In re K.A.

IN RE: K.A.

No. 0472

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

December 7, 2016

Circuit Court for Cecil County

Case No. 07-I-14-000060

UNREPORTED

Arthur, Reed, Beachley, JJ.

Opinion by Reed, 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.

This appeal arises from a decision of the Circuit Court for Cecil County, sitting as a juvenile court, to change the permanency plan for K.A.,¹ from a plan of reunification with her father to a primary plan of adoption by a non-relative. Appellant, Mr. A., who is K.A.'s father, filed a timely notice of appeal of the juvenile court's order,² presenting three questions for our review:

1. Did the court err by finding the Department made reasonable efforts toward the permanency plan of reunification?

2. Did the court err by changing K.A.'s permanency plan?

3. Did the court err by excluding the father and his attorney from the child interview without considering the father's due process rights or articulating a reason for the exclusion?

For the following reasons, we answer each question in the negative, and accordingly, affirm the juvenile court's order.³

FACTUAL AND PROCEDURAL BACKGROUND

K.A. was born on June 20, 2003. Throughout her life she has been in the custody of several people. Upon her mother's incarceration, K.A. was placed in the custody of her maternal grandmother. On July 23, 2010, when the grandmother could no longer care forK.A., she placed her with a family friend, H.B. At that time, H.B. was in a relationship with M.C. When that relationship ended, K.A. remained in the custody of M.C. M.C. was awarded legal guardianship and remained responsible for K.A. until June 2014.

In June 2014, the Cecil County Department of Social Services (the "Department") received a child protective services referral regarding a physical altercation between K.A. and M.C. M.D. and C.D., friends of M.C.'s who have known K.A. since she was six years old, agreed to care for K.A.⁴ On September 16, 2014, after K.A. had lived with the D.s for several weeks,⁵ M.D. contacted the Department and advised that he and his wife could no longer care for K.A., then age eleven, because she had significant behavioral issues.⁶ K.A. also advised M.D. and C.D. that she did not want to live with them. The Department contacted M.C. who said she no longer wanted to care for K.A. or be legally responsible for her.

The Department held a Family Involvement Meeting on September 23, 2014 to discuss K.A.'s safety and well-being. No family attended, but M.D. and C.D. were present. While they expressed a desire to remain a support system for K.A., the D.s decided that it would be best for K.A. to be in the custody of the Department. At this time, the Department had been unable to determine the whereabouts of either of K.A.'s parents.

On September 24, 2014, the Department placed K.A. at St. Vincent's Villa Diagnostic Center for a comprehensive evaluation of her mental health needs. At the September 25, 2014 shelter care hearing, the juvenile court authorized K.A.'s continued placement with the Department. M.C. appeared at the hearing to advise the court that she no longer wanted to be involved in K.A.'s life and the court excused her further participation.

On October 15, 2014, the juvenile court held an adjudicatory and disposition hearing. Counsel for Mr. A. requested a continuance, explaining that she had recently learned that Mr. A. was incarcerated in Pennsylvania and had not had an opportunity to speak with him yet. The court denied the request and determined K.A. to be a Child in Need of Assistance ("CINA").⁷ The court found that K.A.'s parents failed to provide a stable home for her and were therefore unable or unwilling to provide K.A. with proper care. The court ordered that K.A. remain in the custody of the Department until further review.⁸

Mr. A. timely appealed the CINA decision on November 14, 2014, arguing that he was denied the right to participate in the hearing in a "meaningful way," despite hisincarceration.⁹ This Court agreed and remanded the case for a new hearing. Mr. A. entered into a service agreement with the Department on February 28, 2015, before the new hearing was held, in an effort to be reunified with K.A. upon his release.¹⁰ The service agreement provided that Mr. A. would participate in drug and alcohol counseling, complete a mental health evaluation, comply with parole and probation when released, and establish and maintain safe and stable housing. The Department provided Mr. A. with updates on the case through periodic letters.¹¹

The new CINA hearing occurred on May 20, 2015, and Mr. A. participated by telephone. He testified that he wanted to reestablish a connection with K.A. and agreed to the previously entered into service agreement, explaining that he would need an order from the court in order to receive services in the Pennsylvania correctional facility.¹² Again, the court found that K.A. was CINA and noted that Mr. A. "certainly appear[ed] to be ready to make valiant efforts toward getting ready for his release and being able to be a parent again."

The permanency planning hearing was set for December 16, 2015. At Mr. A.'s request, the hearing was postponed. Nonetheless, the court conducted an age appropriateconsultation with K.A. pursuant to CJP §3-823. Neither Mr. A. nor his counsel were present for the consultation. The court authorized K.A.'s counsel to place details of the conversation with K.A. on the record. Counsel stated:

K.A. met with Judge Murray today for her consult. K.A. told Judge Murray that she played all-star softball this year. She's also playing on a travel team for softball. She was a pitcher. K.A. enjoys playing softball. K.A. went to New York with her foster family. They went to Central Park. They also went to a Broadway show, Matilda. K.A. enjoyed the three-day trip. K.A. is in the seventh grade at [middle school]. She does well in school. She does struggle in math. She stays in school on Tuesdays to receive extra help. Her foster parents are looking for a math tutor.

K.A. also confirmed that she wanted to be adopted by her foster parents. She said, "It's better than being with my real parents because they really don't know how to take care of me, I guess." She further explained that because her parents had been in jail "so many times" it was unlikely that they would be able to care for her now "because they haven't changed yet."

Afterwards, Mr. A.'s counsel stated for the record that she believed the child interview was inappropriate because she was excluded. She moved that K.A. be produced as a witness at the rescheduled hearing so that she could present additional questions to be asked. The court denied the motion, stating it "ha[d] seen no authority for" granting such a motion.

Change in the Permanency Plan - April 2016

The permanency planning hearing was held on April 6, 2016. The Department argued that the permanency plan should be changed to adoption by a non-relative and stressed that Mr. A. had not been in contact with K.A. for the past seven years. The Department also stated that adoption was a "strong possibility" and that K.A. was doing well with M.D. and C.D. Counsel for K.A. agreed with the Department and provided further that it would take "some period of time" before Mr. A. was ready to care for K.A., which was not in her best interest.

Mr. A. called the Department's social worker, Catherine Burke, as a witness. Although she was the social worker in this case for approximately eleven months, Ms. Burke testified that she was unaware of the Service Agreement Mr. A. signed in February of 2015. She testified further that she had been in contact with Mr. A. and drafted another service agreement, but that he would not provide any information or speak to her without his attorney being present. Ms. Burke stated that she did not offer Mr. A. any services other than periodic updates on K.A. On cross-examination, Ms. Burke testified that she spoke with Mr. A.'s attorney about visiting Mr. A. together, but nothing has happened as a result of that conversation.

Mr. A. also testified at the hearing, participating by telephone. He testified that he planned on residing in Delaware upon his release and that Delaware's Department of Social Services was helping him identify employers who hire felons, as well as helping him secure his birth certificate and social security card. He also confirmed that the last correspondence he received from the Department was in December of 2015, approximately four monthsprior to the hearing. Mr. A. stated that it would take him approximately six months from the date of his release to have "a stable residence and a stable job and enough money to provide" for K.A.

After considering all evidence, the court ruled as follows:

***

I am troubled that a Service Agreement was never signed. R.A. indicates he did not want to talk to the Department without his lawyer being present. I find that disingenuous on his part if he truly wanted to participate in a Service Agreement, which really from what I see only said stay in touch with us and tell us where you are. I find that to be inappropriate on his part and did not help his cause any as far as reunification. Had there been more contact and had he agreed to talk and even to do so by correspondence - it was copied to his lawyer - that would have - you could have been a little further along in at least conversation with his daughter.

***

The court finds that K.A. does - is in a placement that is in her best interest right now. The court also notes that by my calculations there's an eighteen-month period of time where things are in limbo. The court notes that K.A. at her age does not deserve another eighteen months of uncertainty. That what is in her best interest is to go forward now with

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