Opinion
695-2023
04-11-2024
IN THE APPELLATE COURT OF MARYLAND UNREPORTED [*]
Circuit Court for Baltimore City Case No. T20353005
Reed, Albright, Raker, Irma S., (Senior Judge, Specially Assigned) JJ.
OPINION
ALBRIGHT, J.
On May 15, 2023, after a twelve-day guardianship hearing, the Circuit Court for Baltimore City, sitting as a juvenile court, granted a petition filed by the Department of Social Services ("DSS") to terminate the parental rights of Ms. D ("Mother") and Mr. B ("Father") to their minor child, C.B. Mother and Father both appealed.
The hearing was held on the following days: February 8, 2023; February 9, 2023; February 13, 2023; February 27, 2023; March 13, 2023; April 19, 2023; April 24, 2023; May 2, 2023; May 3, 2023; May 5, 2023; May 8, 2023; and May 9, 2023.
On appeal, Mother presents two issues and Father presents one, which we have combined and rephrased as follows:
Mother presents the following questions for our review:
I. Whether the Court erred in allowing the Baltimore City Department of Social Services, Family Assessment and Investigative Report 181 Narrative in its entirety into evidence?
II. Did the Court abuse its discretion when it terminated the parental rights of S.B. and severing of the parent-child relationship and was this decision in the best interest of C.B.?Father presents the following question for our review:
Did the juvenile court abuse its discretion in finding that termination of Mr. B.'s parental rights and the severing of the parent-child relationship was in C.B.'s best interests?
1. Did the juvenile court err in admitting the entirety of DSS' Family Assessment and Investigative Report ("181 Narrative") into evidence?
2. Did the juvenile court abuse its discretion in concluding that the termination of Mother's and Father's parental rights was in C.B.'s best interests?
For the reasons that follow, we affirm the judgment of the juvenile court.
PROCEDURAL AND FACTUAL BACKGROUND
Initial Report of Neglect and C.B.'s Placement
DSS' involvement with C.B., who is now six years old, began when the child was six months old. In early November 2017, the Baltimore City Department of Social Services ("DSS") received an anonymous report concerning abuse and neglect of C.B. and his four older siblings, M.B., A.B., B.B., and T.B. The report alleged: 1) that Father and Mother were physically and verbally abusive towards their children; 2) that Father and Mother constantly beat C.B.'s older siblings with their fists and open hand, although no bodily injuries were seen on those children; 3) that the home, with three bedrooms, was overcrowded for the family; 4) that the children's personal hygiene was poor, as they wore dirty clothes and had hair lice; and 5) that nine-year-old B.B. was not enrolled in school.
C.B.'s case is the only one on appeal here.
Upon receiving the report, a Child Protective Service (CPS) case worker, Ms. Rebecca Ogunbiyi, visited the children's home on Ramsay Street on November 7, 2017. There, C.B. and his four siblings were living with at least five other people: Father, Mother, Father's sister, her husband (Father's brother-in-law), and her minor child (Father's nephew). The place was owned by Father's sister. Ms. Ogunbiyi interviewed Father, who denied the allegations of child abuse and neglect. At the time, Mother and C.B. were not at home; Father explained that they were at the University of Maryland Medical Center (UMMC) due to C.B.'s rash, indicating that it was just a routine visit.
In our prior opinion on the parents' appeal of the juvenile court's change of permanency plan, the case worker's name appeared as "Rebecca Oglebege." At the guardianship hearing, she clarified that her last name is spelled "O-g-u-n-b-i-y-i."
While Father only mentioned that his "nephew" was living at the home, Ms. Ogunbiyi testified that Father's sister had two minor children, both of whom lived in the same house.
During her visit on November 7, 2017, Ms. Ogunbiyi did not find any sign of child abuse, such as bruises or marks, on the children's bodies; however, she found the house to be "deplorable," which she defined as "more than dirty." Ms. Ogunbiyi testified that the home was "filthy, extremely cluttered, and infested with fleas ...." She also observed that
[T]he living room was, you know, junked with old toys, bicycle . . . beds ....[T]he living room was not livable. One of the room[s] was, you know, that the boys had to have holes in them. And you know, I have [sic] foods that were left open in the house.
The home was also overcrowded and did not have beds for the children. Father and Mother were sleeping on a mattress on the dining room floor. The family was using an open area between the living room and the kitchen as a sleeping place for T.B., B.B., and C.B. Furthermore, the gas and electricity service had been disconnected for months due to non-payment. Ms. Ogunbiyi expressed her concerns about the home's condition to Father. Ms. Ogunbiyi gave the parents one week to clean up the house and obtain suitable beds for the children.
About a week later, when Ms. Ogunbiyi reinspected the home on November 16, 2017, it was clean, clutter-free, and furnished with new bunk beds. However, C.B. was still not present due to his continued hospitalization for a rash. By this time, DSS had also received another report of alleged neglect concerning C.B. from UMMC, dated November 10, 2017. Concerned, Ms. Ogunbiyi visited UMMC the next day, on November 17, 2017, to check on C.B.
This neglect report, as well as UMMC's medical records, indicates that Mother identified her home as being on South Bruce Street.
C.B.'s "rash," as it turned out, involved "excessive amounts of blistering and drainage," which caused him "significant pain and discomfort." After speaking with C.B.'s medical providers at UMMC, Ms. Ogunbiyi also confirmed that the child was suffering from severe fungal, viral, and bacterial infections, including candida, herpes and methicillin-resistant staphylococcus aureus (MRSA). C.B.'s medical records from UMMC provided that C.B.'s skin infection was "likely due to chronic moisture and debris," and "appear[ed] complicated and exacerbated by superinfection" with herpes virus growing in the area.
Candida, or Candidiasis, is "a fungal infection caused by a yeast[.]" Candidiasis, CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC), https://www.cdc.gov/mrsa/community/index.html (last visited Mar. 20, 2024).
MRSA is a type of bacteria that often causes skin infections and, "[i]f left untreated . . . can become severe and cause sepsis - the body's extreme response to an infection." Methicillin-resistant Staphylococcus aureus (MRSA), CDC, https://www.cdc.gov/mrsa/community/index.html (last visited Mar. 20, 2024).
C.B. was failing to thrive. At six months of age, he was found to be at the 50th percentile for weight for a two-month-old, placing his weight at the lower one percentile for his age. This was a significant drop from his weight percentile at birth, which was in the 22nd percentile. C.B. was also at the 50th percentile for length for a three-month-old. Mother acknowledged that she had been feeding C.B. "watered[-]down Cow's milk." While Mother was cooperative with hospital staff, she seemed "uninterested" when a nurse tried to discuss feeding safety as well as skin and wound safety. C.B. also had never been immunized and had not seen a medical provider after his two-month visit because of insurance issues.
The medical staff at UMMC also noted C.B.'s plagiocephaly, or flat head. In addition, C.B. showed signs of developmental delay, had poor head control and low body muscle tone, and was unable to sit up without assistance.
Following her visit with C.B. at UMMC, Ms. Ogunbiyi grew concerned for the safety of the children under the care of their parents, especially regarding the children's medical and educational needs. Ms. Ogunbiyi found that Father and Mother "were not . . . upfront with the medical care with the children[,] [a]nd also, their educational care." She also learned that the parents "miss[ed] a lot of medical appointments" and that "some of the children were not up to date with their immunization," which hindered their enrollment in school. She also found that all the children had head lice. Despite CPS' efforts to assist the parents in obtaining care, Mother remained at the hospital with C.B., and Father appeared overwhelmed with the care of the other children.
On November 21, 2017, DSS filed a Petition with Request for Shelter Care with the juvenile court for C.B. and his siblings. The children were removed from the parents' home. Since the parents did not provide any information about relatives or other individuals available for the children's placement, the five children were placed into foster care with three different non-relative foster families. C.B. was placed with the home of Ms. L.B., a regular foster care home.
B.B. and T.B. were placed in another regular foster care home, and M.B. and A.B. were placed in a treatment foster care. Maryland Regulations define a "treatment foster care," as "a program designed and implemented by a child placement agency to provide intensive casework and treatment in a family setting to children with special physical, emotional, or behavioral needs." COMAR 07.02.11.03(B)(67).
A contested CINA hearing followed. On May 21, 2018, based on the allegations of medical neglect and deplorable living conditions, the juvenile court determined that C.B. and his siblings were children in need of assistance ("CINA").
In the CINA Order, the juvenile court found that: 1) Father and Mother had failed to ensure that the children's medical needs were met; 2) all the children had "poor hygiene, w[ore] dirty clothing, and ha[d] lice"; 3) B.B. and T.B. were behind on their immunizations; 4) T.B., two and a half years old, had never seen a doctor; and 5) B.B., due to her delayed immunization, could not be enrolled in school. In addition, as to C.B., the juvenile court specifically found:
On or about 11/7/17 [C.B.] was admitted to University of Maryland Medical Center (UMMC) where he was diagnosed with Herpes, MRSA, a severe case of impetigo, and plagiocephaly. He had rashes from his neck to his toes that weeped when wipted [sic]. [C.B.] was found to be developmentally delayed and to have poor head control, to be
unable to sit without assistance, and to have low truncal tone. He was found to have a flat fontanel due to poor socialization and prolonged periods of lying without interaction. At the time of his admission [C.B.] was found to be failure to thrive as his weight placed him in the less than first percentile for his age. Medical professionals have indicated that [C.B.'s] diagnosis of failure to thrive is secondary to poor caloric intake in light of mother's admission that she waters down [C.B.'s] formula and in light of [C.B.'s] consistent weight gain while hospitalized. [C.B.'s] medical records indicate that he has only seen his pediatrician one time, at 2 months of age, and that he is behind on his immunizations. According to the treating physicians at UMMC, had [C.B.] attended his routine medical appointments it is likely that his infections would not have been as severe and would not have required hospitalization. At the time of his admission to UMMC [C.B.] was noted to be filthy with dirt under his fingernails and in his diaper.
Also, as to the home condition of the parents, the juvenile court found:
The . . . parents' home is in deplorable condition. The assigned [DSS] safety worker observed the home to be filthy, extremely cluttered, and infested with fleas and flies. There are no beds for the [children] and the parents are sleeping on a mattress on the floor in the dining room. [The children's] parents admitted to the [DSS] worker that the home is unsafe and unsanitary and admitted that the home conditions are because none of the adults in the home clean up after themselves.
Initial Progress Made by the Parents
Immediately following the foster placement of C.B. and his siblings, DSS began working with the parents for their reunification with the children. Ms. Linda Galloway, a DSS case manager, was assigned to C.B. and his siblings. In early December 2017, Ms. Galloway did a health assessment of the parents' home and found the home "very clean" and with "no clutter," but still lacking in electricity. The home was also without hot or cold running water.
The parents soon moved out of the home and relocated to another home nearby, where Father's mother and his brother were residing. The home was a single-family house with only two bedrooms. It did not have enough space for Father, Mother, and their children. The parents did not provide Ms. Galloway the home address or details about the home environment. Until August 2018, the parents had weekly supervised visitation with C.B. and their other children at Banja Center in Baltimore City.
The record is inconsistent as to the specific address of the parents' residences during this time. At the guardianship hearing on February 13, 2023, Father testified that he lived at his mother's place on South Bruce Street between November 2017 and August 2018; at the hearing on May 8, 2023, however, Father testified that he stayed at his mother's place on Ramsey Street for about a month or two before moving to a new home on Santa Fe Avenue in August 2019.
At first, Mother and Father were largely cooperative with Ms. Galloway and made significant progress towards reunification. Ms. Galloway reached out to the parents and communicated with them, mainly with Mother, "three to four times a month." DSS and Mother entered into their first service agreement on January 25, 2018, which required: 1) that she complete a substance abuse assessment; 2) that she complete parenting class through Family Tree; and 3) that she locate suitable housing and provide a lease agreement to DSS. DSS, on its part, agreed to 1) submit an application for a substance abuse assessment for Mother; 2) provide her the phone number to the parenting class; and 3) monitor and follow up on her progress towards reunification. DSS also entered into the same agreement with Father.
DSS' service agreement with Father was never entered into the evidence.
By the time of the first Permanency Plan Review Hearing on August 21, 2018, both parents had successfully complied with all three conditions. Both had completed the substance abuse assessments and parenting classes. Father, a military veteran, began working full-time for multiple security companies. Mother and Father also worked with Project PLASE, a Veterans assistance organization, and secured a home on Santa Fe Avenue ("Santa Fe Avenue home") in August 2018.
Although Ms. Galloway testified that Father was not compliant with the requirement of locating suitable housing and providing a lease agreement to DSS, she acknowledged that Mother, who was living with Father, complied with the requirement. Ms. Galloway also admitted that Father had described his efforts to visit a Veterans Affair office and ask about housing as well as other benefits.
While the juvenile court's order following the August 21, 2018 Permanency Plan Review Hearing states that DSS had referred the parents to a housing assistance program at the Veterans Administration, it is unclear whether that program was Project PLASE. According to Father's testimony, he learned about Project PLASE from a veteran assistance program he found.
Finding that the parents' "progress toward alleviating or mitigating the problems leading to commitment is adequate," the juvenile court granted Father and Mother four-hour unsupervised weekly visits in the community with C.B. and his siblings. In September 2018, DSS approved the Santa Fe Avenue home as suitable for day visits, and the parents began having four hours of unsupervised weekly visits with C.B. and their other children at the home.
By the same order, the parents were granted four-hour unsupervised visits with their other minor children (A.B., M.B., T.B., and B.B.) with possibility of transitioning "to the family home, and or overnight, at the discretion of the assigned [DSS] caseworker."
To maintain their housing and financial stability, Father and Mother continued to work with Project PLASE through Ms. Tyrhonda Josey-Miles, a caseworker from the organization. Project PLASE assisted with the parents' rental payments for the Santa Fe Avenue home. Ms. Josey-Miles also provided Mother with various employment resources, including a referral to an employment specialist and invitations to a job fair and a career workshop. Mother engaged in some of those opportunities. Father provided Ms. Josey-Miles with proof of his employment. With Father's employment and income, Ms. Josey-Miles expected that the family would become fully able to cover their rent by January 2019. According to Ms. Josey-Miles, Mother also expressed that they "had enough income to be able to pay their monthly rent in full and on time moving forward without the assistance of" Project PLASE.
The Parents' Non-Compliance with Service Agreements and Court Order
From that point, however, the parents began struggling with maintaining their earlier progress. In September 2018, Ms. Josey-Miles began having communication issues with both parents. For about a month, Ms. Josey-Miles called and texted the parents, but no one replied. She also visited the parents' home, yet they were not present. After a Family Involvement Meeting ("FIM") on October 22, 2018, the parents communicated with Ms. Josey-Miles on a month-to-month basis but did not attend their weekly case management meetings with her. When the parents failed to show up at the weekly meetings, Ms. Josey-Miles notified Ms. Galloway.
The parents' inability to maintain a stable home environment became an issue. When the parents moved into the Santa Fe Avenue home in August 2018, it was largely unfurnished. To facilitate the parents' overnight visits with the children, DSS purchased a crib for C.B. and two sets of bunk beds for the other children. Project PLASE also paid for a bed for the parents. When Ms. Galloway and Ms. Josey-Miles visited the Santa Fe Avenue home in January 2019, however, they found Father sleeping on a bed in the living room area of the home. The home was also in disarray. Ms. Galloway concluded that the home was not "suitable and sanitary for the children to visit and/or live until the parents address the concerns/issues."
When Ms. Galloway and Ms. Josey-Miles made another visit in April 2019, Ms. Galloway again observed: "the home was not tidy, cluster [sic] on the floor, dust and dirt throughout the home." The home also appeared overcrowded and had inadequate sleeping arrangements; in addition to the parents, Father's mother, sister, brother, and the sister's boyfriend were staying at the place. Mother could not explain where the adults would sleep during the children's overnight visits. When Ms. Galloway asked Father about the sleeping arrangements during the children's overnight visits, Father denied any knowledge, stating that he was at work during that time. Ms. Galloway asked the parents for the full name, date of birth, and social security number for each adult living in the home, but she did not receive that information.
Following those visits, on May 7, 2019, the juvenile court issued an order, requiring the parents 1) to appropriately supervise the children during their visits; 2) to attend family therapy as agreed with DSS; and 3) "not allow any individuals other than [the minor children] to sleep in the bunk beds provided" by DSS.
On June 21, 2019, Ms. Galloway made an unannounced home health inspection at the Santa Fe Avenue home and found the home to be unsafe as well as unsanitary. She saw the house "having roaches, having eggs from the roaches, having eggs, having . . . a broken toilet seat, having a tub that's not clean, having bags of trash in one particular room." A bed was lying in the living room, with a cot and a television at the foot of the bed. Several loose wires, connected to electrical equipment, were also on the floor.
About a month prior to the inspection, during an FIM on May 3 2019, the parents agreed to allow unannounced visits by DSS to verify the condition of their home.
Ms. Galloway explained that the loose wires posed a safety concern to C.B. because the child "could unplug the cord[,] and the television could have fallen on him." Ms. Galloway testified that she suggested to the parents to get "boxes that you can purchases for the cords . . . as opposed to having them open."
As Ms. Galloway entered the children's bedroom, she saw a male adult sleeping in the top bunk. Mother explained that the male was the boyfriend of Father's sister and that he, along with Father's sister, nephew, and the nephew's girlfriend, were unexpected overnight guests. Ms. Galloway informed the parents that they were in violation of the juvenile court's May 7, 2019 order. Ms. Galloway then asked the parents to sign a home health report, but the parents refused.
The home had two bedrooms for the children: one for the female children (T.B. and B.B.) and the other for the male children (M.B. and B.B). It is unclear in which room the male adult was sleeping.
About a month later, on or around July 3, 2019, Ms. Galloway returned to the same home and still "found . . . broken windows, a broken door that actually was . . . off of the hinge." The toilet seat remained broken. The sink and the bathtub were filthy. In the kitchen, roaches were crawling up on the walls, on the ceilings, and inside the refrigerator. Earlier, during a FIM on July 2, 2019, Mother had given her consent to Ms. Galloway's home inspection and been informed that the pictures of the home would be taken.
Ms. Galloway's contact notes, admitted into evidence as DSS Exhibit 66, indicate that the inspection took place on July 2, 2019. On the other hand, the home health report, DSS Exhibit 24, listed the date of the inspection as July 3, 2019. During the guardianship hearing, Ms. Galloway clarified that both refer to the same home inspection.
But the cleanliness of the home was not the only issue. When Ms. Galloway tried to enter certain areas inside the home, Mother denied Ms. Galloway access. Mother expressed that she did not feel comfortable allowing Ms. Galloway to inspect the basement because Father's sister was living there. Mother also denied Ms. Galloway's access to C.B.'s bedroom, stating that Father kept his weapons there. Based on her observation, Ms. Galloway concluded that the home was unsafe. The parents disagreed with Ms. Galloway's conclusion and refused again to sign the home health report.
Following the two failed home inspections, the parents' visitation reverted to supervised visits in the community. Ms. Galloway attempted to reassess the Santa Fe Avenue home, yet the parents denied her entry. The visits progressed to unsupervised visits in the community in the fall of 2019; however, visits never progressed to home or overnight visits again.
Thus, throughout this case, the parents' interactions with C.B. were limited to weekly (and later monthly) day visits and lasted no more than four hours, even though those visits were affectionate. Once the visits moved to the community, they typically lasted just about an hour and a half and took place at a McDonald's or Burger King.
During their visits with C.B. outside the home, the parents rarely provided for the child's needs. While the parents brought food from nearby fast-food restaurants for some of the visits, they did not bring any shoes, clothes, or gifts for C.B. Likewise, in the early stage of the case, when the visits occurred at Banja Center, the parents never brought any baby food, milk, formula, wipes, or diapers to C.B., who was no more than about a year old at the time.
Meanwhile, in June 2019, C.B. participated in a "multi-disciplinary team evaluation" at the Kennedy Krieger Institute following a report of "rocking" behavior. Years before the evaluation, medical providers at UMMC had noted C.B.'s developmental delays in multiple aspects, including his head and body control. While in foster care, C.B. had been receiving speech and language therapy, occupational therapy, behavioral therapy, and genetic counseling. Following the evaluation, C.B., then two years old, was diagnosed with Autism Spectrum Disorder with Associated Language Impairment, Other Symbolic Dysfunction, Global Developmental Delay, and Disruptive Behavior Disorder.
Continued Non-Compliance and Changes of Permanency Plans
At a Permanency Plan Review Hearing on November 22, 2019, C.B.'s permanency plan was changed from a sole plan of reunification with parents to a concurrent plan of reunification with parents and custody and guardianship by a nonrelative. The parents agreed that the change of permanency plan was in C.B.'s best interest. The juvenile court further found that DSS had made reasonable efforts to reunify C.B. with his parents, such as by making home visits, referring the parents for housing assistance, providing financial assistance for furniture, buying bunk beds, and monitoring the status of the parents' housing.
That day, Mother entered a second service agreement, which required that she: 1) participate and follow through with family counseling; 2) attend C.B.'s scheduled medical appointments, including dental and therapy appointments; 3) participate in supervised and/or unsupervised visits with C.B.; 4) maintain a residence and keep her address current with DSS; 5) maintain stable employment and provide pay stubs to DSS; and 6) attend all court hearings regarding C.B. Mother was given until May 17, 2020, to satisfy the requirements. In return, DSS agreed to: 1) provide Mother with information regarding family counseling; 2) inform Mother of C.B.'s scheduled medical appointments, including dental and therapy appointments; 3) arrange regular visits and contacts between C.B. and Mother; and 4) conduct home health inspections to ensure the cleanliness of the home. DSS also prepared a new service agreement for Father, but he never signed it.
In addition, both Mother and DSS agreed to sign a Consent of Release of Information Form so that DSS could track Mother's progress and participation in family counseling.
This time, Mother failed to keep up with the service agreement's requirements. Although DSS made a family counseling referral for both parents, they did not participate. Apart from attending autism evaluation sessions for C.B. in June 2019, neither parent attended any of the child's medical, dental, or therapy appointments. Although Mother became employed at 7-11 and provided DSS her paystubs for a few months, she was then let go from the job. Mother testified that she then worked at a chocolate factory, Home Depot, and Nordstrom, but she failed to provide DSS paystubs from those employers. Father never provided his paystubs to DSS. The parents' housing situation also grew worse. When Ms. Galloway inspected the
Mother only attended the initial counseling session and did not participate in any more family counseling, despite Ms. Galloway's reminder. Father did not attend any counseling sessions. Ms. Galloway explained that the purpose of the family counseling was to help the family "understand and become more connected with each other, be able to communicate better," and help the parents "understand the needs of their children."
The record indicates that there were three or four days of evaluation, all in June 2019. Father attended only one day, while Mother attended all days. At the guardianship hearing, Father denied that he was notified of the other evaluation days.
Santa Fe Avenue home on January 9, 2020, the place did not have running water. The bathroom sink was not working. The refrigerator was inoperable and taped shut. Loose wires were still on the living room floor. The home also had "extreme debris in [the] living area." In general, Ms. Galloway found that the home failed to meet basic health and sanitary standards. On or around February 27, 2020, Ms. Galloway received a call from the landlord of the Santa Fe Avenue home, indicating that the parents had been evicted. The landlord also sent pictures regarding the condition of the home. Shortly afterwards, on March 4, 2020, Mother confirmed that they had been evicted from the Santa Fe Avenue home.
Pictures of various areas inside the Santa Fe Avenue home, including its basement, bedroom, and front and back areas, were admitted into evidence during the juvenile court's change of permanency plan hearing on November 19, 2020.
After the eviction, the parents relocated, resulting in a loss of communication with Ms. Galloway. For months, Ms. Galloway tried to reach the parents via texts and phone calls but received no response. The parents also did not reply to Ms. Galloway's efforts to notify them about C.B.'s upcoming medical appointment in May. Communication with the parents resumed in August 2020, when Mother responded to Ms. Galloway's text message about an upcoming FIM and informed her that they could not attend the meeting. Through December 2020, there was very little communication between Ms. Galloway and the parents, with most, if not all, attempts at contact initiated by Ms. Galloway.
Based on the testimony adduced during the guardianship hearing, it is unclear where, or with whom, the parents were living during this period. On February 13, 2023, Father testified that, after the eviction, they initially lived with his mother and brother on South Bruce Street before moving to his brother-in-law's former residence on Ramsay Street at the end of 2020. On May 8, 2023, however, Father testified that, after the eviction, the parents "had to move back" to his mother's home on Ramsay Street and lived there for almost three years.
Similarly, even though the parents' weekly visits with C.B. resumed in September 2020 following the eviction, those visits became inconsistent and sporadic. Prior to the eviction, both parents attended most of the visits, except some no-shows. However, over the three months from September to November 2020, both parents only attended two weekly visits, one in October and the other in November. The visits continued to take place at a local fast-food restaurant in the community, as the parents never made their home available for another assessment.
After the parents' eviction from the Santa Fe Avenue home, the visits occurred at a Burger King restaurant.
On November 19, 2020, after a contested hearing, the juvenile court changed C.B.'s permanency plan once again, this time from a concurrent plan of reunification and custody and guardianship by a non-relative to a concurrent plan of custody and guardianship by a non-relative and/or adoption. Father and Mother each noted an appeal. In an unreported opinion, this Court affirmed the juvenile court's decision. We recounted the juvenile court's factual findings as follows:
At the same hearing, the permanency plan for B.B. and T.B. also changed to a concurrent plan of custody and guardianship by a non-relative and/or adoption. The permanency plan for M.B. and A.B. changed to a sole plan of custody and guardianship by a non-relative.
In 2017, the family was found living in squalor -- with flies, roaches, no electricity, no beds for the children, and little food. Periodic inspections by the Department showed that they were capable of cleaning up their home upon demand, but they consistently reverted to filth. In addition, Father chose not to work for three years because he said he was missing too much of his kids' childhoods, despite the fact that
his gainful employment during that time period would have gone a long way toward ameliorating the family's situation.
The children also suffered from parental neglect. Mother and Father never took the children to the doctor or the dentist, and thus they were not immunized and had significant tooth decay. As a result, they could not attend school. Infant C.B. was mostly left to lie on his back in a crib, resulting in a flat head. He was diagnosed with severe infections and failure to thrive from insufficient formula intake, which required hospitalization. The children were infested with head lice and their clothes were dirty. There was no evidence presented at the permanency plan review hearing that such neglect would not continue if the children were returned to Mother and Father's care and custody.
After the children were removed from their home, Mother and Father appeared to be on the right track toward reunification. They obtained a new house with the help of the VA. But not long after they moved in, it too was filthy and unsafe, and they were evicted. By the time of the November 2020 permanency plan hearing, Mother and Father were back in the same house from which the children had been removed in 2017, and they agreed it was unsuitable.
Although the parents undisputedly love their children and did attempt to work toward reunification, and the pandemic was undeniably a huge blow to their efforts, they did not, from February 2020 through August 2020, make any effort to communicate with the Department, and they could not stay on the right track to effectuate the permanency plan. By the time of the November 2020 hearing, the children had been in care for over three years and were entitled to more permanency than the parents, despite their best efforts, were able to provide.In Re: M.B., et al., No. 1162, Sept. Term, 2020, 2021 WL 3184702, at *8-9. (Md. Ct. Spec. App. July 28, 2021) (unreported).
Following the change in the permanency plan, the parents' visitation schedule with C.B. also shifted from weekly to monthly. The parents did not attend their first monthly visit in December 2020. While the parents attended most of the monthly visits in 2021 and 2023, they missed seven monthly visits in 2022. Ms. Galloway communicated inperson with the parents following their monthly visits, inquiring about their housing situation. Ms. Galloway and the parents also communicated by text once or twice a month, often through Mother's phone. In most cases, Ms. Galloway initiated those communications with the parents.
According to Ms. Galloway's testimony, C.B.'s parents did not attend the visits in January, March, April, June, July, November, and December. In addition to those missed visits, two (May and August) were cancelled by DSS.
Father testified that Ms. Galloway never responded to his call or text, but he acknowledged that he communicated with Ms. Galloway through Mother when he could not reach her directly.
Ms. Galloway identified one occasion in 2023 when Mother contacted her to give the address of the hotel where the parents were staying. Ms. Galloway also testified that Mother did not give her the specific hotel room number.
On January 21, 2021, DSS filed to terminate Mother's and Father's parental rights to C.B. This was more than three years after C.B. was first placed in foster care.
Father and Mother each filed a notice of objection on February 24, 2021. The guardianship hearing did not start until February 8, 2023. There were multiple postponements, in part due to the parents' failure to attend a court-ordered parental fitness assessment in January 2022 for medical reasons, and another failure to attend a parental fitness and bonding assessment in August 2022. To what extent the overall delay was due to the COVID pandemic is not clear.
C.B.'s Placement with the New Foster Home
In April 2021, C.B. was placed with Ms. B.M. and her husband, Mr. C.D., the child's current foster parents. C.B. was about to turn four years old at the time.
Until then, C.B. had been cared for by Ms. L.B., with whom he was initially placed following his removal from the parents in November 2017. The record indicates that while DSS deemed Ms. L.B.'s home "safe" and "stable for the child," it did not consider her a "suitable resource for long term stability" due to her age.
Following C.B.'s placement with his new foster family, the child showed significant improvements in his development. C.B. began forming relationships with Ms. M.'s extended family members, including her great-grandson who became his close playmate. Though previously described as "non-verbal," C.B. began speaking and became less timid soon after his new foster placement. Ms. M. and her husband ensured C.B. attended doctors' appointments and therapy sessions, including weekly speech therapy. She also enrolled C.B. in Pre-K, and then in kindergarten.
Ms. Galloway continued to visit C.B. in his foster home at least once a month. During her visits, Ms. Galloway observed that C.B. was healthy and communicative. She also found the child's home environment to be clean and safe. Ms. Galloway also observed that C.B. appeared "comfortable" when interacting with his foster family, for example by asking questions or touching them.
In August 2022, about a year and a half after C.B.'s placement with Ms. M. and Mr. D., Dr. Ruth Zajdel, an expert in clinical psychology, parental fitness, and caregiver bonding assessment, evaluated the foster parents' parental fitness and bonding with the child. During the evaluation, both foster parents were highly attentive to C.B. Dr. Zajdel also observed that the foster parents praised and encouraged C.B. throughout the evaluation, and the child "smiled and appeared to be content when praise was given." Based on her observation, Dr. Zajdel concluded that C.B. was "securely bonded" to his foster parents and that he "utilize[d] both of them as a safe base ...."
At the guardianship hearing on February 8, 2023, the juvenile court qualified Dr. Zajdel as an expert witness in those fields.
Dr. Zajdel also evaluated Father's and Mother's parental fitness and bonding with C.B. in September 2022. While Father and Mother both seemed to enjoy spending time with C.B. and were capable of interacting with the child in a proper manner, Father was ". . . clearly more at ease while engaging with [C.B.] and had more success in having reciprocal play and conversation with him." Dr. Zajdel observed that C.B., upon seeing Father, ran to him, calling "Daddy," and spontaneously hugged him. Although C.B. appeared comfortable with both parents, the child did not "demonstrate behaviors that would suggest a secure bond with" Mother, such as seeking out physical touch, reassurance, and engagement with her. Instead, "when [C.B.] did engage with his parents, it was almost always with" Father.
Still, Dr. Zajdel concluded that both parents were ". . . not viable parental resources for [C.B.]" (emphasis in the original). Dr. Zajdel was concerned that the parents seemed unaware of C.B.'s emotional and developmental needs arising from his autism spectrum disorder diagnosis. Father, in particular, expressed that C.B. had been misdiagnosed and appeared "likely [to] be reluctant (or completely unwilling)" to seek any kind of services for the child, despite the fact that C.B. had already been receiving occupational, speech, and physical therapy, and was benefitted by an Individualized Education Plan (IEP). For her part, Mother expressed, "it won't be an issue for [C.B.] to leave foster care and come to us . . . he doesn't have a relationship with his foster parents like that," notwithstanding Dr. Zajdel's observation that the child had established secure and intimate bonds with his foster parents.
Dr. Zajdel was further troubled by both parents' continued denial of the alleged neglect of C.B., because it "suggest[ed] that they are at risk of repeating the same neglectful patterns in the future should [C.B.] be returned to their care." The parents claimed that C.B.'s rash, which resulted in his hospitalization, "was only localized to his neck and had only appeared hours before they took him to the hospital." They also insisted that their home "was not nearly as bad as was suggested in court" and that Ms. Galloway had "lied about the condition of their home." The parents, however, acknowledged that their current home did "not have appropriate accommodations" for C.B. and was not in a safe neighborhood. At the time, the parents were living rent-free on Ramsay Street, the same neighborhood they lived in with C.B. and his siblings back in November 2017.
Parents' Continued Instability
A few months later, on November 11, 2022, when the parents sought housing assistance from Project PLASE for the second time, they were once again homeless, with Mother having recently given birth to their sixth child. The parents were placed in 60-day emergency housing, which was at a motel in Baltimore County. During the emergency period, Mother attended weekly case management meetings with Ms. Tamikko Green, a newly assigned case worker from Project PLASE; Father was said to be at work for most of the time and did not attend the meetings. Project PLASE's goal for the parents was to obtain permanent housing within 90 days.
Project PLASE was unable to locate proper long-term housing for the parents, in part because they insisted on staying in a particular section of Baltimore County despite having at least seven family members. During the 60-day emergency period, Project PLASE could make only one property referral for the parents' long-term housing, but the landlord declined to move forward.
Ms. Green testified that the parents listed themselves and five children in their program intake, although by then they had six children, including the newborn baby.
Once the emergency period ended in early January of 2023, Father and Mother chose not to continue with Project PLASE's housing program. Ms. Green reached out to the parents "two to three different occasions," within a month after they left the program, but Father's phone number was not active and Mother never responded. By the time the hearing on DSS' guardianship petition for C.B. began, the parents were living from one hotel to another without securing a long-term housing.
The Guardianship Hearing
The twelve-day guardianship hearing, which is the subject of this appeal, began in February 2023 and concluded in May 2023. During DSS' case, the following witnesses testified: 1) Mother; 2) Father; 3) Dr. Zajdel; 4) Ms. Galloway; 5) Ms. Josey Miles; 7) Ms. Green; 9) Ms. M, the current foster mother for C.B.; and 10) Ms. T.H., the foster parent for C.B.'s older female siblings, T.B. and B.B. Mother and Father also testified during their cases. The juvenile court heard testimony from the witnesses as to the facts summarized above.
The record indicates that the juvenile court had also terminated the parents' rights to C.B.'s two sisters, T.B. and B.B., in or around 2022, although the precise timing of those proceedings remains uncertain. Ms. T.H., a non-relative foster parent, testified that she was granted custody and guardianship of T.B. and B.B. Nonetheless, in its oral ruling, the juvenile court found no evidence that the parents "lost parental rights at this point." Because no party challenges the juvenile court's factual findings on appeal, we leave this finding undisturbed. There is no evidence in the record as to the guardianship proceedings, if any, concerning C.B.'s other older siblings, M.B. and A.B. or the outcome of such proceedings.
According to Ms. M., C.B. was non-verbal and "couldn't do a lot of things" when he first arrived at her home. C.B. also had not had a lot of interaction with other children and "had nobody to talk to." As C.B. began attending Pre-K and then kindergarten, he also experienced some instances of temper tantrums at school due to his autism, which Ms. M. described as "a battle he fights."
To help C.B.'s adjustment at school, Ms. M. had asked C.B.'s teacher to keep a "book recording" of his behaviors so that she could take it to the child's psychiatrist. C.B. received speech and physical therapy at school and at the Kennedy Krieger Institute. Ms. M. also testified that she helped the child with his pronunciation and handwriting at home, and engaged in "a lot of talking" with him. Ms. M. testified that C.B. was "getting good."
Ms. M. testified that C.B. was in good health and growing up, despite being "still a little scrawny." In terms of potty-training, Ms. M. indicated that C.B. was still "75 percent potty-trained," just as when he first came to her home. Nonetheless, according to Ms. M., C.B. began wearing underwear to school instead of pampers. Ms. M. also stated that C.B. was in good health, and that she had been able to take C.B. to doctors' appointments and therapy sessions. She acknowledged that she sometimes uses a cane due to arthritis, adding that the cane did not keep her "from taking care of C.B., taking him to his appointments, his doctors' appointments, [and] his therapy sessions."
Ms. M. also testified that her family members "just love[d]" C.B. and took him to various events and places, including family outings. C.B. also found a playmate in Ms. M.'s great-grandson, who helped the child's communication with others and adjustment to the new home environment. Ms. M. also testified that C.B. got along "real good" with her other foster child, Isaiah. Ms. M. testified that C.B. once told her, "this is my new family."
Dr. Zajdel offered expert testimony, reiterating her observations and concerns from the parental fitness and bonding evaluation with Father, Mother, Ms. M. and her husband. Dr. Zajdel explained that severing C.B.'s secure bond with a caregiver could have many negative implications, including depression and other mental health problems, difficulties in school, behavioral difficulties, medical complications, and eating disorders. Given C.B.'s secure bond to Ms. M. and her husband, Dr. Zajdel emphasized the importance of the child maintaining a relationship with them.
While Dr. Zajdel acknowledged that C.B. was also securely bonded to Father, and severing the child's bond with him could result in many negative implications too, she opined that both Father and Mother were unfit to parent C.B., given their failure to understand or meet the child's developmental and emotional needs. Dr. Zajdel also testified that the parents failed to attend their originally-scheduled evaluations in August 2022, and then arrived late for the rescheduled evaluations the following month, citing their inability to pay parking fees. Dr. Zajdel testified that she called Ms. Galloway, who gave the parents money to pay the parking fees. Nonetheless, according to Dr. Zajdel, Father expressed frustration with Ms. Galloway and accused her of having lied about the condition of his previous home.
In the meantime, the parents' housing remained unresolved throughout the guardianship proceedings. The parents continued to live at a hotel, and their interactions with C.B. did not go beyond the monthly visits at a fast-food restaurant. In April 2023, Ms. Galloway visited the hotel room where the parents were staying with their new born baby and Father's sister. She concluded that the hotel room "needed to be cleaned," and was "not healthy" for the baby.
In explaining his failure to secure any long-term housing after the eviction from the Santa Fe Avenue home, Father testified that the parents "made multiple attempts to find a house, but during the COVID and all, nobody was - during that time period until recently, nobody was contacting us back." As to why the parents left his family member's home on Ramsay Street, where they stayed after their eviction, near the end of 2020, Father explained that he wanted to get his children back and stay away from the unsafe neighborhood. He denied that his inability to secure stable housing "had [anything] to do with [him] being financially stable." In fact, he testified that he was "financially stable."
The parents repeatedly tried to assure the juvenile court that their lack of housing could be resolved at any time. On February 13, 2023, Father testified that he was still "waiting on [his] house to go through," but expecting to move in "the next couple of days." Three months later, on May 8, 2023, Mother admitted that the parents still had not located proper housing for C.B. Though Mother claimed that she had been working with a townhouse complex named "Riverview," she was unable to provide a specific address for the potential home, explaining, "We don't have the exact address until the lease is signed." Mother also could not provide any kind of timeframe for their move-in, other than stating, "We are waiting for one to come available."
The parents also disputed many of the factual findings in previous orders regarding their home conditions. Both parents denied that their home was in deplorable condition or infested with insects at the time of the children's removal. Father also denied that anyone else other than the parents and his sister resided at the Santa Fe Avenue home. Father explained that the home had a few regular visitors, including his own brother and brother-in-law, as well as Father's mother, who temporarily stayed at the home after some surgery. Father denied that the Santa Fe Avenue home had any exposed wiring, broken doors and windows, or a broken toilet. He also denied that the home was infested with insects.
The parents also denied that they had neglected C.B. and the other children. Mother denied that C.B. was underweight when he was hospitalized in November 2017. Mother and Father both denied having ever been informed of C.B.'s infections, failure to thrive, or developmental delay, until the child was taken from them. Mother acknowledged that C.B. was suffering from "an infection," but "that was it." While Mother acknowledged that the children had head lice, she denied that they were wearing dirty clothes or in poor hygiene. She also denied that C.B.'s older sisters, B.B and T.B., were medically or educationally neglected. Both parents expressed that they could not understand why the children, including C.B., were removed from their care.
DSS then moved into evidence its Family Assessment and Investigative Report, also known as 181 Narrative, which outlined Ms. Ogunbiyi's interviews and investigation outcomes prior to C.B.'s removal from the parents. The 181 Narrative contained Ms. Ogunbiyi's own observation that the parents' then-residence on Ramsay Street was "cluttered with junk[ ], like old ripped mattress in the living room, old ripped sofa in the living room, children bicycles and several items in the living room." It also summarized an FIM on November 20, 2017, where the parents explained their home condition by stating, "I work all the time and the adults don't clean up after the kids." The 181 Narrative further stated that, at the same meeting, the parents were unable to explain why C.B. fell behind his immunization schedule. The 181 Narrative was admitted into evidence in its entirety.
Also contained in the 181 Narrative were statements from multiple healthcare practitioners at UMMC who attended to or observed C.B. during his hospitalization in November 2017. It included statements from some of C.B.'s treating physicians, including Dr. Slattery, who indicated that Mother had been "non-compliant with the baby's medical needs," and C.B.'s "medical needs could have been minimized had it been that this baby [saw] the doctor as he [was] supposed to." The 181 Narrative also included a statement from Ms. Case, a nurse, who noted that C.B.'s plagiocephaly "could indicate[ ] that the baby was always left on his back for long period of time." Mother raised a hearsay objection, arguing that the healthcare practitioners' statements should be redacted, but the juvenile court overruled it.
We discuss the basis of Mother's hearsay objection to the healthcare practitioners' statements in further detail below.
The parents also acknowledged that they never brought baby food, formula, diaper, or clothing items to their visits with C.B., though claiming that they were unaware that they could do so. Father initially testified that he "was never informed to," and then stated that he was told "we didn't have to by CPS." Father also testified that Ms. Galloway told the parents "to bring [C.B.] nothing . . . That he was not allowed to have nothing." Father conceded that he never asked the court as to whether he could bring gifts or clothing items for C.B., but it was "because . . . Ms. Galloway told us something else, told us we couldn't." Mother also testified that she could not bring items for C.B. and that she believed "that had to do with COVID." Mother later testified that the parents "were not to bring anything" from the very beginning of this case. Ms. Galloway denied having ever discussed the subject with the parents.
Juvenile Court's Ruling
On the final day of the guardianship hearing, the juvenile court put its oral ruling on the record, addressing each of the "best interest" factors set forth in Md. Code Ann., Fam. Law ("FL") § 5-323(d).
Those statutory factors are:
(1)(i) all services offered to the parent before the child's placement, whether offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any;
(2) the results of the parent's effort to adjust the parent's circumstances, condition, or conduct to make it in the child's best interests for the child to be returned to the parent's home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is committed; and
3. if feasible, the child's caregiver;
(ii) the parent's contribution to a reasonable part of the child's care and support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently unable to care for the child's immediate and ongoing physical or psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of placement unless the juvenile court makes a specific finding that it is in the child's best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a minor and the seriousness of the abuse or neglect;
(ii) 1.
A. on admission to a hospital for the child's delivery, the mother tested positive for a drug as evidenced by a positive toxicology test; or
B. upon the birth of the child, the child tested positive for a drug as evidenced by a positive toxicology test; and
2. the mother refused the level of drug treatment recommended by a qualified addictions specialist, as defined in § 5-1201 of this title, or by a physician or psychologist, as defined in the Health Occupations Article;
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any court of the United States, of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to commit a crime described in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the child; and
(4)(i) the child's emotional ties with and feelings toward the child's parents, the child's siblings, and others who may affect the child's best interests significantly;
(ii) the child's adjustment to:
1. community;
2. home;
3. placement; and
4. school;
(iii) the child's feelings about severance of the parent-child relationship; and
(iv) the likely impact of terminating parental rights on the child's wellbeing.FL § 5-323(d)(1)-(4).
As to the factors 5-323(d) factors, number 1, Roman Numeral I, the question pertains to all services offered to the parent or parents for the child's placement, whether offered by local department, another agency or a professional.
After [C.B.] was admitted to the hospital, CPS inspected the home and reported that the home was in deplorable condition. The home was cluttered and infest with fleas and flies. [C.B.], however, was placed in foster care immediately after being discharged from the hospital. He remained in foster care in the same home until DSS removed him. DSS placed [C.B.] with Ms. M. and Mr. D., I believe, in 2021. There it seems that C. had began to thrive. His verbal abilities have improved and he no longer requires weekly physical therapy.
Since [C.B.] was placed in foster care directly from the hospital, [DSS] had no opportunity to provide any services to the parents prior to [C.B.]'s placement. I'll note that [C.B.] was approximately six-months-old at the time of his hospitalization.
Roman Numeral II, 'The extent, nature and timeliness of services offered by a local department and to facilitate reunion of a child and parents.' DSS held regular Family Involved Meetings to facilitate efforts at reunion. The plan at first was, in fact, reunion or reunification. DSS offered two Service Agreements to [Mother] and one Service Agreement to [Father]. DSS could have and should have offered Service Agreements to the parents every six months. However, that was not done for various reasons.
Roman Numeral III, 'The extent of which a local department and parent have fulfilled their obligation under a Social Services Agreement, if any.' Both, [Mother] and [Father]
complied with most of the tasks and their respective Service Agreements. The[y] completed parenting classes, drug testing, obtained housing and visited C.B. However, at times the parents were unable or unavailable to [DSS]. There were times that [Father's] phone was disconnected and he changed his phone number on two occasions. Both [Father] and [Mother] were unavailable to DSS because they failed to keep DSS apprised of their living situation after they were evicted.
The one matter in the Service Agreements that this Court recalls not being completed was the requirement for family counseling. The results -- number two, 'The results of the parents' efforts to adjust to parents' circumstances, condition or conduct to make it in the child's best interest for the child to be returned to the parents' home, Roman Numeral I, it included, 'The extent to which the parent has obtained regular contact - or maintained regular contact with the child.' As an aside, Mr. B. has proven, based on his testimony, to be a hard worke[r] in the field of security. He has maintained regular employment for a substantial period of time, although there was a time during the course of these proceedings he was not employed. He has testified that he works 80 to 90 hours a week at times. [Mother] is not employed at this point. She stopped working after she learned that she was pregnant.
Both seemed to have struggled with the ability to adjust their circumstances for the best interest of [C.B.] Their living situation has been one of a significant roller coaster ride and I don't wish to minimize that by staying that, but it's been up and down. They were found in a home that was not suitable for the children. They got on the move and got in contact with the Veterans Administration and obtained suitable housing or at least the makings of suitable housing but they didn't go too much beyond that point, ultimately losing that home. They had been in a home that was deplorable and they began to live with family members from time to time, and they've lived in hotels. Even when they lived at the Sante Fe address, they seemed to focus more on extended family than immediate family. Ultimately, [DSS] observed a male sleeping in one of the children's rooms on the top bunk at the Sante Fe address, if I remember correctly and had to be told that no one,
especially adults should be sleeping in the children's beds that [DSS] provided for them.
'The extent to which the parent has maintained regular contact with the child,' [Mother and Father] have maintained consistent contact with C. for the most part. Initially their visits were weekly, and then they were changed to monthly. However, for the most part, they did make their visits a large part because Ms. Galloway would contact [Mother] about the pending visits.
The local [DSS] of which the child was committed in terms of complying with their responsibilities, the parental responsibilities, neither [Mother], nor [Father] maintained consistent contact with [DSS]. The overwhelming weight of the evidence in the case said Ms. Galloway did the contacting.
And not only did Ms. Galloway have challenges making contact, although it was easier to reach [Mother] than [Father], even the service Project [PLASE] providers was concerned about being able to contact [Father] and had to rely solely on contacting [Mother].
'Contact with the caregiver,' there's no evidence that [Father] nor [Mother] had direct contact with the care providers. It was reported that [DSS'] Transportation Unit took [C.B.] to his weekly and monthly visits with his parents.
Roman numeral II, 'The parents contribution to a reasonable part of the child's care and support if the parent is financially able to do so.' For the most part, [Father] has been financially able to contribute to the care of [C.B.] At times [Mother] has been able to contribute to the care of [C.B.], and that would be his mental health, physical and medical needs. However, neither has provided any meaningful support to [C.B.] They may have purchased food at the visits or brought food to the visits, but in terms of meaningful caring for [C.B.] in a meaningful way is providing for his daily needs and sustenance. They did not do that. And there was testimony that Ms. Galloway or others at [DSS] informed them that they could not or should not -- there's no evidence that there was
any response to any assertions that said that parents could not or should not support their children, but either bringing gifts, clothing, et cetera.
Roman numeral III, 'The existence of a parental disability that makes the parent consistently unable to care for the child's needs and ongoing physical or psychological needs for long periods.' [C.B.] is now six-years-old. He has been in care since he was six-months-old. The permanency plan changed. I believe it was reunification at first or changed to a concurrent plan and a plan that went to guardianship and custody, and the plan was extended.
Although [DSS] has failed to consistently offer Service Agreements, the[y] consistently conducted Family Involved Meetings and facilitated the visitation with [C.B.]
Although [DSS] did not provide housing for the parents, Project [PLASE] did, through the Veterans Administration. They did assist in providing housing and they provided funds initially to get them started in the Sante Fe address housing.
However, at some point, for a myriad of reasons, this family was evicted and they moved back to either living with family, staying at the Red Roof Inn, to an Extended Stay hotel, and it is problematic for this Court that [Father] is working and is able to afford to stay in a hotel on a daily basis for an extended period of time, and with that energy, staying in a hotel room and those resources, that could have very easily been converted to finding a suitable, stable home unless they have created an environment where no one wants to rent to them. That does not seem to be the case in this situation, but it is a possibility.
Another concern is that, and the Court mentioned that earlier, even when the parents were at the Sante Fe Address, DSS found the parents again allowed extended family members to be part of the home, along with their family members.
On one occasion, [DSS] went to the home and [Mother] refused to allow DSS workers to inspect certain rooms or certain locations in the home. [Mother] refused to allow Mr. Galloway to have access to the basement. The rationale for
that was that some family members, extended family members were living down there.
As to the bedroom that [Mother] denied access to, she stated that [Father] stored his weapons there. [Mother] has stated and it's not been disputed that he works in security, and it is of great concern to this Court that [Father], if in fact [Mother's] statement is true, would store his weapons, whatever they are, in the child's room or the children's room.
Number 3(i), 'The parent has abused or neglected the child or a minor and the seriousness of the abuse or neglect.' There's no evidence that the parents have abused [C.B.] However, there is evidence that the parents neglected [C.B.] It is an understatement to say that the medical condition that brought [C.B.] into care should have been addressed sooner. Parents should have keeping up with and inquiring about [C.B.]'s medical appointments.
In addition, [Mother] admitted to diluting [C.B.]'s baby formula. There's some concerns that she might run out of formula that was listed in one of the exhibits. However, her solution was not to [sic] dilute the baby's formula.
According to the evidence, some of the other children who were of school age were not in school because they did not get immunized, according to the requirements. All of these concerns were concerns within the control of the parents and amounts to neglect at least.
Roman Numeral ii(1)(A), 'On admission to a hospital for the child's delivery, mother tested positive for a drug as evidenced by a positive toxicology test.' There is no evidence that [Mother] tested positive for drugs at [C.B.]'s birth, and there's evidence that this Court recalls or (indiscernible)
'Upon the birth of the child, the child tested positive.' The Court does not recall toxicology reports indicating that [C.B.] tested positive.
'Mother refused the level of drug treatment.' There's no evidence that Mother has refused a level of drug treatment and no evidence that Father refused a level of -- any level of
drug treatment they submitted as far as this Court understands the evidence.
Roman Numeral III, 'The parents subjected the child to chronic abuse; chronic and life-threatening neglect; sexual abuse; or torture.' Certainly there's no evidence of torture, sexual abuse or chronic -- let me back up. As far as the abuse, there's no evidence of chronic abuse, but there is evidence of chronic -- to the extent what happened between the child's birth and six months, there's some evidence of threatening neglect, life-threatening neglect. However, since the hospitalization, [C.B.] has not lived with the family, and therefore, there's no way they could have subjected him chronic and life-threatening neglect.
Roman Numeral IV, '(iv) The parent has been convicted in any state or any court of the United States of a crime of violence against a minor offspring of the parent; the child; another parent of the child.' There's no evidence of convictions of either parent against the other or a minor. There's no evidence that either parent has engaged in conduct amounting to aiding or abetting, conspiring or soliciting or committing a crime against each other or the child or [ ] minor children.
Roman Numeral V, 'The parent has voluntarily lost parental rights to a sibling of the child.' There's no evidence that they have lost parental rights at this point.
'The child's emotional ties with and feelings towards the child's parents, the child's siblings, and others who may affect the child's best interests significantly.' There's evidence that [C.B.] has emotional ties to both, his Father and his Mother. Reportedly, and it's undisputed [C.B.] enjoys his visits with his parents. As to the siblings, the Court does not recall any evidence that he's any significant contact with the siblings since being hospitalized, although there were times that they did -- if the Court remembers correctly, they did have some outings together, but it's not clear whether the children were there for each visit.
'The Child's adjustment to the community.' [C.B.'s] community had been in foster care, first, with one set of foster
parents and then with another set of foster parents. With respect to the latter, [C.B.] takes part in activities of the community with his foster family. [C.B.] has developed a fondness for playing on the trampoline and has taken part in other activities with the family.
[C.B.'s] adjustment to the home, he is now in placement. He's been in placement for a period, and he has adjusted well. I think was 75 percent potty trained when we went into placement, I believe, at the last place. And now, that seems to be [sic] an issue at all.
[C.B.'s] placement is his home at this point. And again, he's been 5 1/2 years in placement. In school, [C.B.] has been exposed to occupational therapy. He's also had speech therapy and physical therapy outside of school. I'm aware there's evidence that [C.B.] does not need physical therapy any longer.
'The Child's feelings about severance of the parent/child relationship.' I think (indiscernible) captured that best, given [C.B.'s] developmental delays, it was unclear how [C.B.] feels about the possible severance of the parent/child relationship. It is clear to this Court that [C.B.] knows his parents, as through the testimony. He's delighted to see them either running to them or walking towards them or speaking to them and enjoying even the time that he played or they played with him[.] [O]n occasion some of the children or other children played with him.
'The likely impact of terminating parental rights on the child's wellbeing.' It's certainly difficult to know whether and how terminating the parental right or the parent/child relationship will impact [C.B.] emotionally. One of the concerns is, however, that if this Courts grants the termination of parental rights, it will help solidify a consistency and a stability that [C.B.] has not known.
All the exceptional circumstances in this situation, [C.B.] has been in care for 5 1/2 years. That's an exceptional circumstance. There are strict rules that we're supposed to abide by in trying to bring stability and this process has gone well beyond that.
[C.B.] has developmental concerns and requires attention that maybe other children wouldn't have required. As I said earlier, the parents have demonstrated their love for [C.B.], but they've not demonstrated their ability to care for [C.B.] They've demonstrated an ability to come to Court, an ability to go to Family Involved Meetings, but they know how to obtain resources, such as they were able to get a house that had the makings of a stable house or stable or safe place for [C.B.], but what seems to be missing is the discipline necessary to maintain those resources to maintain a safe environment for [C.B.] They do exceptionally well in unsupervised visits with [C.B.], based on the evidence, but they've failed to demonstrate the ability to parent a child such as [C.B.] Parent a child means providing for that child, not only month-to-month visits or once-a-week visits, but providing for the welfare of their child, the needs of their child, understanding the needs of their child, when a child needs involved medical attention or other types of attention, educational concerns.
This has been a struggle for this Court, but under all the circumstances, this Court finds that [Mother] is not fit to remain in a parental relationship with [C.B.]; [Father] is not fit to remain in a parental relationship with [C.B.] Exceptional circumstances do exist as the Court has outlined. [Mother's and Father's] parental relationship is detrimental to the wellbeing of [C.B.] The Court finds that [DSS] has made reasonable efforts to finalize a permanency plan of custody and guardianship by locating two sets of care providers, ensuring that [C.B.] receive the necessary medical and health services, educational services and therapy, also provided visitation opportunities to the parents and conducted regular Family Involvement Meeting with the parents. They've inspect[ed] the homes to help determine how the visitation should take place.
Under all the circumstances, this Court is granting the Motion or the Petition to Terminate the Parental Rights of [Mother] and [Father].
The juvenile court made this finding in accordance with FL § 5-324(b)(1)(iv), which provides, "[i]n a separate order accompanying an order granting guardianship of a child, a juvenile court . . . shall state a specific factual finding on whether reasonable efforts have been made to finalize the child's permanency plan."
Following the oral ruling, the juvenile court entered two short written orders terminating the parental rights ("TPR Orders") on May 9, 2023 and May 15, 2023, respectively. The May 9, 2023 TPR Order provides that Father and Mother" . . . did not object and [are] therefore deemed to have consented to this guardianship," while the May 15, 2023 TPR Order correctly states that they" . . . filed a notice of objection [and] participated in the hearing with the assistance of counsel." Although the May 9, 2023 TPR Order appears to be in error, it does not affect our analysis herein. The record is clear, and the parties do not dispute, that the juvenile court terminated the parental rights to C.B. for the reasons it articulated at the guardianship hearing. The juvenile court's findings of facts and conclusions of law, announced at the hearing, are before us for review.
Additional facts will be supplemented below, as needed.
DISCUSSION
Evidentiary Ruling of the Juvenile Court
Mother contends that the juvenile court erred by admitting the entire 181 Narrative and failing to exclude statements of UMMC healthcare practitioners because the court never assessed their "knowledge, skill, experience, training or education" under Maryland Rule 5-702, which governs testimony of expert witnesses. She further argues that by admitting those "lay statements of the healthcare practitioners," the juvenile court violated its due process requirement to evaluate 'whether evidence proffered for admission is sufficiently reliable and probative . . .'" (quoting In re Billy W., 387 Md. 405, 434 (2005)). DSS responds that Mother's argument is unpreserved for review and, even if it were, the argument lacks merits. We agree with DSS.
Mother has failed to preserve her argument for our review because her objection below was only based on hearsay, not Rule 5-702.
[COUNSEL FOR MOTHER:] . . . Going down to the bottom of the page, that starts, 'This worker left the hospital after confirming from the nurse Ms. [ ] Case,' et cetera, et cetera, that that be redacted as being hearsay .... Because it refers to hearsay, a hearsay statement by the nurse, Ms. Case.
On the next page, . . . going down to the fourth line . . . I'm asking that from where it says . . ., "Ms. Case indicated that," for the next several sentences down to line 10, that all that be redacted. It's basically statements that are hearsay that apparently a nurse, Ms. Case, is saying to the worker.
The last sentence that I'm asking to be redacted would be, 'Ms. Case said that this could not have been the case when seeing the extent of the spread of the rash.'
On that same page, going down to the next paragraph that begins, 'Dr. Slattery.' ....That sentence, that first sentence, I'm not asking that that be redacted. But I am asking that starting with the second sentence, I would proffer that starts, 'Dr. Slattery disclosed to this worker that,' that from there down to the next to the lasts line on the page, that everything in between be redacted.
So down to - the last sentence that I'm asking to be redacted, the last full sentence on that page would be at the bottom, where it says, 'The doctors noted his limbs were,' et cetera, et cetera.
And your Honor, I'm asking that all that material that I've mentioned be redacted because it is hearsay, statements by the healthcare personnel.(cleaned up) (emphasis added).
Ordinarily, once "counsel provides the trial judge with specific grounds for an objection," only those specific grounds can be brought for our review. Anderson v. Litzenberg, 115 Md.App. 549, 569 (1997). "All other grounds for the objection, including those appearing for the first time in a party's appellate brief, are deemed waived." Id.; see also Grandison v. State, 341 Md. 175, 221 (1995) ("It is well established that appellate review of an evidentiary ruling, when a specific objection was made, is limited to the ground assigned at the time of the objection."). Accordingly, we need not review the juvenile court's ruling on the admissibility of the healthcare practitioners' statements in the 181 Narrative. Grandison, 431 Md. at 221.
Even if we overlook Mother's waiver, we see no error in the juvenile court's ruling that the entire 181 Narrative, including the healthcare practitioners' statements, squarely falls within the public records exception to the hearsay rule. At the guardianship hearing, overruling Mother's objection, the juvenile court explained its rationale.
Generally speaking, most of what has been objected to, [DSS] had a duty to investigate and to report on. And so I'm going to admit - I'm going to overrule the objection and admit the document .... And all of the other objections, the motion to strike are denied because as I said, [DSS] had a duty to investigate and report. And in fact, this report reflects the duties - I mean, the summaries of this report to a large extent, the summaries of their findings of the report, although they acknowledge some things that were not summarized.
Under the public records exception, "a memorandum, report, record, statement, or data compilation made by a public agency setting forth . . . matters observed pursuant to a duty imposed by law, as to which matters there was a duty to report" is presumptively admissible, Md. Rule 5-803(b)(8)(A), unless "the source of information or the method or circumstance of the preparation of the record indicate that the record or the information lacks trustworthiness." Md. Rule 5-803(b)(8)(B). "[T]he burden rests upon the party opposing the introduction of a public record to demonstrate the existence of negative factors sufficient to overcome the presumption of reliability." In re H.R., 238 Md.App. 374, 406 (2018) (citing Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 612 (1985)).
In re H.R. is on point. In that case, Father argued that the juvenile court erred by taking judicial notice of DSS' reports to the court. In re H.R., 238 Md.App. at 401. DSS countered that its court reports were properly admitted under the public records exception. Id. We agreed with DSS, reasoning that the reports were prepared by DSS "pursuant to the duty imposed by law," and thus "presumptively admissible . . . unless Father could show that they were unreliable." Id. at 406 (citing Md. Code Ann., Cts. &Jud. Proc. ("CJP") § 3-826(a)(1)). Because Father there failed to show that the court reports were untrustworthy, apart from asserting that they were "self-serving position papers," we concluded that the reports were admissible as public records. In re H.R., 238 Md.App. at 406-07.
As the juvenile court noted at the guardianship hearing here, the 181 Narrative was prepared by DSS "pursuant to the duty imposed by law," and therefore presumed to be admissible under Rule 5-803(b)(8)(A). In re H.R., 238 Md.App. at 406. The Code of Maryland Regulations (COMAR) 07.02.07.01(B) requires that DSS, through CPS, "promptly determine whether to investigate a report or to initiate a comprehensive family assessment, complete a timely investigation or family assessment appropriate to the circumstances, . . . [and] after conducting a family assessment, complete and distribute a written assessment addressing safety and risk." (cleaned up). Likewise, CPS, as an investigative arm of DSS, is responsible for "stop[ping] and prevent[ing] child abuse and neglect through investigation of child abuse and neglect [and performing] [c]omprehensive assessment of safety, risk, and service needs." COMAR 07.02.07.01(A). Within five business days after completing an investigation, DSS must prepare a "written report of its disposition and any necessary services." COMAR 07.02.07.13(C).
Mother's claim that the juvenile court did not assess the reliability and probative value of the healthcare practitioners' statements fails to rebut their presumed admissibility under the public records exception. The hearsay nature of those statements, by itself, does not render the 181 Narrative any less trustworthy. Ellsworth, 303 Md. at 607. By definition, investigation reports like the 181 Narrative" . . . are not the product of firsthand knowledge on the part of the declarant." Id. at 608. Public records are generally deemed trustworthy due to the reliability of the investigating public agencies and their lack of any motive; Mother does not challenge either aspect. Id. at 607.
As we understand Mother's arguments on appeal, she does not challenge the admissibility of the healthcare practitioners' statements on the basis that those statements were "evaluations or opinions," rather than "factual findings," and therefore not covered by the public records exception. See Ellsworth, 303 Md. at 612. Even assuming that Mother claims as such, her argument is not properly before us since she fails to adequately brief it. See Md. Rule 8-504(a)(6) (requiring appellate parties to present arguments in support of their positions on each issue); Diallo v. State, 413 Md. 678, 692-93 (2010) ("Arguments not presented in a brief or not presented with particularity will not be considered on appeal.") (cleaned up).
But even if any of the healthcare practitioners' statements, including their medical opinions, were admitted in error, Mother still fails to explain how she was prejudiced by the admission of these statements or how their admission affected the juvenile court's decision to terminate her parental rights. Under Maryland Rules, "error may not be predicated upon a ruling that admits or excludes evidence unless the party is prejudiced by the ruling ...." Md. Rule 5-103(a). An error in admitting evidence is not reviewable, let alone cause for reversal, unless the complaining party shows both error and prejudice. In re Yve S., 373 Md. 551, 616 (2003) ("[T]he complaining party has the burden of showing prejudice"); In re Adriana T., 208 Md.App. 545, 572 (2012) (observing that it is "well settled in Maryland that a judgment in a civil case will not be reversed in the absence of a showing of error and prejudice of the appealing party) (emphasis in the original). Moreover, "prejudice means that it is likely that the outcome of the case was negatively affected by the court's error." In re Adriana T., 208 Md.App. at 572.
Because the statements about which Mother complains, or their substance, were covered by other evidence admitted during the guardianship hearing, Mother cannot show that she was prejudiced by the cumulative inclusion of those statements in DSS's 181 Narrative. See In re H.R., 238 Md.App. at 406 (finding no prejudice in admitting DSS' reports because opinion testimony at the guardianship hearing covered the same issues). The healthcare providers' statements about which Mother complains are as follows:
This worker left the hospital after confirming from the nurse Ms. Case that the baby is not for ready discharge anytime soon.
Ms. Case indicated that she was not the one that made the report, neither was she the nurse that admitted the baby, but with the past report and the present condition of the baby it was concerning that [the baby] was not meeting his milestone. She stated that the baby could not sit, or maintain any self-tone at five months, and that the baby presented with flatness at the back of the head, which could indicate that the baby was always left on his back for long period of time. Ms. Case said that the mother the impression [sic] that two days after she noticed the rash, was when she brought the baby to the hospital. Ms. Case said that this could not have been the case, when seeing the extent of the spread of the rash.
Dr. Slattery disclosed to this worker that the caregiver [Mother] has been non-compliant with the baby's medical needs. The baby has not seen the doctor for his shots, there had been several missed appointments. Mr. Slattery stated that the baby medical issues could have been minimized had it been that this baby sees the doctor as be supposed to. The PCP would have alerted the caregiver about the baby failure to thrive issue, and the rash would not have spread like that.
Dr. Lee on the other bands stated that its [sic] unsure if the child is having some genetic problems, but the fact is that caregiver was not taking the baby for his appointments. She indicated that the baby rash was very bad before the caregiver brought the baby to the hospital.
Dr. Lee also stated that the flatness at the back of the head could be as result of genetic problems, but it could also be as result of neglect, where the baby was always made to be on his back for several hours. She said that the failure to thrive could be as result of lack of proper feeding or lack of medical care.
Dr. said that the baby is sure improving daily.
Ms. Case, the nurse, after getting back to her office, printed out the report for this worker. She indicated that the tests that were carried out on the baby tested positive to herpes, candias and staph. Ms. Case said that there is no discharge date for the baby yet, because, the baby is yet to recover from the from the skin infection, plus the fact that after the baby is totally recovered, the hospital will treat the baby with another 6 days antibiotics, which cannot be taken home by the mother to administer, because it is unsure if the caregiver could be trusted to administer it for one month. [sic]
The rash was located on the baby's neck and consisted of yeast, mersa, encino (Sp?) [sic] bacteria. and HSV herpes. When [C.B.] arrived the rash was open in some spots and was bleeding. When asked if the condition of the rash could have become fatal, the doctors answered that the infection could have gotten into the bloodstream and caused fatality. However, that is only possibility. It was not inevitable. The baby also presented with satellite lesions on the face and the heel: of the head as the rash/infection was beginning to spread from the neck. Additionally, the child had one single bug bite on his left leg.
The doctors explained that [C.B.] was also experiencing an increase in muscular tone of his arms and legs. The doctors noted his limbs were harder to move around then typical six-month-old baby.(cleaned up).
DSS contends that the medical records from UMMC, comprising over 500 pages, include diagnoses and medical opinions that are "cumulative" to those in the healthcare practitioners' statements, and we agree. See In re Adoption/Guardianship No. 95195062/CAD in Circuit Court for Balt. City, 116 Md.App. 443, 465 (1997) ("Cumulative evidence is evidence that is substantially same"). During the guardianship hearing, Mother also admitted that the medical records and the 181 Narrative contained the same diagnoses for C.B., including herpes, MRSA, impetigo, and plagiocephaly.
[THE JUVENILE COURT:] Do you dispute that the medical records indicate that [C.B.] was diagnosed with herpes, with so the record is clear, another diagnosis is, 'has MRSA, a severe case of,' I am going to spell it, I-M-P-E-T-I-G-O, and P-L-A-G-I-O-C-E-P-H-A-L-Y. Do you dispute the medical records include that?
[COUNSEL FOR MOTHER:] I do not dispute that.
As DSS points out, the medical records contain "the same information" as the UMMC healthcare practitioners' statements in the 181 Narrative, including their "opinions and presumptions" regarding C.B.'s medical conditions and their possible causes. The records note that the parents' living conditions were "questionable and most likely contributed" to C.B.'s rash, which was worsening with satellite lesions. The records describe C.B.'s "gross and fine motor developmental delays," including his poor head control and inability to "sit unassisted," and highlight the child's "significant plagiocephaly with hair loss" in the back of his head. Regarding C.B.'s failure to thrive, the records state that the child's "weight was found to be at the 50th percentile for a 2[-] month old, and his length is at the 50th percentile for a 3[-] month old," and that his weight fell "from 22nd [percentile] at birth to 1st [percentile] at current weight." The records also noted that C.B., then six-months old, had not had "his 4- or 6-month vaccines yet." Mother's statements, such as that she gave C.B. "cow's milk diluted with water" were also included in the medical records.
To the extent that the healthcare practitioners' statements in the 181 Narrative, or their substance, are absent from the UMMC's medical records, they are present in the juvenile court's CINA order, which was admitted without an objection from Mother. In the CINA order, the juvenile court sustained DSS' factual allegations regarding C.B.'s medical neglect, which were, in turn, based Ms. Ogunbiyi's interviews with UMMC healthcare practitioners as documented in the 181 Narrative.
Even if the juvenile court had excluded all of the healthcare practitioners' statements from the 181 Narrative, there were still enough evidence for the court to make findings about C.B.'s medical conditions and their potential causes. Any error in admitting the healthcare practitioners' statements was therefore harmless.
The Juvenile Court's Termination of Parental Rights
a. The Parents' Contentions
Both parents challenge the juvenile court's ruling of terminating their parental rights on the following basis: first, DSS failed to show that it had made reasonable efforts towards the parents' reunification with C.B.; second, there was no clear and convincing evidence that it was C.B.'s best interest to terminate parental rights; third, the juvenile court failed to give adequate consideration to all of the "best interest" factors under FL § 5-323(d)(1)-(4), particularly C.B.'s "clear loving bond" with his parents. We disagree with all of these arguments.
b. Standards of Review
In reviewing a juvenile court's decision to terminate parental rights, we use three distinct, but interrelated standards. In re Adoption of Ta'Niya C., 417 Md. 90, 100 (2010). We leave the factual findings by the juvenile court undisturbed unless they are clearly erroneous. Id. (citation omitted). We review legal questions de novo, and if the juvenile court erred, further proceedings are ordinarily required unless the error is harmless. Id. Last, the juvenile court's "ultimate conclusion," as long as it is "founded upon sound legal principles and based upon factual findings that are not clearly erroneous," will be "disturbed only if there has been a clear abuse of discretion." Id.; see also In re Adoption/Guardianship of C.A. &D.A., 234 Md.App. 30, 46 (2017) (noting that we give the juvenile court's best interest determination "great deference, unless it is arbitrary or clearly wrong.") (citation omitted).
"[A]n abuse of discretion exists 'where no reasonable person would take the view adopted by the [juvenile] court, or when the court acts without reference to any guiding rules or principles.'" In re M., 251 Md.App. 86, 111 (2021) (citation omitted). In particular, for us to find that the juvenile court abused its discretion in its ultimate decision to terminate parental rights, "the decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.'" In re Shirley B., 419 Md. 1, 19 (2011) (quoting In re Yve S., 373 Md. at 583-84).
c. Analysis
i. DSS' Reunification Efforts
Before finding that termination of parental rights is in the child's best interest, the juvenile court must consider the reasonableness of DSS' services offered to "reunify families and to make it possible for a child to safely return to the child's home." In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 499-500 (2007) (citing former FL § 5-525(d), now § 5-525(e)(1)) (cleaned up). This assessment is made on a case-by-case basis. In re Adoption/Guardianship of H.W., 460 Md. 201, 234 (2018). In determining whether DSS' services were reasonable, the juvenile court must consider "the timeliness, nature, and extent of services offered by DSS," "the extent to which both [DSS and the parents] have fulfilled their obligations" under their service agreements, and "whether additional services would be likely to bring about a sufficient and lasting parental adjustment" for reunification. In re Rashawn H., 402 Md. at 500.
Here, the juvenile court thoroughly considered all the relevant factors and assessed the reasonableness of the services offered by DSS.
That the juvenile court did not expressly use the term "reasonable efforts" is immaterial for the purpose of our review because it is not necessary "to recite the magic words of a legal test." In re D.M., 250 Md.App. 541, 563 (2021) (citation omitted). "The mere incantation of the 'magic words' of a legal test . . . is neither required nor desired if actual consideration of the necessary legal considerations are apparent in the record." Id. (cleaned up).
Roman Numeral II, 'The extent, nature, and timeliness of services offered by a local department and to facilitate reunion of a child and parents.' DSS held regular Family Involved Meetings to facilitate efforts at reunion. The plan at first was, in fact, reunion or reunification. DSS offered two
Service Agreements to [Mother] and one Service Agreement to [Father]. DSS could have and should have offered Service Agreements to the parents every six months. However, that was not done for various reasons.
Roman Numeral III, 'The extent of which a local department and parent have fulfilled their obligation under a Social Services Agreement, if any.' Both [Mother] and [Father] complied with most of the tasks and their respective Service Agreements. The[y] completed parenting classes, drug testing, obtained housing and visited [C.B.]
However, at times the parents were unable or unavailable to the [DSS]. There were times that [Father's] phone was disconnected and he changed his phone number on two occasions. Both [Father] and [Mother] were unavailable to DSS because they failed to keep [DSS] apprised of their living situation after they were evicted.
The one matter in the Service Agreements that this Court recalls not being completed was the requirement for family counseling.
Although the [DSS] has failed to consistently offer Service Agreement, the[y] consistently conducted Family Involved Meetings and facilitated the visitation with [C.B.]
Although the [DSS] did not provide housing for the parents, Project [PLASE] did, through the Veterans Administration. They did assist in providing housing and they provided funds initially to get them started in the Santa Fe address housing.(emphasis added).
In sum, considering the other resources that were available to the parents, the juvenile court did not find DSS' overall efforts to be unreasonably deficient in achieving "a sufficient and lasting parental adjustment" for reunification. In re Rashawn H., 402 Md. at 500. While acknowledging that DSS "could have and should have offered" service agreements to the parents every six months and failed to do so, the juvenile court found that DSS made other efforts, such as holding regular FIMs, contacting the parents, and facilitating their visits with C.B. The juvenile court also found that, even when DSS did offer service agreements, the parents did not comply with many terms of the agreements, such as participating in family counseling and keeping DSS apprised of their home environment. The juvenile court further noted the parents' repeated failure to make themselves available to DSS, as "there were times that [Father's] phone was disconnected and he changed his phone number on two occasions."
We see no clear error in the juvenile court's findings regarding DSS' efforts to facilitate reunification. See In re Shirley B., 419 Md. at 18 ("[W]e apply the clearly erroneous standard when reviewing the juvenile court's factual finding that the Department made reasonable efforts to preserve and reunify the family"). "Under the clearly erroneous standard, we look at the record in the light most favorable to the prevailing party, and if there is any competent, material evidence to support the [juvenile] court's findings of fact, we cannot hold that those findings are clearly erroneous." Fitzzaland v. Zahn, 218 Md.App. 312, 322 (2014). Neither parent assert that the juvenile court's factual findings were not based on competent evidence.
Instead, the parents point to what they think DSS should have done and claim that DSS' failure to do so renders its reunification efforts less than reasonable. While Father does not deny that his phone was disconnected for a period of time and that his phone number was changed twice over the past five and half years, he argues that DSS should have sent a letter to his last known address or contacted his family members. Mother likewise argues that DSS should have assisted the parents "in getting back on their feet."
Although the parents' arguments, in essence, amount to disagreements with the juvenile court's weighing of the evidence, "our function is not to determine whether, on the evidence, we might have reached a different conclusion." In re Abiagail C., 138 Md.App. 570, 587 (2001) (cleaned up); see also In re J.R., 246 Md. App 707, 751 (2020) (noting that the juvenile court is "in a far better position than is an appellate court" to weigh evidence) (citation omitted).
At any rate, DSS' reunification efforts do not need to be perfect. In re H.W., 460 Md. at 234. DSS is "not obliged to find employment for the parent, to find and pay for permanent and suitable housing for the family, to bring the parent out of poverty, or to cure or ameliorate any disability that prevents the parent from being able to care for the child." In re Rashawn H., 402 Md. at 500. Nor is DSS
required to allow children to live in temporary shelters or to grow up in permanent chaos and instability . . . because their parents, even with reasonable assistance from DSS, continue to exhibit an inability or unwillingness to provide minimally acceptable shelter, sustenance, and support for them.In re Shirley B., 419 Md. at 26 (quoting In re Rashawn H., 402 Md. at 500-01) (cleaned up). Rather, DSS' efforts only need to be "reasonable" enough to enable the parents ". . . within a reasonable time . . . to care for the child in a way that does not endanger the child's welfare." In re Rashawn H., 402 Md. at 499-500 (emphasis added).
Here, the juvenile court found that, despite reasonable assistance, the parents remained unable to care for C.B. in a manner that does not endanger the child's welfare, because they failed to maintain and utilize the assistance they received. See In re Rashawn H., 402 Md. at 499-500. For most of the five-and-half year period, as the juvenile court found, the parents were unable to provide a suitable home environment for C.B. or maintain regular contact with DSS, despite continued assistance from both DSS and Project PLASE. The evidence shows that DSS gave the parents a referral to a housing assistance program at the Veterans Administration, and that the parents did become enrolled in Project PLASE thereafter. Nevertheless, even when the parents found stable home environment at Santa Fe Avenue, they did not comply with directives from DSS and the juvenile court, failed home health inspections, and refused a re-inspection. On multiple occasions, particularly following their eviction from the Santa Fe Avenue home, the parents did not keep DSS informed of their living situation. For months after the eviction, the parents did not respond to Ms. Galloway's text messages and phone calls and missed multiple weekly visits with C.B. Because the competent and material evidence suggested that the parents, even with additional assistance, would continue to "exhibit an inability [and] unwillingness to provide minimally acceptable shelter, sustenance, and support" for C.B., the juvenile court did not clearly err in finding that DSS' reunification efforts were reasonable. In re Rashawn H., 402 Md. at 501.
In fact, except for the time when they resided at the Santa Fe Avenue home, the parents' accounts of their home address were inconsistent and self-contradictory. In early November 2017, when C.B. was hospitalized at UMMC, Mother provided her home address as located on South Bruce Street; during the same period, Ms. Ogunbiyi was inspecting the parents' home on Ramsay Street. Likewise, Father initially testified that, following their eviction from the Santa Fe Avenue, he lived with his mother and then moved to his brother-in-law's former home on Ramsay Street; however, at a later hearing, he testified that he moved to his mother's home at the same address on Ramsay Street, following his eviction. In light of this evidence, the juvenile court was not clearly erroneous in concluding that the parents were unable to provide C.B. a suitable home environment.
ii. Sufficiency of Evidence
We now discuss whether the juvenile court's ruling terminating parental rights was supported by clear and convincing evidence. In a guardianship proceeding, "the focus of the inquiry . . . revolves around whether the continued parental relationship is detrimental to the child's best interest." In re H.W., 460 Md. at 231. Where the child's best interest is the primary consideration, the juvenile court's conclusion "is accorded great deference, unless it is arbitrary or clearly wrong." In re C.A. &D.A., 234 Md.App. at 46.
The juvenile court may grant a petition for guardianship when, after considering the factors under FL § 5-323(d), it finds by clear and convincing evidence that parents are unfit or that exceptional circumstances exist that would make the continued relationship detrimental to the child's best interest. See In re H.W. 460 Md. at 217. In this case, the juvenile court made both findings.
We have noted that "the parental unfitness, exceptional circumstances, and the child's best interests considerations are not different and separate analyses." In re Adoption of Jayden G., 433 Md. 50, 96 n.32 (2013) (citing In re Ta'Niya C., 417 Md. at 105-06). When considered under the "best interest" facts set forth in FL § 5-323(d), "[t]he three concepts-unfitness, exceptional circumstances, and best interests-are fused together, culminating in the ultimate conclusion of whether terminating parental rights is in a given child's best interests." In re H.W., 460 Md. at 219 (quoting In re Jayden G., 433 Md. at 96 n.32).
All the exceptional circumstances in the situation, [C.B.] has been in care for 5 1/2 years. That's an exceptional circumstance. There are strict rules that we're supposed to abide by in trying to bring stability and this process has gone well beyond that.
[C.B.] has developmental concerns and requires attention that maybe other children wouldn't have required. As I said earlier, the parents have demonstrated their love for [C.B.] but they've not demonstrated their ability to care for [C.B.] They've demonstrated an ability to come to Court, an ability to go to Family Involved Meetings, but they know how to obtain resources, such as they were able to get a house that had the makings of a stable house or stable or safe place for [C.B.,] but what seems to be missing is the discipline necessary to maintain those resources to maintain a safe environment for [C.B.] They do exceptionally well in unsupervised visits with [C.B.] based on the evidence, but they've failed to demonstrate the ability to parent a child such as [C.B.] Parent a child means providing for that child, not only month-to-month visits or once-a-week visits, but providing for the welfare of their child, the needs of their child, understanding the needs of their child, when a child needs involved medical attention or other types of attention, educational concerns.
This has been a struggle for this Court, but under all circumstances, this Court finds that [Mother] is not fit to remain in a parental relationship with [C.B.,] [Father] is not fit to remain in a parental relationship with [C.B.] Exceptional circumstances do exist as the Court has outlined. [Mother,] [Father] parental relationship is detrimental to the wellbeing of [C.B.](emphasis added).
The juvenile court also addressed and made findings as to each of the relevant factors in its oral ruling, and the parents do not dispute that the juvenile court considered all the factors under FL § 5-323(d) before terminating their parental rights. The parents instead challenge the juvenile court's conclusions that they were unfit to parent C.B. and that exceptional circumstances existed that made the continuation of the parental relationship detrimental to C.B.'s best interest, contending that those determinations were based on "insufficient evidence." Specifically, the parents claim that the DSS failed to present any evidence regarding C.B.'s emotional ties to his siblings or any other family members. Father also claims lack of evidence regarding the potential emotional impact of the termination of parental rights on C.B.
In addition, Mother claims that the DSS "didn't even consider whether there was a suitable family member to take care of the children," but the record shows otherwise. Ms. Ogunbiyi's testimony provides that C.B. and his siblings were placed in foster homes because the parents did not provide the CPS any information about relatives or other individuals who might be available for the children's placement. The parents also did not raise such objection at the November 22, 2019 Permanency Plan Review hearing, where the juvenile court added custody and guardianship by a non-relative as a concurrent permanency goal for C.B.
The parents' contentions are misguided. DSS need not affirmatively show, nor is the juvenile court required to find, the lack of emotional ties or absence of negative emotional impact to support the conclusion of parental unfitness or exceptional circumstances by "clear and convincing" evidence. "[A]lthough the juvenile court must consider every factor in FL § 5-323(d), it is not necessary that every factor apply, or even be found, in every case." In re Adoption/Guardianship of Jasmine D., 217 Md.App. 718, 737 (2014). The juvenile court does not need to find the presence of every statutory factor in every case by clear and convincing evidence. As long as the juvenile court addresses all statutory factors, finds either parental unfitness or exceptional circumstances, and expressly determines that the child's best interest lies in terminating the parent's rights, "the parental rights we have recognized and the statutory basis for terminating those rights are in proper and harmonious balance." In re Rashawn H., 402 Md. at 501.
That is precisely what the juvenile court here did here. In its oral ruling, the juvenile court laid out factual underpinnings to support that both Mother and Father were unfit to remain in parental relationships with C.B. See FL § 5-323(b); In re Rashawn H., 402 Md. at 501. The juvenile court emphasized the parents' lack of "discipline necessary to maintain a safe environment for [C.B.]," noting that the parents apparently knew how to obtain resources but were not able to maintain such resources, as [t]hey . . . obtained suitable housing or at least the makings of suitable housing but they didn't go too much beyond that point, ultimately losing that home." The juvenile court also noted that the parents' interactions with C.B. were limited to brief, DSS-facilitated visits, each lasting no more than a few hours, largely due to their inability to maintain safe and suitable housing for the child. The juvenile court further found that while the parents occasionally brought fast food for C.B., they never provided essentials items the child needed, such as diapers and clothes. The juvenile court also heard the parents' testimony, during which they denied having any knowledge of C.B.'s infections and failure to thrive, conditions that led to the child's foster placement in November 2017, and found that the parents did not demonstrate the ability to "provid[e] for the welfare of their child . . . [or] understand [] the needs of the child when a child needs involved medical attention or other types of attention[.]"
In light of those factual findings, the juvenile court did not abuse its discretion in concluding that the parents' lack of discipline in providing and maintaining suitable home environment for C.B. renders them unfit to remain in the parental relationship with the child. Since the juvenile court here found the parents to be unfit, their continued parental relationship with C.B. is, by definition, detrimental to the child. In re Jasmine D., 217 Md.App. at 736. The juvenile court was therefore neither arbitrary nor clearly wrong in concluding that, due to parental unfitness, termination of parental rights was in C.B.'s best interest.
We also see no abuse of discretion in the juvenile court's conclusion that exceptional circumstances warranted the termination of the parental rights. "The exceptional circumstances alternative is meant to cover situations . . . in which a child's transcendent best interests are not served by continuing a relationship with a parent who might not be clearly and convincingly unfit." As we explained, ""[i]n addition to being mandatory considerations prior to a termination of parental rights, the factors outlined in FL § 5-323 also serve 'as criteria for determining the kinds of exceptional circumstances that would suffice to rebut the presumption favoring a continued parental relationship and justify termination of that relationship.'" In re C.A. and D.A., 234 Md.App. at 50 (quoting In re Rashawn H., 402 Md. at 499). Those additional criteria include:
[T]he length of time that the child has been with his adoptive parents; the strength of the bond between the child and the adoptive parent; the relative stability of the child's future with the parent; the age of the child at placement; the emotional effect of the adoption on the child; the effect on the child's stability of maintaining the parental relationship; whether the parent abandoned or failed to support or visit with the child; and, the behavior and character of the parent, including the parent's stability with regard to employment, housing, and compliance with the law.In re C.A. and D.A., 234 Md.App. at 50 (citing In re Adoption/Guardianship No. A 91- 71A, 334 Md. 538, 562-64 (1994)).
Here, the juvenile court considered all the additional criteria as well as the mandatory factors under FL § 5-323(d). In its oral ruling, the juvenile court repeatedly mentioned that C.B. had been in foster placement for five and half years and that the termination of parental rights would "help solidify a consistency and a stability" that C.B. had never experienced. The juvenile court heard testimony from Dr. Zajdel, who spoke on C.B.'s bond with the parents as well as with the foster parents. The juvenile court also heard testimony from C.B.'s current foster mother, Ms. M., and Ms. Galloway regarding C.B.'s developmental progress in foster care and found that the child "ha[d] adjusted well." In addition, as noted above, the juvenile court discussed the parents' inability to "parent" C.B. notwithstanding the child's needs for a heightened level of care.
Overall, the juvenile court addressed all relevant factors, made findings of parental unfitness and exceptional circumstances as required, and expressly determined that the child's best interest lay in terminating the parents' rights. In re Rashawn H., 402 Md. at 501. We see no abuse of discretion.
iii. "Adequate" Consideration of Statutory Factors
Finally, while the parents do not dispute that the juvenile court considered all the relevant statutory factors under FL § 5-323(d), they argue that the court failed to consider those factors "adequately." Specifically, Mother argues that the juvenile court did not give enough weight to C.B.'s "clear loving bond" with both parents.
At the guardianship, the juvenile court made following findings regarding C.B.'s bond with his parents.
'The child's emotional ties with and feelings towards the child's parents, the child's siblings, and others who may affect the child's best interests significantly.' There's evidence that [C.B.] has emotional ties to both, his Father and his Mother. Reportedly, and it's undisputed [C.B.] enjoys his visits with his parents.
It is clear to this Court that [C.B.]'s knows his parents, as through the testimony. He's delighted to see them either running to them or walking towards them or speaking to them and enjoying even the time that he played or they played with him[.] [O]n occasion some of the children or other children played with him.
Thus, in reaching the conclusion that termination of parental rights is in C.B.'s best interests, the juvenile court expressly considered the bond between the child and his parents. Under FL § 5-323(d), the juvenile court is not required "to weigh any one statutory factor above all others. Rather, the court must review all relevant factors and consider them together." In re Jasmine D., 217 Md.App. at 736 (quoting In re Adoption/Guardianship No. 94339058/CAD, 120 Md.App. 88, 105 (1998)). It is also not our role as an appellate court "to determine whether, on evidence, we might have reached a different conclusion." In re Abiagail C., 138 Md.App. at 587 (citation omitted).
The parents' arguments also overlook that the juvenile court did not base its decision on the parents' lack of bond with C.B. but rather on their persistent lack of "discipline necessary" to care for C.B. While the juvenile court acknowledged that the parents had formed a bond with C.B. and "did exceptionally well" during their day visits with the child, the court then highlighted the parents' ongoing failure to maintain a suitable home for the child, to provide for the child's welfare, and to understand the child's needs, including medical and educational ones. See In re Jasmine D., 217 Md.App. at 736 (affirming the juvenile court's decision that a parental bond was not sufficient to outweigh other indicators of parental unfitness). Again, on appeal, neither parent challenges the substance of the juvenile court's factual findings.
The juvenile court's weighing of statutory "best interest" factors was neither arbitrary nor clearly wrong, and therefore it demands "great deference." In re C.A. & D.A., 234 Md.App. at 46. Ample evidence in the record supports the juvenile court's conclusion that terminating parental rights was in C.B.'s best interest. Since there was no abuse of discretion in the juvenile court's conclusion, we affirm. In re Ta'Niya C., 417 Md. at 100.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.
[*] This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B).