In re J.M.

IN RE: J.M., JR..

No. 2180

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

July 25, 2017

Circuit Court for Montgomery County

Juvenile Petition No. 06-I-16-000082

UNREPORTED

Wright, Berger, Leahy, JJ.

Opinion by Wright, 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.

On May 13, 2016, a Child in Need of Assistance Petition ("CINA") was filed by the Montgomery County, Maryland Department of Health and Human Services/Child Welfare Services ("the Department"), alleging that J.M., Jr. ("J.M."), a ten year old child, was a CINA because his legal guardian, his maternal grandmother ("Grandmother"), was unable to meet his mental health needs.¹ On May 31, 2016, sitting as a juvenile court, the Circuit Court for Montgomery County held a CINA adjudication and disposition hearing. The court found that the facts were sufficient to demonstrate that J.M. was a CINA as a result of his mental health needs.

At a review hearing on October 25, 2016, the court sua sponte scheduled a hearing to determine whether his maternal aunt ("Aunt") was a de facto parent. The hearing took place on November 17, 2016, and December 20, 2016. The juvenile court determined that Aunt was a de facto parent, granting her equal party status with the natural parents.

Mother timely appealed.² We have reworded her questions for clarity.³

I. Does a juvenile court have jurisdiction to award de facto parent status in a CINA case?

II. Did the Circuit Court for Montgomery County, sitting as a juvenile court, err when it determined that the child's maternal aunt was a de facto parent as described in Conover v. Conover, 450 Md. 51 (2016)?

For the reasons discussed below, we reverse the juvenile court's award of de facto parent status to Aunt, and we remand for a review hearing to assess J.M.'s current status and to determine if additional guardianship or custody proceedings are required.

Facts

CINA Adjudication

Since 2008, J.M. has received therapy and psychiatric treatment, and he has been diagnosed with Post Traumatic Stress Disorder and Attention Deficit Hyperactivity Disorder.

On May 13, 2016, an Emergency Shelter Care Order was granted following the filing of a CINA petition by the Department. The order placed J.M. at St. Vincent's Residential Treatment Center ("St. Vincent's").⁴ The juvenile court made findings that J.M. was in the legal and physical custody of Grandmother following a consent order entered by Prince George's County Circuit Court on September 16, 2009, but noted that J.M. had resided with Aunt for the past six years by agreement between Grandmother and Aunt. J.M. had not been in the custody of Mother since 2008, when the Circuit Court for Prince George's County awarded Grandmother sole custody. J.M. has never been in the custody of Father and has had extremely limited contact with Father.

On May 31, 2016, the court held a CINA adjudication and disposition hearing. The parties to the hearing were J.M., the Department, both natural parents, and Grandmother as J.M.'s legal guardian. Aunt was not a party to the proceedings. Both parents and Grandmother consented to the facts in the First Amended CINA Petition. The juvenile court sustained the facts and found they were sufficient to demonstrate that J.M. was a CINA because Grandmother's mental health and physical needs prevented her from effectively caring for J.M.'s mental health needs.⁵

Following the emergency shelter and care order, J.M. was placed under the jurisdiction of the juvenile court and committed to the Department for placement at St. Vincent's. Visitation and phone calls between J.M. and Mother, Father, and Grandmother were ordered to be supervised in accordance with regulation of St. Vincent's and to occur when deemed clinically appropriate. The court added an additional provision for visitation with relatives.

Review Hearings

Review hearings were held on July 12, 2016, September 6, 2016, and October 25, 2016.

At the review hearing on July 12, 2016, the Department stated that it was in J.M.'s best interest to be reintroduced to his biological parents. Both parents agreed they did not want to do anything disruptive and cooperated with the clinicians. At this hearing, Mother's counsel stated that this was "an alienation case where there was something tragic that happened when [J.M.] was 2 and that [Mother] was alienated from him over time." Counsel continued, "there are a lot of serious issues regarding [Aunt], which are not addressed in the court order because she's not a party . . . ." Finally, counsel stated that, "[o]ne of the things that happened in this alienation process is that [J.M.] was told [by Aunt] that [Mother] was going to cut off his head if he saw her, and that's from [J.M.] himself." Counsel for Grandmother requested that the introductions occur while J.M. was in placement so that St. Vincent's could respond to any ramifications.

At the review hearing on September 6, 2016, the Department reported concerns about J.M. having unsupervised visits with Aunt and Grandmother, in part because of challenges in determining what traumas may have occurred in J.M.'s early life, and in part due to concerns about the mental health status of Grandmother and Aunt. The Department reported that Mother was doing everything that she needed to do to reintroduce herself into J.M.'s life. J.M.'s counsel and the Department agreed that the St. Vincent's was waiting for direction from the juvenile court to make determinations about progressing therapeutically with the natural parents.

At the review hearing on October 25, 2016, the Department reported that J.M. was doing better, but that he was still struggling in an academic setting. It was reported that J.M. had a supervised visit with Mother, and Mother's confidential psychological evaluations had concluded that she did not have any significant mental health issues that may negatively impact J.M.'s mental health treatment. The psychologist recommended that Mother be permitted to continue to engage in the therapeutic process.

Also at the October 25, 2016 hearing, the juvenile court sua sponte scheduled a hearing to determine whether Aunt was a de facto parent.

De Facto Parent Hearing

The de facto parent status hearing took place on November 17, 2016, and December 20, 2016. Aunt testified that J.M. came to reside with Grandmother on July 8, 2008, and in August of 2008, Grandmother was awarded "full temporary custodianship."From the time the order was issued, J.M. lived with Grandmother and Aunt.⁶ In 2011, they all moved to a house that was broken into apartments. The children lived in a unit with Aunt, and Grandmother lived in a separate one-bedroom apartment. Since moving to this address, Mother visited Grandmother, but not Aunt, and Mother could see J.M., but to Aunt's knowledge, J.M. did not know Mother was there.⁷

The juvenile court asked Aunt a series of questions that related to the factors to be considered for de facto parent status. Specifically, the court asked Aunt to talk about "how, if at all, [Mother] consented to and fostered the relationship between you and J.M." Aunt replied, "I don't - I would say it wasn't direct. If anything it was indirect simply by the amount of time he came to start spending at our home and the degree of interaction that we had - that I had to have with him . . . ." Aunt stated that she did not know what Mother might have known about their living arrangement, and that Grandmother would be more likely to answer questions about what Mother knew because she was in touch with her. Aunt again confirmed that she and J.M. had lived in the same household since 2008. The court directed Aunt to respond to whether she had assumed obligations of parenthood by taking significant responsibility for the child's care, education, and development, including contribution towards the child's support, without expectation of financial compensation. Aunt produced documents that showed payments for child care and stated that her salary alone supported J.M. before Grandmother obtained disability.On cross-examination, Aunt acknowledged that she received social security income for J.M., once he was in her care, for which Grandmother had applied as J.M.'s custodian. Finally, in response to the court's question about whether Aunt had been in a parental role for a length of time sufficient to have established a bond with the child, Aunt testified that she has attempted to create an environment to allow J.M. to thrive, that she taught him values, and she shared stories about their time together, including that J.M. was trying to teach her how to play chess.

Grandmother then testified that she did not contact Mother to advise her of the 2011 move. She stated that she never told Mother who was taking care of J.M., and Mother never asked. Grandmother believed that Mother was aware that J.M. was living with Aunt in addition to living with her. Grandmother also stated that Mother expressed concerns about Aunt's involvement in J.M.'s life, including that Mother "always expressed concerns whenever there was anything that involved [Aunt]. [Mother] and [Aunt] have had this ongoing animosity from childhood." Grandmother stated that she did not think that Mother was aware that Aunt was engaged in activities such as taking J.M. to his Individualized Education Program meetings. When asked about Mother's lack of visitation with J.M., Grandmother explained that Mother would often not call for several months at a time, and that Grandmother had prevented contact between Mother and J.M. because a therapist told her that the court order required that. Grandmother again explained that at the old apartment, she had allowed Mother to see J.M., but Mother could not speak with him and J.M. did not know she was present. Grandmother alsoconfirmed that J.M....