In re Yaritza H.

IN RE: YARITZA H.

No. 1846

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

June 3, 2015

UNREPORTED

Wright, Reed, Alpert, Paul E. (Retired, Specially Assigned), 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 is a case involving Yaritza H. ("Yaritza"), who has been adjudicated by the Circuit Court for Montgomery County, sitting as a juvenile court, to be a Child in Need of Assistance or CINA.¹ Yaritza's biological mother, Flor H. ("Ms. H.") appeals from the juvenile court's Permanency Plan Hearing Order, dated October 2, 2014.² On appeal tothis Court, Ms. H. questions whether the juvenile court "err[ed] by changing Yaritza's permanency plan[.]"³

We have jurisdiction pursuant to Section 12-303(x) of the Court's Article, Md. Code (1974, 2013 Repl. Vol.), § 12-303(x) of the Courts & Judicial Proceedings Article, and shall affirm in all respects.⁴

BACKGROUND

Introduction

Yaritza was born on October 8, 2013, and almost immediately came to the attention of the Montgomery County Department of Health and Human Services ("Department"). The hospital where Yaritza was born became concerned for her welfare and contacted the Prince George's County Department of Social Services. Yaritza's case was soon referred to Montgomery County because the mother, Ms. H., lived there with her brother.

On October 21, 2013, the Department filed a petition with the juvenile court seeking a judicial determination that Yaritza is a CINA. The petition alleged a "history of child neglect and substance abuse" and represented as well that Ms. H.'s participation in or compliance with various programs and services, that were ordered in connection with other cases involving Yaritza's older siblings, were unsuccessful.

On October 21, 2013, the juvenile court issued a Shelter Care Order, and, based on the allegations in the petition, placed Yaritza in the temporary care and custody of the Department pending further action. On November 3, the Department filed the "1st Amended Child in Need of Assistance Petition."

Pre-trial Settlement Hearing - November 5, 2013

The parties participated in a pre-trial settlement hearing before the juvenile court on November 5, following which the juvenile court issued an Interim Order, which included the following finding:

[¶] 3. That, pursuant to Rule 11-114 and Md. Code, Courts and Judicial Proceedings Article § 3-817, the allegations in the First Amended Child in Need of Assistance Petition aresustained by the Court against the Mother by the agreement between the County, the Child, and the Mother.

Hearing - November 14, 2013

A hearing was conducted on November 14, 2013, at which time the juvenile court addressed allegations relating to the child's father, Rubio, who failed to appear or accept responsibility for the child; the juvenile court sustained allegations with respect to him. Ruling "on the basis of th[e] sustained facts" in the petition, the juvenile court found that "Yaritza's placement's [was] necessary to protect her from serious immediate danger." The juvenile court explained that "[t]here's nobody able to provide supervision or protection for her and continued placement in her home is contrary to her welfare." The court continued:

THE COURT: And on the basis of those findings I will find that Yaritza has been neglected. And her parents, Ms. H. by agreement and [father] in absentia, are unable or unwilling to give proper care and attention to her and her needs. . . .

Counsel for the Department then pointed out that Ms. H. and the Department had submitted a "list a recommendations that had been agreed to - by mother, those regarding the child and herself[.]" The juvenile court then ruled as follows, based on the recommendations proffered by the Department:

THE COURT: Okay. On the basis of the facts sustained in the first amended child in need of assistance p[etition] I'll make the following orders. With regard to disposition, that Yaritza is a child in need of assistance under the jurisdiction of the Court or now placed under the jurisdiction of the Court. Committed to the Department of Health and Human Services Child Welfare Services for placement or continued placement in foster care. A limited guardianship . . . for medical, educational, and travel purposes. Visits between mother, Ms.H., and Yaritza's supervised minimum twice a week under the direction of the department not to include overnights. Ms. H will participate in and complete a substance abuse program that included urinalysis and breathalyzer testing. But until she is admitted to such a program she will undergo twice weekly urinalysis and breathalyzer testing under the direction of the department. Ms. H. will also undergo a comprehensive psychological evaluation and comply with treatment recommendations under the direction of the department. And that she participate in parenting education under the direction of the department. . . .

On November 18, the juvenile court filed the Adjudication and Disposition Order to reflect the rulings from the bench. The juvenile court found that the allegations in the CINA petition had been established by a preponderance of the evidence. The juvenile court found that Yaritza was a Child in Need of Assistance (CINA) and committed her to the Department for "continued placement in foster care[.]"

The Order directed Ms. H. to:

1) Participate in and complete a substance abuse program that includes urinalysis and breathalyzer testing, and follow all recommendations;

2) Participate in urinalysis and breathalyzer testing, twice weekly, prior to beginning a substance abuse program;

3) Complete a comprehensive psychological evaluation and comply with all treatment recommendations; and

4) Participate in parenting education;

all under the direction of the Department[.]

The juvenile court also reaffirmed the limited guardianship with the Department at a review hearing on April 28, 2014. The juvenile court reaffirmed the permanency plan of reunification.Volviendo A Vivir

Ms. H. enrolled in a substance abuse treatment program, Volviendo A Vivir ("VAV"), at La Clinica del Pueblo, on December 18, 2013, and graduated on June 17, 2014. According to Maria Paige, the Substance Abuse Services Manager, and Ernesto Cedeno, a Substance Abuse Counselor, the VAV "treatment team applaud[ed Ms. H.'s] dedication to her recovery and sobriety maintenance and her positive attitude towards improving her life." Another letter from La Clinica, this one authored by Alma Hamar, the lead mental health therapist, reported that Ms. H. "attended all the sessions and was awarded a certificate of completion in June 18, 2014."

In anticipation of the permanency plan hearing, the Department reported that since being discharged from the VAV program, Ms. H.:

has not been compliant with the discharge recommendations which include weekly attendance with La Clinica del Pueublo's substance abuse support group, participation in Alcohol Anonymous Meetings, creating productive activities during free time, and implementing a personal prevention plan to maintain sobriety.

Permanency Plan Hearing - October 2, 2014

The facts that are most relevant to the issue raised on appeal were developed at the contested permanency planning hearing on October 2, 2014. The juvenile court heard testimony from Lakeisha Barksdale and Ms. H. Ms. Barksdale was accepted without objection as an expert in the field of social work.

Ms. Barksdale testified that Yaritza was "doing extremely well" with her maternal aunt and uncle. She had noticed some developmental delays that afflicted the child:

[DEPARTMENT'S COUNSEL:] - did you come to learn what caused those developmental delays?

A Yes. Recently Yaritza had an MRI, and she was also seen by a neurologist. And a lot of the causes were due to substance abuse. She's currently being followed by Infants and Toddlers, I believe twice a week, because of those delays.

Q And when you say substance abuse, substance abuse by whom?

A The mother.

Q And Yaritza, when was, at what age was Yaritza removed from the mother?

A I believe immediately after the hospital. Maybe one or two days, I'm not exactly sure. But I know immediately after being born.

Ms. Barksdale monitored Yaritza's placement by visiting the aunt, and also sought to facilitate visits between Ms. H. and Yaritza. She testified that Ms. H. had completed only about "5 out of 32 visits," and during those visits required "a lot of coaching."

Ms. Barksdale kept in touch with Ms. H.'s substance abuse case manager every month. She also provided resource information, telling Ms. H. about free medical clinics in response to the latter's medical issues, specifically, a case of poison ivy. Ms. Barksdale elaborated:

Q Okay, and why did you provide that information to her?

A The mother showed up at the [Family Involvement meeting] . . . stating that she had poison ivy. And then later changed her story that she had some medical condition.

We were concerned about mom's health, as well as the baby's, so we provided her with free clinics where she could be checked out by a doctor.

She reiterated that the Department provided "free clinic information."

Ms. Barksdale explained that Yaritza had been referred to the Infants and Toddlers program "[b]ecause of the delays they witnessed on the case[.]" When asked about the referral of Ms. H. to Dr. Richard Ruth, the psychologist, Ms. Barksdale explained that Dr. Ruth would be "more culturally sound" in relating to Ms. H. The doctor had yet to complete a psychological evaluation, however, because his communication with Ms. H. has been "infrequent."

Ms. Barksdale acknowledged that while Ms. H. had completed a substance abuse program, she failed to finish the recommended aftercare program. The social worker elaborated:

Q And by not completing the

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