In re D.M.

250 Md.App. 541

252 A.3d 1

IN RE: D.M., J.M.

No. 0998, Sept. Term, 2020

Court of Special Appeals of Maryland.

May 25, 2021

Argued by: Lauri Moylan, Towson, MD (Paul B. DeWolfe, Public Defender, Baltimore) all on the brief, for Appellant.

Argued by: Janet Hartge (Brian E. Frosh, Atty. Gen., Baltimore, MD) P. Joan Gavigan (Michael Stuart Katz, Darlene A. Wakefield, Law Office of Darlene A. Wakefield, PA, Towson, MD.), for Appellee.

Panel: Arthur, Shaw Geter, Ripken, JJ.

Arthur, J.

Mr. M., the father of nine-year-old D.M. and seven-year-old J.M., appeals the order of the Circuit Court for Baltimore County, sitting as the juvenile court, amending the permanency plan for his children from a sole plan of reunification with a parent to a concurrent plan of reunification with a parent and placement with a relative for custody and guardianship. Mr. M. argues that the juvenile court erred in changing the permanency plan without considering the statutory factors set forth in Md. Code (1984, 2019 Repl. Vol.), § 5-525(f)(1) of the Family Law Article ("FL"). He also argues that the court abused its discretion in adding the concurrent plan of custody and guardianship by a relative.

Because we hold that the juvenile court adequately considered the statutory factors, with primary consideration given to the best interests of the children, we shall affirm the order of the juvenile court.

FACTUAL AND PROCEDURAL BACKGROUND

D.M. and J.M. first came to the attention of the Baltimore County Department of Social Services ("the Department") in August 2017 after their half-sibling, E.T., was born substance-exposed.¹ At that time, D.M. and J.M. were six and four years old, respectively, and living in the care of their maternal grandmother ("Grandmother").

Both children had lived with Grandmother for the majority of their lives—D.M. moved into Grandmother's house with his mother and Mr. M. in early 2013 (when she was about two years old), and the family continued living with Grandmother after J.M. was born in June 2013. Mr. M. lived with the children, Grandmother, and the children's mother ("Ms. P.") until he separated from Ms. P. in 2015.

After E.T.’s birth in August 2017, the Department attempted to meet with Mr. M. and Ms. P. to determine a safety plan for D.M. and J.M. Mr. M. informed the Department that he was involved with his children, but was unable to care for them because he was living in Pennsylvania and had a history of substance abuse. The parties agreed that D.M. and J.M. should be placed in temporary custody with Grandmother.

On February 20, 2018, the Department concluded that "[r]easonable but unsuccessful efforts [had been] made to prevent or eliminate the need for a CINA finding" and petitioned the juvenile court to find that D.M. and J.M. were Children in Need of Assistance ("CINA"). On March 9, 2018, counsel for D.M., J.M., and their half-sibling filed an emergency request that the children be placed in shelter care with Grandmother, so that she would obtain the authority to make medical and educational decisions on their behalf. On that same day, the juvenile court placed the children in shelter care and granted Grandmother temporary, limited guardianship of the children.

At a CINA adjudication hearing on June 11, 2018, the juvenile court granted a continuation of shelter care with Grandmother. Father did not oppose the children's continued placement with Grandmother.²

1. From July 6, 2018, to December 7, 2018

On July 6, 2018, the juvenile court held a disposition hearing and found the children to be CINA because both parents had substance-abuse issues that prevented them from providing appropriate care. As a result of the hearing, the court granted the Department custody of D.M. and J.M. and continued the placement with Grandmother. The court ordered that Mr. M.: (1) provide family background information, comply with service agreements, and maintain consistent weekly contact with the Department; (2) obtain clean, stable, hazard-free housing; and (3) submit to a substance abuse evaluation, participate in substance abuse treatment, and submit to random drug testing. The court also ordered a CINA review hearing date of December 7, 2018, and a permanency planning hearing date of May 6, 2019.

During the review period from July 6, 2018, through December 7, 2018, Mr. M. moved from Pennsylvania to Maryland. He informed the Department that he had attended a three-week drug-rehabilitation program from July to August 2018, but did not provide the Department with requested documentation to confirm his attendance.

Following his discharge from the program, Mr. M. lived with his family in Westminster and Baltimore and maintained weekly, supervised visits with the children. However, in October 2018, Mr. M. was arrested and charged with possession of a stolen firearm, possession of drug paraphernalia, possession of narcotics with an intent to distribute them, possession of more than 10 grams of marijuana, and possession of controlled substances other than marijuana. After his arrest, Mr. M. stopped maintaining contact with the Department.

At the December 7, 2018, review hearing, Mr. M. agreed that the children should not be placed with him, but he requested unsupervised visitation. The court denied his request, but continued to allow liberal, supervised visitation. Grandmother continued to have custody of the children and temporary, limited guardianship.

The court ordered Mr. M. to maintain consistent contact with the Department, comply with substance-abuse treatment recommendations and submit to random drug screens, maintain stable, clean and hazard-free housing, and obtain gainful employment. In its order, the court informed Mr. M. that the permanency plan could be changed if he failed to make "significant progress to remedy the circumstances that caused the need for removal" or if he was "unwilling or unable to give the child[ren] proper care and attention within a reasonable period of time."

2. December 7, 2018, to May 6, 2019

During the period from December 7, 2018, through May 6, 2019, when the next permanency planning hearing occurred, the Department reported that the children continued to thrive in Grandmother's care. D.M. no longer demonstrated a need for therapy and was doing well in school. J.M. continued to receive in-school therapy and enjoyed spending time with his siblings, including his younger half-brother, E.T., who resided with Grandmother as well.

After his arrest in October 2018, Mr. M. had stopped consistently visiting the children, but had maintained regular contact through video calls and phone calls. Because Mr. M. no longer had a cell phone, the Department was frequently unable to communicate with him. The Department heard concerns from family members that Mr. M. may have been using illegal substances.

At the permanency planning hearing on May 6, 2019, the Department requested that the juvenile court continue the commitment of the children to the Department and continue the limited guardianship with Grandmother. The Department also requested that the permanency plan be amended from reunification with a parent to a concurrent plan of reunification with a parent and placement with a relative for custody and guardianship or adoption.

Mr. M. agreed that he "need[ed] to get himself into a better situation to be able to assume care" for the children. He also agreed with the Department's request for continued commitment and placement with Grandmother. However, Mr. M. objected to the Department's request for a concurrent permanency plan and asked for "a little more time" to move towards the plan of reunification. The court denied the Department's request and continued the permanency plan of reunification.

3. May 6, 2019, to October 11, 2019

At the next permanency plan review hearing, on October 11, 2019, the Department reported that D.M. and J.M. continued to thrive in the stability of Grandmother's care. The Department also reported that Father had tested positive for cocaine and had refused a request to submit to a hair-follicle drug test. He had visited the children "sporadically," had not provided the Department with his address or telephone number, had canceled a scheduled meeting with the Department's representative, and had not responded to requests to reschedule the meeting.

At the permanency plan hearing, Father informed the Department that he had entered a substance-abuse treatment program, but did not provide the Department with documentation confirming his participation in the program. He did, however, submit to a hair-follicle test, which was negative.

Mr. M. agreed to continue the commitment of D.M. and J.M. and to continue the guardianship with Grandmother, but argued for a continuation of the sole plan of reunification. The Department, by contrast, requested that the permanency plan be changed to a concurrent plan of reunification and adoption by a relative, because Mr. M. had not made "a significant change" demonstrating that he was "moving forward ... to actually parent his children[.]"

A magistrate, finding that "appropriate and reasonable efforts were made" to finalize the plan of reunification, recommended the continuation of the sole plan of reunification. The Department filed exceptions to the refusal to recommend a concurrent plan.

4. October 11, 2019, to November 5, 2020

An exceptions hearing was scheduled for January 13, 2020, but was postponed until November 5, 2020, first because Ms. P. was incarcerated, then because of the coronavirus pandemic, and then to allow Ms. P. to obtain counsel. A permanency plan review hearing was scheduled for March 20, 2020, but was postponed until November 5, 2020, first because of the pandemic and then because Ms. P. had not received proper notice.

At the beginning of the October 2019 review period, Mr. M. informed the Department that he had found employment. Nonetheless, he refused to identify the employer or provide documentation of his employment, saying twice that he did not...