In re Adoption/Guardianship H.W.

234 Md.App. 237

170 A.3d 882

IN RE: ADOPTION/GUARDIANSHIP OF H.W.

No. 2719, Sept. Term, 2016.

Court of Special Appeals of Maryland.

September 28, 2017

Argued by: Kiran Iyer (Paul DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.

Argued by: Ann M. Sheridan (Brian E. Frosh, Attorney General on the brief) Kristen Fon L. Lim (Franklin Law Group, PC on the brief) all of Baltimore, MD, for Appellee.

Panel: Wright, Arthur, James P. Salmon (Senior Judge, Specially Assigned) JJ.

Opinion by Arthur, J.The Baltimore City Department of Social Services petitioned the Circuit Court for Baltimore City, sitting as the juvenile court, to terminate the parental rights of H.W.'s biological father. The court found by clear and convincing evidence that there were exceptional circumstances that made the continuation of the father's parental relationship detrimental to H.W.'s best interests. In so doing, the court relied, in part, on the factors from Ross v. Hoffman , 280 Md. 172, 372 A.2d 582 (1977), which concern whether there are exceptional circumstances that make it detrimental to a child's best interests for a parent to have custody . The father appealed.

Although the court engaged in a thorough and conscientious review of all the evidence before it rendered its decision, we must vacate the judgment and remand for further proceedings because the court erred in considering factors related to custody in finding exceptional circumstances that make the continuation of the father's parental relationship detrimental to H.W.'s best interests.

FACTUAL AND PROCEDURAL HISTORY

A. H.W.'s Life

Appellant M.W. ("Father") is the biological father of a son, H.W., who was born in April of 2012. At the time of H.W.'s birth, Father was incarcerated in Connecticut. Father has never met H.W., and H.W. does not know of Father's existence.

On September 5, 2012, while Father was incarcerated in Connecticut, H.W.'s mother ("Mother") left him unattended in a bathtub. When she returned, H.W. was face down in the water. He almost drowned. The child was hospitalized and spent two weeks on life-support.

On September 28, 2012, H.W. was placed into the custody of the Baltimore City Department of Social Services under an emergency authorization. On October 1, 2012, the Department filed a petition alleging that H.W. was a child in need of assistance or "CINA."¹ On approximately December 3, 2012, the juvenile court found that H.W. was a CINA, but left him in Mother's custody under an order of protective supervision. Father was still incarcerated in Connecticut when these events occurred.

On January 13, 2013, Father was released from prison and placed on probation in Connecticut. He has testified that he was not allowed to leave Connecticut without official permission and that he could not move to Baltimore, because his family could not sponsor him. He lived for some time in a homeless shelter and did not complete a drug-treatment program for marijuana abuse.

For reasons that are unclear from the record, the court entered an emergency order authorizing H.W.'s removal from Mother's residence on May 14, 2013, but returned him to Mother's custody, under the order of protective supervision, on July 22, 2013. On December 12, 2013, the court terminated H.W.'s CINA case.

In January 2014, Mother gave birth to fraternal twins, H.W.'s half-brother and half-sister. Five months later, on June 8, 2014, Mother left H.W.'s half-brother in the sink, unattended, while she tended to his half-sister, who was choking in another room. The infant boy suffered burns on over 18 percent of his body and was hospitalized for 25 days.

On June 9, 2014, the day after H.W.'s half-brother suffered his burns, the Department filed a petition for shelter care on behalf of H.W. and his two half-siblings. At the time, H.W. had a healed burn to the right side of his forehead, which, Mother said, he had suffered when he ran into a lit cigarette while playing. The court placed H.W. and his half-siblings into shelter care.²

On June 20, 2014, the Department placed H.W. and his half-sister in the care of their foster parents, the Ms. H.W. and his half-sister have lived with the Ms. since that date. H.W.'s half-brother joined them at a later date, after he had recovered from his burns, and after Mr. and Ms. M. had constructed an extra room to accommodate all of the children.

Lori Lee, a permanency worker for the Department, investigated Father's whereabouts and received information indicating that he was incarcerated in Kentucky. She sent him a letter on July 10, 2014, but received no response.

The court scheduled a six-month review hearing on H.W.'s permanency plan for the afternoon of December 9, 2014. Father testified that he found out about the hearing about a month before it occurred (though he was unsure how). He evidently received permission to travel to Baltimore for the hearing, but showed up in the morning rather than in the afternoon. He spoke to Ms. Lee, told her that he was on probation in Connecticut (and not incarcerated in Kentucky), and asked to visit with H.W. Ms. Lee told Father that she would pick up H.W. and bring him to the courthouse, but Father said that he was unable to stay because he had bought a ticket on a bus that was leaving at 2:00 or 3:00 p.m. It appears that Father may have managed to get a ticket for a later bus (he did not need to get back to work in Connecticut until 7:00 p.m. the following evening), but he did not use the extra time to see H.W. He left the courthouse with Mother and has not returned to Maryland since that date.

Over the first eight months of 2015, Ms. Lee spoke to Father (and his probation officer) on one occasion and sent him several letters about upcoming hearings. She received no response to the letters. In August 2015, she learned that Father had been reincarcerated. He had violated his probation in several ways, including by testing positive for the use of marijuana.

In October 2015, while he was incarcerated, Father wrote to Ms. Lee and expressed his desire to "be in [H.W.'s] life." He suggested his aunt or his brothers as resources for H.W. Ms. Lee, however, could not locate the brothers. (Father had not supplied contact information for them.) The aunt declined to become a placement resource. On November 12, 2015, Ms. Lee informed Father of these developments.

Between March 2016 and November 2016, Ms. Lee wrote to Father on five occasions. She asked him to communicate with her if his situation changed or if he had other relatives whom he would like to propose as a resource. Father did not respond.

Meanwhile, on October 20, 2015, the Department filed a petition to terminate Mother's and Father's parental rights with respect to H.W. See Md. Code (1984, 2012 Repl. Vol.), § 5–323 of the Family Law Article ("FL"). On May 9, 2016, Mother consented to the termination of her parental rights. On September 22, 2016, Father consented as well, but he withdrew his consent on the following day.

B. The TPR Hearing

A hearing on the Department's petition commenced on January 12, 2017, and was completed on February 9, 2017. Ms. Lee and Father testified.

Ms. Lee testified that the foster parents, the Ms., provide H.W. with proper medication and therapy (he has ADHD), an education, and stable living conditions. She stated that H.W. calls his foster parents "Pop Pop" and "Mommy," that H.W. is very close to "Pop Pop," that he views them as his providers and protectors. H.W.'s two half-siblings live in the foster home as well, and Ms. Lee said that he "is truly a big brother" to them. She expressed her view that it would be "detrimental to remove [H.W.]" from the Ms.' home.

Participating by telephone, Father testified that when he was on probation in Connecticut, he could not travel to Maryland without permission. He claimed that during that time he sent some money to Mother for H.W.'s support. When he is released from prison, he said, he intends to return to Baltimore and to attempt to get custody of H.W. Nonetheless, he agreed that he had no set plans about what he would do upon his return to Baltimore, that he did not expect much help from his family, that he has a history of drug abuse, and that he has failed to complete drug-treatment programs to which he was referred in the past. Father also agreed that he has not been able to provide for himself in the past, but he said that he was reading books and educating himself and taking a course called "Good Intentions, Bad Choices."³ He envisioned that he and H.W. would stay in Baltimore for only a few years, but he expressed a desire to ensure that H.W. remained in contact with his half-siblings. He has a mandatory release date of February 23, 2018, and an anticipated release date of December 25, 2017.

C. The TPR Order

On February 10, 2017, the court issued an order terminating Father's parental rights. In a thorough written opinion, the court reviewed the evidence in light of FL § 5–323(b), which allows for the termination of parental rights if "a juvenile court finds by clear and convincing evidence that a parent is unfit to remain in a parental relationship with the child or that exceptional circumstances exist that would make a continuation of the parental relationship detrimental to the best interests of the child such that terminating the rights of the parent is in a child's best interests[.]"

After considering each of the relevant statutory factors in FL § 5–323(d), the court could not find clear and convincing evidence of Father's unfitness to remain in a parental relationship with the child. Consequently, the court looked to whether the Department had shown clear and convincing evidence of exceptional circumstances that made a continuation of the parental relationship detrimental to the best interests of the child.

In deciding the issue of "exceptional circumstances," the court expressly incorporated the factors for determining whether "there are exceptional circumstances which make custody in the parent...