In re Adoption/Guardianship I.M.

IN RE: ADOPTION/GUARDIANSHIP OF I.M.

No. 0798

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

January 6, 2017

UNREPORTED

Woodward, Berger, Shaw Geter, JJ.

Opinion by Woodward, 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, granted the petition filed by appellee, Baltimore City Department of Social Services ("the Department"), to terminate the parental rights of appellant, M.M., ("Mother"), over her child, I.M., and for guardianship with the right to consent to adoption or long-term care.

On appeal, Mother presents two questions for our review:

1. Was [M]other denied her due process right to a fair and impartial trial?

2. Did the trial court err or abuse its discretion by terminating [Mother's] parental rights?

For the reasons discussed below, we conclude that the juvenile court did not err or abuse its discretion, and thus, we shall affirm.

SUMMARY OF BACKGROUND

I.M. was born on December 2, 2008. During the first seven-and-one-fourth years of I.M.'s life, three separate CINA proceedings involving I.M. took place, each resulting from the arrest and incarceration of Mother. I.M. was placed in foster care as a result of each proceeding. At the conclusion of the first two CINA proceedings, I.M. was returned to the care of Mother. I.M. was not returned to Mother's care after the third CINA proceeding, because that proceeding arose out of the death of I.M.'s infant sister, Iz., when Mother rolled over on her while Mother was "drunk asleep." Mother was charged and convicted of manslaughter and related charges. On October 9, 2015, the Department filed a Petition for Guardianship with the Right to Consent to Adoption or Long Term Care Short of Adoption ("TPR") with the juvenile court.

The TPR trial took place on March 30-31, 2016, and April 26-27, 2016. At the time of the TPR trial, I.M. had been in foster care for five-and-one-third years, or 73.5% of her whole life. On May 19, 2016, the juvenile court rendered an oral opinion, comprising twenty-eight pages of transcript, granting the Department's petition and terminating Mother's parental rights. Additional facts will be included as necessary to address the questions presented. A more detailed discussion of the background will be set forth in our discussion of Question 2.

STANDARD OF REVIEW

When reviewing a juvenile court's decision to terminate parental rights, three standards of review are employed. In re Adoption/Guardianship of Jayden G., 433 Md. 50, 96 (2013). The appellate court reviews factual findings for clear error, but reviews legal conclusions de novo. Id. "If the [trial] court's factual findings are not clearly erroneous, and [the court's] legal conclusions are correct, [the appellate court] review[s] the court's 'ultimate conclusion' for abuse of discretion." Id.

DISCUSSION

I. ALLEGED JUDICIAL BIAS REGARDING MOTHER

In the case sub judice, two conversations took place in the courtroom between the trial judge and the courtroom clerk during a short recess in the TPR trial on March 31, 2016. The first conversation between the judge and the clerk lasted forty-five seconds, and the second conversation lasted one minute and fifty seconds. Both conversations were apparently at the bench outside of the presence and hearing of the parties' attorneys.

At the time of the first conversation, the parties were over halfway through day two of the TPR trial, and four witnesses had been called to testify. Three witnesses testified for the Department: Ms. K., Stephanie Hamlin, and Robin Akehurst. During the Department's case, the court permitted Mother to call I.M. as a witness out of turn. A review of the transcript indicates that Mother's trial counsel objected approximately twenty-four times during the direct examination of Akehurst. At the end of Akehurst's testimony, the following ensued:

THE COURT: Ma'am, you may stand down. The Court will take a brief recess. Thank you. Only for about five minutes, I need a --

[DEPARTMENT TRIAL ATTORNEY]: Okay, thank you.

THE COURT: -- mental health break.

The judge then exited the courtroom. At the end of the recess, the judge re-entered the courtroom, took the bench, and immediately had a conversation with the courtroom clerk at the bench:

THE COURT: (Inaudible).

THE CLERK: Mental health made you, all that mental health done made you (laughter).

THE COURT: (Inaudible). Is [sic] she don't shut up so we can get this testimony --

THE CLERK: She won't, she won't, because that's her MO, to object to everything. She thinks it makes her look smart (inaudible) pain in the ass.

THE COURT: In front of a juror [sic] she won't loose [sic] her place. (Inaudible).

THE CLERK: (Inaudible) when people, when other courts see her name on the docket, especially on the trial docket --

THE COURT: Right.

THE CLERK: -- they know.

THE COURT: They're like oh, man.

THE CLERK: Right. Right. Right. Exactly.

(Emphasis added).

At the end of the above conversation, the judge addressed the Department's trial attorney:

THE COURT: Who would be your next witness, [Department trial attorney]?

[DEPARTMENT TRIAL ATTORNEY]: Ms. Ruby.

THE COURT: Oh, okay. Where is your client?

[MOTHER'S TRIAL COUNSEL]: Um, I'm not sure. I believe she may have stepped down stairs.

[I.M.'S COUNSEL]: To have a smoke.

[MOTHER'S TRIAL COUNSEL]: I went to the ladies room and we were walking together and --

THE COURT: Okay, thank you.

[MOTHER'S TRIAL COUNSEL]: Can I ask just to wait a minute, maybe, for her?

[DEPARTMENT TRIAL ATTORNEY]: One minute.

THE COURT: Yes.

* * *

[MOTHER'S TRIAL COUNSEL]: Judge [ ], may I step out and call [Mother]?

THE COURT: Please do.

[MOTHER'S TRIAL COUNSEL]: Thank you.

Following Mother's trial counsel's request to call Mother, the judge had another conversation with the courtroom clerk at the bench:

THE COURT: Don't start. Don't get me started. It's like asking me can I go up on the roof and jump off (inaudible).

THE CLERK: All that back and forth and all this talk about her, I think she having a mental health time right -- minute. She can't help it.

THE COURT: She can't, they done put this child through a water torture test.

THE CLERK: Right.

THE COURT: She's hot, she's cold, she wants to keep on (inaudible).

THE CLERK: Right. Right.

THE COURT: (Inaudible).

THE CLERK: Right, but she don't have (inaudible).

THE COURT: This child, she had her third foster care before she was five years old.

THE CLERK: Right, right. But she --

THE COURT: (Inaudible).

THE CLERK: But that's crazy. The children are right down in Virginia.

THE COURT: What are?

THE CLERK: The children are in Virginia.

THE COURT: Yeah, yeah.

THE CLERK: I don't know what she wants? (inaudible).

THE COURT: No, (inaudible). It's just a shame.

THE CLERK: It is.

THE COURT: It'[s] a shame. And then we (inaudible). What do you want me to do with this lady?

THE CLERK: Right.

THE COURT: I don't [k]now what you want, I don't know what you want me to do with this. I try to give you every benefit, anybody every benefit of the doubt.

THE CLERK: Right.

THE COURT: But what the hell am I supposed, and you getting ready to (inaudible). I know you got some time built up but you getting ready to go back to jail.

THE CLERK: I believe you.

THE COURT: At least for a little while. So I don't know what she wants me to do.

THE CLERK: I think so too. I believe the prosecutors (inaudible) try to stick it to her.

THE COURT: They going to try to stick it to her.

THE CLERK: Yeah.

THE COURT: That's what they do.

THE CLERK: Yeah, they do.

* * *

THE COURT: Have mercy, have mercy.

THE CLERK: Uh-huh.

THE COURT: Have mercy, have mercy.

(Emphasis added).

Mother argues that she was denied her due process right to a fair and impartial trial based on the judge's two conversations with the courtroom clerk. Mother contends that the content of the conversations "demonstrated a lack of impartiality on the part of the judge," and that the judge "had already decided on the outcome of the case based on improper considerations instead of basing it on the correct legal standard set forth by Md. Code, Family Law [ ] § 5-323 and relevant law." Mother also argues that the judge'sdemeaning comments about Mother's trial counsel gave the appearance of bias against Mother.¹

The Department responds that it is clear from the totality of the record that the trial judge held no biases and afforded Mother due process of law. The Department argues that the judge's comments "did not demonstrate 'an egregious display of partiality and bias' against [Mother,]" and even if the comments showed bias, the bias was from a judicial, not personal, source, the latter being required for recusal. The Department contends that the judge's verbal pondering of his decision during the conversations, when viewed in light of his conduct during the remainder of the trial, such as reminding the Department of Mother's fundamental right "to try to parent her child[,]" announcing the need to review the most recent exhibits, and waiting three weeks to issue a decision, indicates that the judge "had not decided the case prior to the trial's conclusion."

The attorney for I.M. responds that "[t]here was no inclination from the exchanges between the clerk and the judge that there was actual bias or prejudice[,] which would support the appearance of impropriety and lead to a due process violation." The attorney for I.M. further argues that "the judge's comments were not threatening, egregious[,] or demeaning[,]" and did not indicate that he had formed or expressed an opinion about Mother or the outcome of the case.

A fair and impartial trial is "no less deserving" in a civil setting as it is in a criminal setting. Dinkins v. Grimes, 201 Md. App. 344, 361 (2011) ("'We recognize that criminal trials might be thought to present even more compelling fair trial rights than do civil trials,...