In re Adoption/Guardianship A.C. & A.C.

IN RE: ADOPTION/GUARDIANSHIP OF A.C. AND A.C.

No. 1340

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

February 21, 2018

Circuit Court for Baltimore City

Case No. T16075015-16

UNREPORTED

Wright, Kehoe, Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.

Opinion by Kehoe, 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.

The Circuit Court for Baltimore City, sitting as a juvenile court, terminated the parental rights of G.B., the biological father of fraternal twins A.C. and A.C. The juvenile court ruled that G.B. was an unfit parent and there were exceptional circumstances making a continuation of the father's parental relationship contrary to the twin's best interest. G.B. appeals, asking:

1. Whether the circuit court erred when it applied the custody factors in Ross v. Hoffman, 280 Md. 172 (1977) in determining that there existed exceptional circumstances warranting the termination of appellant's parental rights?

2. Whether the circuit court erred when it found appellant an unfit parent?

As we will explain, the juvenile court did indeed err when it relied on the Ross v. Hoffman factors to decide whether there were exceptional circumstances warranting termination of appellant's parental rights. Nonetheless, the juvenile court's conclusion that appellant was an unfit parent is an independent, and legally sufficient, predicate for the court's decision to terminate parental rights. We will affirm the circuit court's judgment.

FACTS AND LEGAL PROCEEDINGS

On September 2, 2014, twins, one girl and one boy, were born prematurely to M.H. ("Mother"). Each twin weighed less than a pound, and both were exposed to opiates and cocaine, and had extensive medical problems.¹ Mother named two men as potentialfathers: her then boyfriend and appellant, who was incarcerated on a drug conviction at the Eastern Correctional Institute in Westover, Maryland.

The twins were placed in the hospital's neonatal intensive care unit and then transferred to a pediatric hospital. On November 13, 2014, the Baltimore City Department of Social Services (the "Department") request for shelter care was granted because M.H. was unable to provide care for the twins due to her significant but untreated mental illnesses, drug problems, and domestic violence inflicted on her by a domestic partner (not appellant). The twins were subsequently discharged from the pediatric hospital and placed in a therapeutic foster home.² Shortly thereafter, appellant's paternity was confirmed by genetic testing.

On March 25, 2015, a child in need of assistance ("CINA")³ hearing was held. Appellant was present, having been transported from prison, and represented by counsel. The court found the twins to be CINAs and continued their placement in therapeuticfoster care. On April 10, 2015, the children's case worker, Ms. Meekins, spoke to appellant by phone from prison about his children's future and he expressed an interest in visiting with them.

A review hearing was held on May 19, 2015. Again, appellant was present, having been transported from prison, and represented by counsel. The juvenile court continued the twins' placement in therapeutic foster care. Additionally, the court ordered a home study of the maternal grandparents' (the "Grandparents") house in West Virginia pursuant to the Interstate Compact on the Placement of Children ("ICPC").⁴

Appellant was released from prison in June 2015. Appellant signed two service agreements with the Department to facilitate his reunification with the twins, one on July 28, and the other on November 23, 2015.⁵ The agreements, which had a six-month achievement date, required appellant to: 1) visit the children weekly; 2) maintain contact with probation and parole; 3) obtain stable residence for himself and the children; 4) participate in and complete a parenting program; 5) provide documentation of completing a parenting program; 6) attend the children's medical appointments; and 7) cooperate with the Department by keeping appointments and following through on the serviceagreement. The agreement also required appellant to maintain regular contact with the Department and the children, to attend court hearings, support the children financially where applicable, and participate in medical care and educational planning.

The second agreement explained the importance of each requirement. For example, the second agreement stated that appellant was to attend a parenting program to "enhance" his "knowledge and understanding of the various stages of development of early childhood"; provide documentation of completing a parenting program to demonstrate his interest in the children being placed in his care; attend his children's medical appointments for the purpose of becoming familiar with their health needs; and keep appointments with the Department and following through on the service agreement to demonstrate "his interest in assuming responsibility" for his children.

On August 24, 2015, Ms. Meekins sent appellant a letter to the address appellant had given.⁶ She informed him that he had requested and agreed to several one-hour visits with his children on July 16, July 21, July 28, and August 6, and that he had only shown up for the visit on July 28. She advised him that, because the office was not informed that he was canceling the visits, his children were transported to the office and had waited for him. She asked him to meet with her on a stated date/time to discuss his intentions as to the children's future, and she included her telephone number and her supervisor's nameand telephone number to arrange another date if the suggested date did not work for him. Appellant never responded.

A permanency plan review hearing was held on September 8, 2015. Appellant's attorney was present but appellant was not. The juvenile court adopted the magistrate's recommendation that the permanency plan continue to be reunification with parent.

On November 4, 2015, Ms. Meekins sent appellant another letter advising that they had spoken two days earlier, and that she was confirming a visit scheduled for November 10. She reiterated that after a half-hour his children would be transported back to foster care if he had not arrived. Again, she gave her telephone number and the name and number of her supervisor. Appellant did not show up for the November 10 visitation. However, appellant did attend the November 23 visitation, at which time he signed the second service agreement. At that time, he was given and signed a piece of paper with the name and contact information for a parenting program. Appellant attended a visitation on December 15, but he did not show up for the visitation scheduled for December 21, 2015.

In March 2016, Ms. Meekins retired and Ms. Williams became the children's case worker. On May 4, 2016, the twins were placed with their maternal grandparents in West Virginia. A review hearing was held on July 8, 2016. Appellant's attorney was present but appellant was not. The Department requested, and the magistrate recommended, that the children's permanency plan be changed from reunification with parent to placementwith a relative for adoption or custody/guardianship. On July 18, 2016, the juvenile court adopted the master's recommendation. Appellant did not challenge that decision.

Sometime after the change in permanency plan and during the summer of 2016, appellant called Ms. Williams. There had been no contact between the Department and appellant since his visitation on December 15, 2015. Appellant told her that he wanted to visit his children and inquired about their permanency plan. She advised him that the children were with their maternal grandparents in West Virginia, that he was now entitled to monthly but not weekly visits with them, and that the children's permanency plan was changed to placement with a relative for adoption or custody/guardianship.⁷ Appellant stated that he was not aware of the change in the permanency plan. In December 2016, Ms. Williams received a call from appellant. Appellant stated that he had some Christmas gifts for the children, and he wanted to arrange a time to drop off the gifts at her office. A day and time was arranged, but appellant failed to show up. Since that time, Ms. Williams has had no further contact with appellant.

A review hearing was held on January 10, 2017. Appellant's attorney was present but, once again, appellant was not. Because the parties were unable to reach an agreement regarding the termination of appellant's parental rights, the matter was set for a contested termination of parental rights ("TPR") hearing on March 3, 2017, which was then apparently rescheduled for the end of July. In the meantime, the court held a reviewhearing on July 7, at which time appellant's attorney was again present but appellant was not. The recommendation was to continue the children's placement pending the upcoming contested TPR hearing.

The contested TPR hearing was held on July 28 and 31, 2017. Ms. Williams, the children's step-grandmother with whom they resided, and appellant testified at the hearing. Following the hearing, the court issued a thorough, 12-page written decision terminating appellant's parental rights on two grounds: he was unfit to parent, and exceptional circumstances existed, making it detrimental to the children's best interest to continue the parental relationship. Appellant filed a timely appeal.

DISCUSSION

Before we address appellant's questions, we shall first set forth the applicable standard of review and the law on termination of parental rights.

Standard of Review

We utilize three different but interrelated standards when reviewing a juvenile court's decision to terminate parental rights. We review a juvenile court's factual findings under the clearly erroneous...