In re K.H.

In re: K.H.

Nos. 0212-2021, 0321-2022

Court of Special Appeals of Maryland

December 16, 2022

Circuit Court for Wicomico County Case Nos. C-22-JV-18-000191 C-22-JV-000032

Graeff, Reed, Friedman, JJ.

OPINION ^[*]

Reed J.

This case is a consolidated appeal of two related cases: (1) a case regarding changing the child's ("K.H.") reunification with Mother, K.D. ("Appellant"), to the child being adopted by foster parents in a Child In Need of Assistance ("CINA") proceeding; and (2) the subsequent decision to terminate Appellant's rights and permit the adoption in the Termination of Parental Rights ("Termination") case. Specifically, Appellant challenges the juvenile court's April 12, 2021 interlocutory CINA order, which altered K.H.'s permanency plan from a concurrent reunification plan, or custody and guardianship to a relative, to a sole adoption plan, and (2) the juvenile court's April 20, 2022 order issued in a separate guardianship proceeding which granted Wicomico County Department of Social Services guardianship and terminated Appellant's parental rights.

This matter began when Appellee, Wicomo County Department of Social Services ("DSS") placed K.H. in shelter care on August 14, 2018 and discovered that she was born "substance exposed" about a month prior. Subsequently, DSS filed for a CINA proceeding. The juvenile court conducted a CINA proceeding on October 3, 2018. Fourteen days later, the trial court conducted a disposition hearing, awarding DSS a limited guardianship to place K.H. in a foster home.^[1] When the court granted DSS limited guardianship, neither parent was granted visitation. At the time, DSS's permanency goal for K.H. was reunification. After Appellant's inconsistencies with meeting the requirements of her permanency plan and a negative hair-follicle drug test in November 2020, DSS sought to change K.H.'s permanency plan to adoption. Ultimately, on April 7, 2021, the circuit court approved DSS's request to change K.H.'s childcare plan to adoption. Subsequently, on April 12, 2021, Appellant filed her notice of appeal addressing the change of the permanency plan.

Amid the CINA proceedings, on April 30, 2021, DSS shortly thereafter filed its first Termination petition, resulting in concurrent CINA and Termination proceedings.^[2]However, on April 19, 2022, the CINA proceedings ceased when the circuit court terminated Appellant's parental rights. On April 25, 2022, Appellant promptly filed a notice of appeal. Concurrently, this Court stayed Appellant's CINA appeal ^[3] several times, beginning on May 20, 2021. Eventually, on May 12, 2022, we consolidated the CINA appeal and Termination appeal.

In bringing her appeal in consolidated case nos. 0212 and 0321, Appellant presents three questions for appellate review, which we rephrased for clarity: ^[4]

I. Whether the juvenile court erred in holding DSS made reasonable efforts at relative placement for K.H.?

II. Whether DSS use of the Interstate Compact on the Placement of Children contributed to the juvenile court's error?

III. Whether the juvenile court properly found that K.D.'s parental rights should be terminated?

IV. Whether the juvenile court complied with the Indian Child Welfare Act?

For the following reasons, we affirm the juvenile court's decision.

Factual &Procedural Background

K.H. was born on July 6, 2018, to Appellant and Father.^[5] When K.H. was born, Appellant admitted that K.H. was born "substance exposed." DSS received a report that stated Appellant tested positive for cocaine and marijuana. Upon discharge, DSS took K.H. and later placed her in shelter care on August 14, 2018. DSS extended K.H.'s stay in their physical custody multiple times and on August 21, 2018, filed a CINA petition.

Subsequently, the juvenile court held the adjudication hearing and disposition hearing in October. The magistrate issued proposed findings and separate orders for each hearing and signed both proposed orders a month later. The court sustained DSS's allegations in the CINA petition and found K.H. to be a CINA. The court also held that the Indian Child Welfare Act ("ICWA") did not apply.

Termination of Parental Rights (TPR) Proceedings

Amid CINA proceedings, including Permanency Plan Review Hearings, on April 30, 2021, DSS shortly thereafter filed its first Termination petition, resulting in concurrent CINA and Termination proceedings. However, on April 19, 2022, the CINA proceedings ceased when the trial court terminated Appellant's parental rights. On April 25, 2022, Appellant filed a notice of appeal of the trial court's decision. Concurrently, at the appellate level, the Court of Special Appeals stayed Appellant's CINA appeal (CSA-REG-0212-2021) several times, beginning May 20, 2021 Eventually, on May 12, 2022, we consolidated the CINA appeal and Termination appeal (CSA-REG-0321-2022).

Permanency Plan Hearing

Throughout the CINA case, the juvenile court conducted multiple permanency plan hearings. Initially, on January 29, 2019, the juvenile court adopted DSS's permanency plan of reunification concurrent with custody and guardianship to a relative. DSS and the juvenile court maintained this plan throughout the July 12, 2019 and October 16, 2019 Permanency Plan Hearings. However, the court prohibited DSS from placing K.H. with a relative without facilitating an Interstate Compact on the Placement of Children ("ICPC") study.

DSS focused on granting Appellant substance abuse treatments and ultimate reunification. However, Appellant did not fully or consistently participate in all the programs. Nonetheless, Appellant progressed with her treatments enough for DSS to grant Appellant unsupervised sessions with K.H., beginning on July 28, 2020. Despite Appellant's progress, the Magistrate's Report and Recommendation endorsed by the court further recommended Appellant continue visitations once a week, as well as Appellant submitting a hair follicle drug test for reassurance and to have it on file. The Magistrate Report and Recommendation also recommended that Appellant submit the hair follicle test within three months.

However, as of October 30, 2020, Appellant did not submit a follicle test to DSS. In turn, on October 30, 2020, a DSS senior supervisor emailed K.H.'s then case worker about this, and as such, suggested DSS should "move forward with a bonding study between the child and foster parents," and to plan for Family Involvement Meetings ("FIM") to change plans to seek permanent plans for adoption. Appellant eventually submitted a hair-follicle drug test in November 2020 and tested positive for cocaine. Despite this test result, DSS resumed supervised visits between Appellant and K.H. ^[6]

Relative Placement and Interstate Compact on the Placement of Children

During K.H.'s initial shelter care treatment, Father's niece, D.M. ("Niece"), contacted K.H.'s family and DSS to potentially serve as a relative placement option. Initially, Niece resided in Nevada and beginning on August 2 2018, she participated in Family Involvement Meetings. DSS submitted and later re-submitted a revised request to Nevada for an ICPC home study for Niece's home. On March 27, 2019, Nevada authorities approved Niece's ICPC home certification, and later, on June 13, 2019, Nevada granted Niece a full license to operate a foster home in Nevada for K.H.'s placement particularly. DSS informed the court of Niece's ICPC confirmation on August 14, 2019. In May 2020, Niece relocated to California and attempted to complete a California home study. DSS did not move forward with obtaining California ICPC approval and ceased communication with Niece for about seven months. Niece reached out to DSS to inquire about the ICPC process. In response, on February 9, 2021, DSS responded to Niece stating that DSS is now pursuing adoption and was no longer considering Niece's family as primary placement.

Indian Child Welfare Act (ICWA)

Appellant contends that she is a descendant of the Blackfoot and Micmac Tribes and thus the Indian Child Welfare Act ("ICWA") governs jurisdiction over the case at bar. Appellee contends that the juvenile court correctly determined that ICWA does not apply because Appellant was unable to prove that she and K.H. are of Native American heritage. ICWA is a United States federal law that governs jurisdiction over the removal of Native American children from their families in custody, adoption, and foster care cases. See 25 U.S.C. §§ 1901-1963.

Appellant states that she discovered this information regarding her alleged Native American heritage on or before August 21, 2018 and later informed DSS. DSS reported to the court that they sent information regarding Appellant's alleged Native American heritage to the United States Department of Interior, Indian Affairs via certified mail and by email to a Micmac Tribe representative before August 27, 2018. DSS completed a "Notice of Child Custody Proceeding for Indian Child" and stated that they mailed it on August 23, 2018. On July 21, 2021, DSS sent additional correspondence to the Aroostook Bank of Micmac Indians, including both the CINA and Termination case numbers, to inquire about Appellant and K.H.'s Native American heritage and filed a copy of their inquiry to the court on September 15, 2021. DSS included that Appellant alleges that she was born in Canada to Native American parents but was raised by non-Native American parents via closed adoption.

On August 26, 2021, the Aroostook Band of Micmac Indians responded to DSS stating that neither Appellant nor K.H. were enrolled members because they lacked enough information to qualify. Similarly, a representative from the Bureau of Indian Affairs ("BIA") along with another piece of correspondence from the Aroostook Band of Micmac stated that...