In re Andre J.

223 Md.App. 305

115 A.3d 771

In re ANDRE J.

No. 1845, Sept. Term, 2014.

Court of Special Appeals of Maryland.

June 1, 2015.

Tamara D. Sanders (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.

Leslie K. Ridgway (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: WOODWARD, KEHOE, and ARTHUR, JJ.

Opinion

ARTHUR, J.

In 2003, when he was eight years old, Andre J. was found to be a child in need of assistance (CINA)¹ and removed from his mother's care and custody. He has remained in foster care since that time. When Andre was 19 years old in 2014, the Circuit Court for Montgomery County, sitting as a juvenile court, issued an order changing his permanency plan from reunification with his mother to another planned permanent living arrangement (APPLA). Andre's mother appeals from that order and asks: “Did the court err by changing Andre's plan from a sole plan of reunification to a sole plan of APPLA?” For the reasons that follow, we answer in the negative and affirm the order of the circuit court.

Factual and Procedural Background

A. Andre's Family Background and CINA Determination

Andre J. was born in December 1994. Ms. Amanda G. (“Ms. G.”) is Andre's biological mother. The identity of Andre's father is unknown. Between 1996 and 1999, Ms. G. gave birth to four children (two half-sisters and two half-brothers of Andre).

From his mother, Andre inherited Fragile X syndrome, a genetic condition that causes significant intellectual disabilities, particularly among males. Andre's full-scale IQ has been measured as 42. His diagnoses include pervasive developmental disorder, communication disorder, and separation anxiety disorder. His mother and his two younger brothers also have special needs.

In 2003, the Montgomery County Department of Health and Human Services (“the Department”) received a report of neglect. An investigation revealed that Andre and his siblings lacked adequate food, clothing, furnishings, and supervision in Ms. G.'s home.

On the basis of that investigation, the Department filed a petition in the Circuit Court for Montgomery County sitting as juvenile court, alleging that Andre and his siblings had been neglected by their mother, and that she was unable to give proper care and attention to the needs of her children. The petition stated that Ms. G. appeared to have limited cognitive abilities and that she lacked basic parenting skills. The Department proved the allegations, and the court adjudicated Andre and his four siblings as children in need of assistance.

Andre, who was eight years old at the time of the CINA determination, was committed to the custody of the Department and placed in specialized foster care apart from his siblings. The court established a permanency plan of reunification with Andre's mother and, to that end, granted her liberal visitation. After evaluating Ms. G., the Department recommended that Andre's maternal grandmother, Ms. Carolyn

A. (“Ms. A.”), should serve as the primary care provider, because Ms. G. would probably be able to function only “ as a supportive, secondary maternal figure to her children.”²

In October 2003, Andre was placed in a therapeutic foster home in Gaithersburg, Maryland. Since that time, Andre has resided with his foster mother, a special education teacher. Andre reportedly made an excellent adjustment to foster care. His functioning has consistently improved with the assistance of medication monitoring, a stable environment, and structured daily routine.

B. Evolution of Andre's Permanency Plan

In accordance with statutory requirements, Andre's permanency plan was reviewed every six months. See Md. Code (1974, 2013 Repl. Vol. & 2014 Supp.), § 3–823(h)(1) of the Courts and Judicial Proceedings Article (“CJP”). As circumstances evolved, the court modified Andre's permanency plan and visitation schedule several times.

In 2004, Ms. G. relocated to Washington, D.C. Soon thereafter, the court changed Andre's permanency plan to placement with a relative (Ms. A.) for custody and guardianship. The court's order stated that Ms. G. would reside with Ms. A. so that Andre and his siblings would “have the added benefit and security of both caretakers.” In 2006, however, the court ordered that the permanency plan be changed to APPLA, because Andre's “mother and grandmother are cognitively limited and are unable to discern the needs of [Andre] and his siblings.”

In 2008, Andre's two younger sisters were reunified with their mother. At that time, Ms. G. was receiving extensive services through the Department on Disability Services (DDS), an agency in Washington, D.C., while Ms. A. continued to provide ongoing support to her grandchildren. In 2009, the court approved a new permanency plan for Andre of reunification and a concurrent plan of APPLA.

In 2010, the court authorized monthly unsupervised visitation for Andre and his mother. After his unsupervised visits, however, Andre began to exhibit unsafe behaviors, including an attempt to jump out of a moving vehicle. He was hospitalized and treated for stress-induced anxiety attacks. In an emergency order, the court required that Andre's visits with his mother be supervised.

Although the Department requested that the court change Andre's permanency plan to a sole plan of APPLA at that time, the court re-authorized the concurrent plan of reunification and APPLA. The court reaffirmed that plan until 2012, when it changed the plan to a sole plan of reunification.

C. Efforts to Achieve Reunification Before Andre's Twenty–First Birthday

After Andre reached the age of 18 in December 2012, the court continued to order that Andre remain a CINA under the court's jurisdiction. Because the CINA proceeding would terminate when Andre turned 21 (CJP § 3–804(b) ; see also CJP § 3–819(k)), the Department began a more aggressive push to prepare for a transition out of the foster care system. The primary goal was to return Andre to his mother in Washington, D.C., before his twenty-first birthday. As a last resort, the Department also began to explore the possibility of placing Andre in an adult male group home through Maryland's Developmental Disabilities Administration (DDA).

The Department engaged DDS, the District of Columbia agency that had been providing services to Ms. G. in Washington, to request that support services be put in place prior to Andre's relocation. This partnership was not successful. DDS indicated that Andre would be ineligible for services until he became a full-time resident of the District of Columbia, a process that would take between 90 and 120 days. Furthermore, even after Andre established residency, there would be an additional period of delay before Andre could receive his full service plan, and his eligibility could not be guaranteed.

Around the same time as these outreach efforts, DDS dramatically reduced its level of services to Ms. G., deeming her to have increased her level of independence. Ms. G.'s long-time service coordinator also left DDS, and her replacements were less reliable than the former employee had been in coordinating with the Department.

In an attempt to bridge a possible service gap, the Department focused its efforts on improving Ms. G.'s ability to handle Andre's more challenging behaviors. Although Andre was more mature and better able to communicate than he had been in the past, Andre often needed behavioral interventions from adults to help him complete daily tasks. Even more important, Andre still required constant supervision to protect against threats to his safety (e.g., threats from crossing the street without looking or touching hot objects).

The established visitation schedule included a supervised monthly visit with Ms. G. at her home in Washington and a supervised monthly visit with Ms. G. and with Andre's brothers at a visitation house in Maryland. To help the Department assess Ms. G.'s ability to meet Andre's needs, the court modified the visitation schedule to include a full-day, lightly supervised visit at the mother's home, as well as an optional Saturday visit.

Both Ms. G. and Andre, however, began to avoid the contact necessary to make progress toward reunification. Ms. G. frequently declined the opportunity for weekend visits with Andre. Family visitation in Maryland was inconsistent because Ms. G. often was extremely late for scheduled visits, cancelled at the last minute or after the visit was scheduled to begin, or did not show up at all. Andre began to display anger towards his mother during and after visits.

Andre also started to verbalize his trepidation about moving to Washington. He became even more resistant after the court authorized unsupervised visits at Ms. G.'s home in March 2014. Andre became extremely upset during his second unsupervised visit, and then he completely refused any further visits to Washington, no matter what conditions were put in place to help him overcome his anxiety.

D. Change in Permanency Plan to Eliminate Goal of Reunification

On October 13, 2014, less than two months before Andre's twentieth birthday, the Department issued a report recommending that Andre's permanency plan be changed from reunification to APPLA. The report cited Ms. G.'s history of missing scheduled visits, Andre's increasing frustration with that inconsistency, Andre's refusal to travel to Washington for visits, and Andre's preference to remain in Maryland. The Department took the position that it had exhausted efforts to achieve reunification: partnering with DDS to implement a service plan for Andre in Washington was no longer a viable option, and Ms. G.'s limitations were too severe to enable a safe transition without those supports.

In short, the Department concluded: “The time and work that still needs to be done for [reunification] to become a possibility far exceeds the amount of time Andre has left” in the child welfare system. The Department recommended that it was in Andre's best interest to focus immediately on working with...