law Article.⁶ With respect to the services offered and provided by the Department—which are at the center of this appeal—the court found that the Department had been prepared to offer services but could not do so as a result of Mr. C.'s continuous incarceration. The court observed that despite suspecting that he was A.'s father earlier, Mr. C. "did not identify himself as such" until A. was two-and-a-half years old. The court also found that although Mr. C. had a visitation agreement in place, only one visit occurredbefore Mr. C. and Mr. B. "agreed that a prison visit was no place for a young child" and discontinued the visits. The court found that "Mr. [C.]'s actions prevented [the Department], the family, and others from providing timely services to Mr. [C.]" and that the Department "ha[d] had no meaningful...