In re Yve S.

• Decision Date: 27 March 2003
• Docket Number: No. 50, No. 24
• Citation: 373 Md. 551,819 A.2d 1030
• Parties: In re YVE S.
• Court: Maryland Court of Appeals

819 A.2d 1030

373 Md. 551

In re YVE S.

Nos. 24, 50, Sept. Term, 2002.

Court of Appeals of Maryland.

March 27, 2003.

Peter F. Rose, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for appellant.

Nancy C. Hopkins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for appellee.

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

I.

These combined cases arose initially from a determination by the District Court of Maryland, sitting in Montgomery County as the Juvenile Court,¹ to change the permanency plan for a twelve year-old child, Yve S., from the goal of reunification with her biological mother, Yvonne S., to one of long-term foster care. The Montgomery County Department of Health and Human Services (the "Department") initiated the proceedings on 26 February 1997 by filing a petition with the District Court alleging that Yve S. was a Child in Need of Assistance ("CINA").² On 10 June 1997, following three days of hearings, the juvenile court found Yve S. to be a CINA and committed her to the Department for foster care. After 13 months, on 31 July 1998, Yve S. was returned, temporarily as it turned out, to her mother, Yvonne S., under an Order for Protective Supervision. Eleven days later, on 11 August 1998, the juvenile court held an emergency hearing and, again, placed Yve S. in the Department's custody and returned her to foster care.

A little over 7 months later, in March of 1999, the juvenile court convened a permanency planning hearing for Yve S. At the end of four non-consecutive days of hearings, the court ordered, on 20 September 1999, that the goal of the permanency plan for Yve S. should be termination of parental rights ("TPR") and adoption.

On 20 March 2000, the court convened a permanency planning review that would spread over more than a year. By the time of a hearing on 20 October 2000, the Department advocated changing the permanency plan goal from TPR/adoption to reunification with the mother; however, the court declined to change the goal of the plan. The court held additional review hearings on 13 and 20 December 2000, 15 and 16 February 2001, and 28 March 2001. On 28 March 2001, at the conclusion of the last day of the hearing process that had begun the previous March, the court changed the permanency plan from TPR/adoption to long-term foster care. Yvonne S. noted a timely appeal to the Court of Special Appeals.

On 8 November 2001, while Yvonne S.'s first appeal was pending in the Court of Special Appeals, the juvenile court convened another review hearing.³ The juvenile court concluded that hearing on 20 December 2001, at which time it issued an order reaffirming the content of its 28 March 2001 order. Yvonne S. noted a second appeal.

On 23 January 2002, the Court of Special Appeals filed an unreported opinion in the first appeal affirming the juvenile court's 28 March 2001 order, which had changed Yve S.'s permanency plan to long-term foster care. Yvonne S. filed a petition for writ of certiorari asking this Court to review that decision. Thereafter, Yvonne S. petitioned this Court to issue a writ of certiorari to the Court of Special Appeals before it could decide her second appeal regarding the 20 December 2001 order of the juvenile court. On 8 May 2002, this Court granted both petitions and consolidated the cases. In Re: Yve. S., 369 Md. 178, 798 A.2d 551 (2002).

Subsequently, on 20 April 2002 and 16 July 2002, the juvenile court—now the Circuit Court for Montgomery County (see n. 1 supra ), but with the same judge sitting by special designation during calendar 2002—held another review hearing in Yve S.'s case and entered a new order establishing permanent foster care as the goal of the permanency plan. Yvonne S. noted a third appeal to the Court of Special Appeals and shortly thereafter filed with regard to that appeal a petition for writ of certiorari with this Court. On 22 August 2002, we granted that petition, In re Yve S., 370 Md. 268, 805 A.2d 265 (2002), and transferred the appeal to our regular docket. Because the third appeal raised issues concerning the jurisdiction of the juvenile court to act while an appeal of its earlier order on the same subject matter was pending, it was not consolidated with the earlier cases, but was briefed separately. All of the cases, however, were argued on the same day. We shall decide all issues raised with this single opinion.

II. Issues

Petitioner, Yvonne S., presents the following questions for our consideration, which we rephrase as follows 1. Does the fact that a parent has a mental illness that is being successfully managed nevertheless provide a "compelling reason" to deny reunification and instead adopt a permanency plan of long-term foster care?

2. Is it proper to allow a social worker to give her opinion as to the demeanor of the parent when the parent testified, and to give her opinion of the substance of the parent's testimony?

3. Did the trial court err in refusing to recuse itself from further participation in this case?

4. Whether the trial court erred in changing the permanency plan from long-term foster care to permanent foster care during the pendency of the appeal on the former determination?

III.

Yve S. entered into the Montgomery County foster care system in February of 1997, at the age of six, after the Department received reports that she was not being fed adequately and that she and her mother, Yvonne S., were homeless. Prior to this, Yvonne S. and Yve S. led a nomadic lifestyle. In 1990, they lived in Key West, Florida, where Yve S. was born. In 1991, they lived in Maryland; in 1992, they lived in Martinsburg, West Virginia. In 1993, they lived in Millville, West Virginia, where Yve S. was first taken into foster care. In 1994, they moved to Gaithersburg, Maryland, and then to Westminister, Maryland, in 1995. In 1996, they moved to North Carolina. Finally, in 1997, they returned to Montgomery County.

Soon after Yve S. was placed in foster care in Montgomery County, the Department learned that Yvonne S. had been diagnosed with bipolar disorder and schizo-affective disorder, dating back to her teens. A psychiatric evaluation of Yve S. resulted in a diagnosis of "acute stress reaction," chronic post-traumatic stress disorder, and dissociative disorder. Yve S. also displayed symptoms of possible physical and sexual abuse and, in July of 1997, alleged that she had been molested by a boyfriend of Yvonne S.

Yvonne S. complied with the Department's recommendations for mental health treatment and parenting classes. As a result, she and Yve S. were reunited in June of 1998. In July 1998, the juvenile court approved Yvonne S.'s request to move to the Outer Banks of North Carolina, where she had leased a mobile home. Montgomery County, however, never initiated a home study nor completed a proper interstate compact for the Dare County, North Carolina, family welfare authorities to implement. After only a few days in North Carolina, the Dare County Department of Social Services found it necessary to remove Yve S. from Yvonne S.'s care. Yvonne S. had been evicted from the trailer, and allegedly had left Yve S. in the care of a "known sex offender," though there is no record that this person's status as such was known to Yvonne S. The Dare County Department placed Yve S. in emergency shelter care and then returned her to Montgomery County, where she was placed with a foster care family.

Yvonne S. remained in North Carolina for a time following Yve S.'s return to foster care in Maryland. During that time, in August 1998, she entered into a service agreement with the Montgomery County Department in which she agreed to obtain treatment for her mental illness and maintain stable housing and employment. Yvonne S.'s tenure in North Carolina concluded with a psychiatric hospitalization, after she stopped taking her medications. When she was discharged in late February 1999, she was given a two-week supply of her medications and a one-way bus ticket to Montgomery County.

In March, 1999, Yvonne S. began receiving mental health treatment at St. Luke's Hospital in Montgomery County, under the care of Dr. James Harold, a psychiatrist, and also began having visitation with Yve S. on a regular basis With further assistance from the therapists and social workers at St. Luke's, as well as guidance and support from her church community, Yvonne S. stabilized, became employed, and established a home. In June 1999, she obtained a job at a local nursing home as a housekeeper. By the end of August 1999, Yvonne S. had advanced to the position of activities coordinator and had obtained her own apartment.

By the summer of 2000, Yvonne S. had maintained the same job and apartment for more than a year. She consistently attended her treatment at St. Luke's. By the end of that summer, Yvonne S. was having weekend-long visits with Yve S., and, in light of Yvonne S.'s apparent stability, the Department advocated that the permanency plan for Yve S., which previously had been "TPR/adoption," be changed to "reunification" with her mother.

In a letter to the juvenile court, dated 26 September 2000, the foster parents made a plea for the court to reject the Department's recommendation for reunification, arguing that Yvonne S., with her mental illness, could not raise a child with Yve S.'s needs. At a review hearing held on 20 October 2000, the court distributed copies of this letter to the parties, and shortly thereafter, the Department changed its position from reunifying Yve S. with her mother to one of placing Yve S. in long term foster care with the foster parents.

On 20 December 2000, 15 and 16 February 2001, and 28 March 2001, the juvenile court conducted the permanency planning hearing required by statute.⁴ Only a few days before her testimony in this important hearing, Yvonne S. lost her job at the nursing...