In re Samone H.

• Decision Date: 09 February 2005
• Docket Number: No. 30,30
• Citation: 385 Md. 282,869 A.2d 370
• Parties: In re SAMONE H. & Marchay E.
• Court: Maryland Court of Appeals

869 A.2d 370

385 Md. 282

In re SAMONE H. & Marchay E.

No. 30, September Term, 2004.

Court of Appeals of Maryland.

February 9, 2005.

Reconsideration Denied April 1, 2005.

Claudia A. Cortese, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for petitioner.

Rhonda Cooper, Legal Aid Bureau, Inc., C.J. Messerschmidt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BATTAGLIA, J.

In this action between the biological mother and the State, we have been asked to consider whether the trial court properly denied a motion for independent evaluation of the "bonding" of Katina M. with her biological children, Marchay E. and Samone H., who had been declared children in need of assistance, pursuant to Maryland Code (1974, 2002 Repl.Vol.), § 3-816 of the Courts and Judicial Proceedings Article, during a permanency plan review hearing. At issue also is whether the trial court properly quashed subpoenas for the children to testify during the review hearing or in camera.

I. Facts and Procedural History

Samone H., born on July 20, 1996, and Marchay E., born on January 19, 1991, are the children of Katina M. On September 24, 1996, after investigating allegations of neglect regarding Samone H., the Baltimore City Department of Social Services (BCDSS) filed a petition in the Circuit Court for Baltimore City, Division of Juvenile Causes, requesting that Samone H. be removed from Katina M.'s care and declared a child in need of assistance (CINA)¹ because the BCDSS claimed, among other allegations, that Katina M. had a history of drug abuse and had failed to provide adequate care for Samone H. The court conducted an emergency shelter care hearing² and ordered "BCDSS to provide care and custody for [Samone] in shelter care, pending [an adjudicatory] hearing."³ On February 18, 1997, the Circuit Court ordered Samone H. to be placed with a relative who BCDSS identified as her great-grandmother. Subsequently during the adjudicatory hearing Samone H. was declared a CINA by the Circuit Court but returned to Katina M. under an Order of Protective Supervision by BCDSS.⁴

Six weeks after the Baltimore City Police had responded to a call to the great-grandmother's residence because Katina M. had locked Samone H., Marchay E., and the great-grandmother in the house, BCDSS took custody of Samone H. and Marchay E. Thereafter, BCDSS petitioned to remove the children from the care of Katina M. and also to declare Marchay E. a CINA. After an emergency hearing, the Circuit Court ordered that both children be committed to the custody of BCDSS and placed in the care of the great-grandmother.

Within a month, on July 18, 1997, BCDSS requested that the Circuit Court remove the children from the great-grandmother's care and commit them to the custody of BCDSS with placement in the foster home where they currently reside. On January 27, 1998, the Circuit Court conducted an adjudicatory hearing, determined Marchay E. to be a CINA and ordered both Samone H. and Marchay E. to remain in the custody of BCDSS. The court also established a permanency plan⁵ to have both children live with relatives capable of caring for them. During this time, Katina M. was allowed one supervised visit per month with each of the children.

Thereafter, the Circuit Court conducted periodic review hearings⁶ and on June 24, 1999, the court revised the permanency plan to a concurrent permanency plan of adoption or placement with a relative. The Circuit Court again changed the permanency plan to one of adoption after another review hearing had occurred on December 6, 2000.

Katina M. then filed a motion for reconsideration seeking to change the permanency plan from adoption to reunification. During an annual review hearing held on March 1, 2002, Mary Gilliard, a BCDSS case worker assigned to the case since 1999, testified that Marchay E. and Samone H. should not be removed from their foster home because they were "very bonded" with the foster family. Ms. Gilliard further testified that the visits between Katina M. and the children were "going pretty well" and that the children were glad to see Katina M. When questioned about the detrimental effect of discontinuing the visits, Ms. Gilliard appeared to have differing opinions:

[CHILDREN'S COUNSEL]: There also is some emotional attachment between the children and their biological Mother, that's correct also?

[MS. GILLIARD]: Yes.

[CHILDREN'S COUNSEL]: And it would be detrimental to cut off that relationship between the children and their Mother, is that correct?

[MS. GILLIARD]: Yes, it would at this time.

While in response to questioning by Katina M.'s attorney on the same subject, Ms. Gilliard testified:

[KATINA M.'s COUNSEL]: Okay, do you think the children have an emotional bond with their Mother?

[MS. GILLIARD]: I can't [answer] that question for you right now.

[KATINA M.'s COUNSEL]: Do you think stopping the visits between the children and the Mother would be detrimental to the children?

[MS. GILLIARD]: I don't think so, no no.

[KATINA M.'s COUNSEL]:It would be okay, you don't think they would mind?

[MS. GILLIARD]: Nah, I don't think so at all.

* * *

[KATINA M.'s COUNSEL]: Even though they're loving and caring with their Mother?

[MS. GILLIARD]: For the time that they're with them, they are you know, for that hour, but I don't think it would be detrimental to them if they don't see their biological Mom, because with the foster Mom they have been there so long so this is —

[KATINA M.'s COUNSEL]: Okay, but I'm just talking about as far as the biological Mom and her children and you're saying it would be, there would be no harm done to stop the visits today?

[MS. GILLIARD]: Maybe to the biological Mom, but not to the children, no.

During the March 1, 2002 hearing, Katina M. also testified about her visits with Marchay E. and Samone H:

My visits are great. They don't want to be leaving, they get sad. Like I said, Samone tells me to follow them and Marchay told me that any — I asked Marchay when do she rather see me, the beginning of the month or the end. She said it doesn't really matter just as long as she [sees] me. She just don't want to not see me.

After hearing the testimony, the judge concluded that it would be in the children's best interests to remain in foster care:

[There] is no doubt in mind as to ... what's in the best interest of the children and that's what I'm concerned with. Not the best interest of the Father, not the best interest of the Mother, not in the best interest of the foster parents. It's what's in the best interest of the children. There's no question in this Court's mind that the children have been in foster care for a very, with the same family, for a very substantial time. Most of their lives. One child is only 5, the other child is 11. They have been in foster care since 1997. So, for a good part of their lives, for one almost the whole life and the other for at least half their lives, approximately half. There is no question in the Court's mind that they're bonded to the foster parents. That they consider the foster family as their family. I don't question that the Mother has turned herself around, but for many years she hadn't turned herself around and so to disrupt the children, to remove the children from the place where they've lived for a good part of their lives would be detrimental to them and would serve no useful purpose....

At the same time that the court ordered the permanency plan for adoption to continue, the judge also ordered Katina M.'s supervised visits with the children to be increased to one hour two times per month and issued a separate order denying Katina M.'s motion for reconsideration, which she appealed to the Court of Special Appeals.

Thereafter, in an unreported opinion, the Court of Special Appeals affirmed the Circuit Court's ruling and held that the trial judge did not abuse his discretion in denying Katina M.'s request to change the permanency plan. The intermediate appellate court emphasized that the trial judge properly had considered the children's best interests in reviewing the permanency plan based upon the guidelines set forth in Maryland Code, Section 5-525(e) of the Family Law Article, because he had assessed the potential harm to Marchay E. and Samone H. if removed from their current placement; the length of time the children were with their foster family; and any bond the children had with the foster family and their biological mother. As such, the Court of Special Appeals held that there was "sufficient evidence in the record to support the Circuit Court's decision that a permanency plan of adoption [was] in the best interests of Marchay and Samone."

Within one year, on March 13, 2003, the Circuit Court held another review hearing. Prior to the hearing Katina M. filed a motion for independent study seeking to have the children evaluated by a psychiatrist to provide an assessment of her relationship with her children and whether removing the children from foster care would be harmful; she also subpoenaed both Marchay E. and Samone H. to testify. At the hearing, before the judge who had presided at the March 2002 hearing, Katina M. argued that an independent study of her bond with her children would assist the court in determining whether to change the permanency plan:

[KATINA M.'s COUNSEL]: Your Honor, I did file a motion for independent study concerning matters relevant to the case. In that motion, I stated that the Department had in the past alleged that there was not a sufficient bond between the children, respondents, and my clients that they are — that stated that removal of the respondents from the foster parents would be harmful to the respondents.

Obviously, there is a TPR [⁷] pending to terminate my clients' rights. That the allegations regarding the bonding were made by the worker but not by any

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