Opinion
1353-2022
04-25-2023
IN RE: K.H.
Circuit Court for Cecil County Case No. C-07-JV-21-000028
Wells, C.J., Nazarian, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ.
OPINION [*]
Wells, C.J.
This appeal arises from a child-in-need-of-assistance ("CINA") case in the Circuit Court for Cecil County, sitting as a juvenile court. After a permanency planning hearing in September 2022, the court added a concurrent plan of custody and guardianship by a non-relative to K.H.'s existing plan of reunification with his grandmother D.P. ("Appellant"). Appellant presents one question for our review:
Did the court err and abuse its discretion in modifying the permanency plan to a concurrent plan of reunification and adoption by a non-relative? For the reasons to follow, we shall affirm the judgment of the juvenile court.
In Appellant's opening brief filed in this Court, Appellant's counsel's argument centered on the mistaken belief that the court modified K.H.'s permanency plan to include a concurrent plan for adoption. The Department's appellate counsel correctly responded: "Contrary to [Appellant's] claim in her brief, . . . K.H.'s permanency plan in no way provides for 'adoption.'" In Appellant's reply brief, Appellant's counsel acknowledges the mistake: "The Department correctly notes early on in its brief that appellant misidentified the permanency plan as changing to 'adoption,' instead of 'custody and guardianship.' . . . Counsel regrets the error." At any rate, Appellant's counsel contends: "The misidentification of the permanency plan in the Appellant's Brief does not change Appellant's argument in any meaningful way."
BACKGROUND
A. The CINA Petition
In April 2021, the Cecil County Department of Social Services ("the Department") filed a petition stating that K.H. was a CINA because of Appellant's neglect. The petition alleged the following factual background.
K.H. "was in the custody of his maternal grandmother, [Appellant,] because his natural mother . . . is disabled." The Department received a referral in March 2021, when K.H. was eight years old:
The referral stated that police had responded to [Appellant's] residence 11 times in the past few weeks due to domestic violence between [K.H.'s] grandparents. Allegedly, [K.H.'s grandfather] pulled a gun on [Appellant] in the presence of the minor. It was also alleged that [Appellant] had stabbed her husband recently.
Appellant then began staying at a domestic violence shelter. However, "[b]ecause [Appellant] did not comply with the rules of the DV shelter[,] she was not allowed to continue to stay there." The Department then learned that Appellant and K.H. "had gone to stay with [Appellant's] daughter[,]" who is K.H.'s mother, in Delaware.
The Department completed a "Request for Assistance to Delaware and workers from that state located [K.H.] and [Appellant]" at K.H.'s mother's residence. Appellant "was intoxicated when the Delaware worker found her" in April 2021. As a result, "the Delaware worker safety[-]planned the minor with" a relative, but that relative "was only able to care for [K.H.] through the night." K.H. "need[ed] to be removed by the Cecil County Department of Social Services because "there was no other appropriate family member to care for [K.H.] and because [K.H.] had been a resident of MD until recently[.]"
The Department "received reports concerning [Appellant's] substance use[,]" and Appellant "had at least two recent charges of driving under the influence of alcohol[.]" "Because of concerns over alcohol use, domestic violence between the grandparents, and the inability to identify an appropriate caregiver for the minor, it was decided to remove the minor" in April 2021.
B. The Shelter Care Order and the Adjudication
Later that month, the court issued a shelter care order, finding that "[i]t is contrary to the child's welfare to remain in the home of [Appellant]" because Appellant's "alcohol use and the domestic violence in the home" caused Appellant's residence to be an "unsafe place for" K.H. K.H. was then picked up by the authorities and placed in shelter care pending the adjudication hearing scheduled for the following month.
"'Shelter care' means a temporary placement of a child outside of the home at any time before disposition." Md. Code, Cts. & Jud. Proc. § 3-801(bb).
The first scheduled adjudication hearing was postponed to June 2021 because Appellant had not been advised of her right to counsel and appeared without counsel. At the next scheduled hearing, Appellant appeared with counsel, submitted on the CINA petition, but Appellant "denie[d] any facts that would allege wrongdoing by her in this case." The court found "that the report as submitted is sufficient to support a finding of the young man being a child in need of assistance." The court found K.H. was a CINA because he had been neglected and Appellant had been "unable/unwilling to give proper care and attention to the child and the child's needs." K.H.'s counsel stated that K.H. "noted . . . a number of times that he wanted to stay" in foster care and "that he felt very safe.... [T]hat is one thing that [K.H.] was very clear about." Appellant's counsel reported that Appellant "does wish to enter into inpatient rehab and would like the assistance of DSS in order to make that happen." Appellant was not opposed to supervised visitation, and the court ordered supervised weekly visitation between Appellant and K.H.
C. The November Review Hearing
At the review hearing in November 2021, the Department asked the court to continue to find that K.H. was a CINA. The Department "believe[d] that [Appellant] continue[d] to demonstrate poor insight into alcohol use and the impact of her drinking and domestic violence had in the home on [K.H.]" Moreover, K.H. "continue[d] to display signs of distress and anxiety involving visitation with [Appellant]."
Appellant's counsel claimed that K.H. should be returned to Appellant, noting that Appellant "has done all aspects of her service agreement[.]" Appellant completed a psychological evaluation, inpatient alcohol rehabilitation, and was undergoing outpatient treatment at Project Chesapeake.
Counsel for K.H. "object[ed] to [K.H.] being moved at this time from his foster placement." Counsel for K.H. also stated as follows:
[K.H.'s] education, which was sporadic at best, is now in place. He's attending school regularly. His [individualized education plan] is being addressed. His emotional needs are being addressed. He is relaxed enough that he's beginning to disclose issues that occurred prior to him coming into care.
The court continued K.H.'s placement, noting that "[t]here are some legitimate concerns[.]" The court also denied Appellant's request for increased and unsupervised visitation, stating: "I'm not going to order it to be unsupervised, not after what I've been told. I will leave it up to the Department, the people who know best to determine whether or not it's appropriate to add another visit."
D. The Permanency Planning Hearing
In April 2022, the parties appeared for a hearing, and K.H.'s mother appeared without counsel. The matter was continued for two reasons: for K.H.'s mother to obtain counsel and for a determination about whether a guardian should be appointed for her. In June 2022, K.H.'s mother still had not been appointed a guardian, so the court granted a postponement over Appellant's objection and scheduled the permanency planning hearing for September.
In September 2022, the permanency planning hearing was held. The Department's first witness was Lynn Turiano-Rzucidlo, a special education teacher for Cecil County Public Schools. Ms. Turiano-Rzucidlo was "one of [K.H.'s] teachers last year and previous years that he's been in elementary school -- kindergarten for part of the year, second grade, third grade, and last year while he was in fourth grade." Ms. Turiano-Rzucidlo testified that K.H. was "pretty much at the kindergarten level in most areas except for math. For math, for computation, he's about the second grade level." Moreover, K.H.'s individualized education plan was "based on a diagnosis of autism."
Ms. Turiano-Rzucidlo observed that there were "many times" when K.H. was upset at school. Following advice from a school guidance counselor, Ms. Turiano-Rzucidlo "took notes" and kept a record of the times when K.H. was upset at school. Ms. Turiano-Rzucidlo testified about those notes as follows. In November 2021, K.H. reported that Appellant "hit him[,]" "he didn't want to go to" Appellant's residence, "he was scared[,]" and "he wanted to stay with" his foster mother, Ms. E. In January 2022, K.H. reiterated that "he wanted to stay with" Ms. E. and that "he was scared to live with" Appellant. K.H. "also asked [Ms. Turiano-Rzucidlo] why court people were sending him to [Appellant's] house." Through May 2022, on several occasions, K.H. was "upset[,]" "worried about where he . . . was going to live." Ms. Turiano-Rzucidlo testified as follows:
[K.H.] did not want to live with [Appellant]. He wanted to stay with his family. He was frightened about [Appellant].... He would talk about her drinking beer.... He would talk about hitting. And he just did not want to go back. He was -- he was frightened. He would say he was scared.
According to Ms. Turiano-Rzucidlo, "over the course of the 2021-2022 school year, [K.H.'s] speech became so much more clear, that he was able to communicate with so many people in the building -- and he did, on a daily basis."
K.H. began living with Ms. E. in April 2021. Ms. E. testified as follows: "When [K.H.] arrived, he had very little speech, just a few words, and, kind of, would just mumble and make sounds -- and not understandable." After living with Ms. E. for about 14 months, K.H.'s speech greatly improved: "[K.H.] is doing amazing with his speech. He can express himself. He can talk in full sentences." K.H. told Ms. E. "almost every single day, that he does not want to go back to live with [Appellant], ever." After living with Ms. E. for about six months, K.H. began to call her "Mom."
Ms. E. testified about K.H.'s anxiety surrounding his scheduled visits with Appellant:
Sometimes he -- he cries. He -- sometimes he has potty accidents in his pants, surrounding visits. He has a bald spot. Not anymore, it's actually healed right now. But he did have a bald spot from pulling his own hair out, more from nerves. He would rock and, kind of, keep his eyes closed on the way to visits.
Ms. E. stated that the toileting accidents occurred after Appellant's visitation was increased to twice per week in November 2021. Before a scheduled visit with Appellant in June 2021, K.H. became very upset and refused to exit Ms. E.'s vehicle. After that incident, K.H.'s inperson visits with Appellant stopped. Ms. E. testified about the changes she then observed:
I've noticed a 100 percent improvement, honestly. [K.H's] hair that was missing, is completely healed. [K.H.] has had zero -- zero, not even one -- potty accident since the visits have stopped. I have not heard [K.H.] cry about, or have an emotional upset, not even one time. He has not been rocking so violently. He rocks a lot. I mean, that's part of his autism, but he's really almost stopped that completely. Very little stemming going on. Again, another part of autism. Just an absolutely happy, normal, ten-year-old boy. Just having a really fun, happy time over the summer.
The visitation was changed to a phone call format, and Ms. E. testified that K.H.'s phone conversations with Appellant were "going pretty well." Ms. E. confirmed that she would "agree to be [K.H.'s] custodian or guardian" if the court changed K.H.'s permanency plan.
Morgan Meier, an outpatient therapist at Upper Bay Counseling and Support Services, testified that she had been K.H.'s therapist for "approximately nine to ten months" at the time of the permanency planning hearing. "On average," Ms. Meier would meet with K.H. "about once a week[.]" Ms. Meier testified as follows: "[K.H.] had disclosed that in his relationship with [Appellant], that he, while in her care, experienced that she would hit him, and drink beer, and it was something that he personally did not like and made him very nervous." Moreover, "[K.H.] disclosed that it makes him nervous and sad, when he would have to go to visitations with [Appellant.]"
Ms. Meier held three family therapy sessions in February and March 2022. By the third session, K.H.'s "demeanor was much more positive. There was a better interaction between him and [Appellant]" as they spoke about "their visits, school, and they also engaged in activities such as Connect Four." However, "[K.H] expressed that he does not want to return to [Appellant], that he would like to stay where he currently is residing which is with Ms. [E.], his foster mother." K.H. expressed that "[Appellant] is mean to him. He is worried that she will hit him and drink beer." K.H. "has specified that [Appellant] has hit him both with an open hand, closed hand, and has even pinched him."
Ms. Meier further testified that K.H.'s "primary diagnosis is generalized anxiety disorder" with an "unspecified disorder of psychological development[.]" According to Ms. Meier, if K.H. were to live with Appellant, that "sudden change may have a large negative impact on him[.]"
Melissa Wetters, a Foster Care Social Worker for the Department, was K.H.'s assigned social worker since September 2021. As to K.H.'s relationship with Appellant, Ms. Wetters testified as follows:
In my interactions with [K.H.], he seems to have a lot of distrusting emotions with regard to his time in [Appellant's] care. He does seem to refer to her as -- refer to as Mom-Mom because she has raised him. But he has displayed a lot of somatic symptoms, and anxiety and distress with regard to that relationship.
As to K.H.'s relationship with Ms. E. and her family, Ms. Wetters testified as follows:
When I observed [K.H.] in [Ms. E.'s] foster home, he is integrated into the home. He plays with the other children. He's affectionate. He displays a bond with all of the family members.
Ms. Wetters testified that the Department was recommending a permanency plan of "reunification with a secondary plan of guardianship and custody to a non-relative." Ms. Wetters stated that Appellant "has completed her tasks on her service agreement." Nevertheless, Ms. Wetters testified that "the Department's concern is [K.H.] and his mental health, and his history of trauma and distress." Indeed, Ms. Wetters testified about Appellant's minimization of K.H.'s distress:
[APPELLANT'S COUNSEL:] Okay. And you said on page six, that [Appellant] continues to demonstrate poor insight into her past alcohol use and the impact of her drinking and domestic violence in the home. What does that mean?
[MS. WETTERS:] I have had numerous discussions with [Appellant] about [K.H.'s] behaviors and what he has vocalized, what he has -- his distress in school. And [Appellant] does not seem to understand, she seems to minimize that or not believe the things that have gone on with regards to what [K.H.] has said.
Appellant testified and denied ever hitting K.H. Appellant further testified that K.H. witnessed her ex-husband abuse Appellant. At the time of the permanency planning hearing, Appellant was no longer with her ex-husband, she obtained a protective order against him, and she filed for divorce. In addition, she had no contact with her ex-husband, and she did not intend to have any contact with him. She completed a parenting class "that the DSS worker told [her] to take[,]" and she removed alcohol from her residence.
According to Appellant, "during those initial visitations, . . . [K.H.] would ask me, Mom-Mom, I would like to have more visits." Appellant was willing to undergo family therapy, and she was unopposed to supervised visitation. On cross-examination, Appellant denied ever driving with K.H. in the car while she was intoxicated. Appellant, however, admitted to "total[ing] two cars while drinking and driving[.]"
At the end of the hearing, counsel for the Department stated as follows: "we're asking that the Court find that it is in the permanency plan -- that it's in [K.H.'s] best interest is a concurrent plan of reunification, and custody and guardianship to a nonrelative." K.H.'s counsel was "in agreement with the Department, . . . for the concurrent plan of custody and guardianship to a non-relative, and a concurrent plan of reunification, with an earlier review."
Appellant's counsel asked the court to return K.H. to Appellant's care, or in the alternative, for "progressive visitation [to be] put in place, starting with in-person visits, then moving to visits in the home, then moving to day visits, then overnights, and then home."
In its ruling, the court emphasized the testimony of Ms. Turiano-Rzucidlo:
Now, after [K.H.] was removed, I'm going to point out to you something very, very important -- it was important to me -- and that is, the testimony of his teacher. And what did she say? After [K.H.] was removed, what progress did he make in school? Okay. It was, in a sense, remarkable progress. He learned to communicate.
Moreover, the court noted that K.H. had "developed, obviously, a close relationship" with his foster family. "[K.H.] appears to be, from everything we've heard, very happy there." The court acknowledged that Appellant "is to be commended for having completed all those things in a service plan." The court made K.H.'s permanency plan as follows: a concurrent plan of (1) reunification with Appellant and (2) custody and guardianship by a non-relative.
We shall supply additional facts in our analysis as needed.
STANDARD OF REVIEW
We review changes to permanency plans under three levels of review:
When the appellate court scrutinizes factual findings, the clearly erroneous standard . . . applies. [Secondly,] if it appears that the [juvenile court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the [juvenile court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [juvenile court's] decision should be disturbed only if there has been a clear abuse of discretion.In re D.M., 250 Md.App. 541, 562 (2021) (quoting In re Shirley B., 419 Md. 1, 18 (2011)) (alterations in original).
DISCUSSION
Appellant argues that the court erred when it modified the permanency plan to add a concurrent plan of custody and guardianship. According to Appellant, the Department failed to make reasonable efforts at reunification. Appellant also claims that the court abused its discretion in determining that a modification to the permanency plan was in K.H.'s best interests. The Department counters by arguing that the statutory factors supported adding a concurrent plan of custody and guardianship to a non-relative. The Department further claims that the court properly found that the Department had made reasonable efforts toward reunification with Appellant and that the court properly considered K.H.'s best interests.
The CINA statute provides "detailed requirements for a CINA petition and the types of hearings required at each stage of [CINA] proceedings." In re M.H., 252 Md.App. 29, 42 (2021). See also Md. Code, Courts &Jud. Proc. ("CJP") §§ 3-801 to 830. One such requirement provides that "[w]hen a child is declared a CINA, the Department must develop a 'permanency plan' that is 'consistent with the best interests of the child.'" In re D.M., 250 Md.App. at 560 (quoting CJP § 3-823(e)(1)(i)). It further provides that when "developing a permanency plan for a child in an out-of-home placement, [the Department] shall give primary consideration to the best interests of the child[.]" Md. Code, Family Law ("FL") § 5-525(f)(1). The following factors must be considered:
(i) the child's ability to be safe and healthy in the home of the child's parent;
(ii) the child's attachment and emotional ties to the child's natural parents and siblings;
(iii) the child's emotional attachment to the child's current caregiver and the caregiver's family;
(iv) the length of time the child has resided with the current caregiver;
(v) the potential emotional, developmental, and educational harm to the child if moved from the child's current placement; and
(vi) the potential harm to the child by remaining in State custody for an excessive period of time.Id.
"No later than 11 months" after a child is found to be a CINA, a hearing for the court to determine a child's permanency plan shall take place. CJP § 3-823(b)(1)(i). At the permanency planning hearing, the court determines the child's permanency plan under the following "descending order" of priorities:
1. Reunification with the parent or guardian;
2. Placement with a relative for:
A. Adoption; or
B. Custody and guardianship under § 3-819.2 of this subtitle;
3. Adoption by a nonrelative;
4. Custody and guardianship by a nonrelative under § 3-819.2 of this subtitle; or
5. For a child at least 16 years old, another planned permanent living arrangement[.]CJP § 3-823(e)(1)(i). The statute provides that a child's permanency plan shall be considered in descending order of priority "to the extent consistent with the best interests of the child[.]" Id. And when "determining the child's permanency plan, the court shall consider the factors specified in [FL § 5-525(f)(1)]." CJP § 3-823(e)(2).
The court properly observed the following about K.H.'s "ability to be safe and healthy" (FL § 5-525(f)(1)(i)) in Appellant's home: "You simply can't take [K.H.], with the background and the trauma he's undergone in his young life, and throw him into a situation that could potentially do a lot of harm to him and exacerbate the situation. I'm not going to do that."
Under FL § 5-525(f)(1)(ii), the court considered "the child's attachment and emotional ties to the child's natural parents and siblings" when the court noted that reunification with a parent was not an option: "[T]he preferred option, in these cases, is reunification with the parents. Well, we don't have that here, but we have a parental substitute." Consistent with the statutory framework in 3-823(b)(1), the court recognized that reunification with Appellant should be the first priority to the extent consistent with K.H.'s best interest: "[Reunification with his guardian should be the ideal. It should be what is strived for." The court, however, recognized that reunification could not be K.H. 's sole permanency plan: "I'm not going to force a child into a situation where there's a potential -- potential for additional harm."
At the permanency planning hearing, there was ample testimony as to K.H.'s fear of returning to Appellant's residence. Ms. Turiano-Rzucidlo testified that K.H. reported that Appellant "hit him[,]" "[K.H.] didn't want to go to" Appellant's residence, "he was scared[,]" and "he wanted to stay with" his foster mother, Ms. E. Ms. Turiano-Rzucidlo noted several times when K.H. told her that he did not want to go back to Appellant's residence. Ms. E. testified that K.H. stated "almost every single day, that he does not want to go back to live with [Appellant], ever." Ms. Meier testified that K.H. "expressed that he would like to stay with [Ms. E.] and her family, his foster family, forever." Ms. Wetters testified that K.H. "reported to [Appellant] that he did not want to live with [Appellant], because she used to beat him."
The court properly applied the third factor outlined in FL § 5-525(f)(1)(iii), which involves "the child's emotional attachment to the child's current caregiver and the caregiver's family[.]" The court found that K.H. "has developed, obviously, a close relationship to [his foster family]. He appears to be, from everything we've heard, very happy there. His needs are being taken care of. He's in a family unit, part of a family. Okay. It apparently pleases him very much."
The court appropriately analyzed the fourth and sixth factors of FL § 5-525(f)(1), which involve "the length of time the child has resided with the current caregiver" (FL § 5-525(f)(1)(iv)) and "the potential harm to the child by remaining in State custody for an excessive period of time" (FL § 5-525(f)(1)(vi)). The court noted "[t]here is some sense of urgency" because "[o]n April the 7th of [2023], this matter will have been in the court for two years." Under CJP § 3-823(h)(5): "Every reasonable effort shall be made to effectuate a permanent placement for the child within 24 months after the date of initial placement." The court "hope[d]" that Appellant and K.H. could resume in-person visits "through additional family therapy" or another method.
The remaining factor involves "the potential emotional, developmental, and educational harm to the child if moved from the child's current placement[.]" FL § 5-525(f)(1)(v). As to that potential developmental and educational harm, the court placed emphasis on Ms. Turiano-Rzucidlo's testimony about how K.H. made "remarkable progress" and "learned to communicate" during his current placement: "So he made significant progress -- remarkable progress, in a way, after he went to stay with his foster family." As to potential emotional harm, the court addressed how immediately returning K.H. to Appellant's care "could potentially do a lot of harm to him and exacerbate the situation" given K.H.'s "background and the trauma he's undergone in his young life[.]"
Appellant argues that the court erred in finding that the Department had made reasonable efforts toward reunifying K.H. and Appellant. In Appellant's reply brief, Appellant's counsel argues that "K.H.'s feelings about" Appellant "do not relieve the Department of its duty to provide reasonable efforts at reunification." However, COMAR 07.02.11.05(C)(7)(c) provides as follows: "A local department with responsibility for a child's case shall: . . . Implement a visitation plan which: . . . Does not force a child to participate in visitation but refers the child to a therapist for assistance in resolving the visitation issues[.]" (Emphasis added.) We agree with the Department's assertion that the record establishes that "visitation caused K.H. extreme distress." For example, Ms. E. testified as follows about K.H.'s behavior before scheduled in-person visitation with Appellant:
Sometimes he will, like, keep talking, and punching his hand, and pointing his finger, "I'm not going in. I'm not doing it." He cries and then snots, and he rubs his snots and his cry together all over his face, rocking back and forth, saying he was going to get sick.
The Department implemented and assisted with in-person visitation for K.H. until he refused to attend. Then, the Department implemented a sensible alternative: phone calls between Appellant and K.H.
Appellant also contends that the Department did not make reasonable efforts toward reunification because the Department failed to provide family therapy to Appellant and K.H. We disagree. Ms. Meier led three family therapy sessions with Appellant and K.H. in February and March 2022. After the third session, K.H. expressed "that he does not want [Appellant] to participate in family therapy with him, that he wants sessions by himself in an individual setting[.]" Ms. Wetters testified that she was no longer recommending that K.H. participate in family therapy "[b]ased upon [K.H.] vocalizing to numerous people on his team, numerous people how he feels regarding contact visitations with [Appellant], I feel it would be detrimental for him." While the Department must make reasonable efforts to facilitate reunification, its paramount duty always is "to protect the health and safety of the children[.]" In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 501 (2007). The Department's decision to pause family therapy was consistent with this duty and did not amount to a failure to offer reasonable reunification services to Appellant. The court did not err in determining that the Department made reasonable efforts toward reunification.
Lastly, Appellant contends that "[t]here was no dispute that [Appellant] has engaged with the Department and followed her service agreements to the tee." Compliance with the service agreements, however, does not necessarily signify that immediate reunification is in the child's best interest. Indeed, the record established that K.H. had endured traumatic experiences while living with Appellant, and he was experiencing extreme distress related to in-person visitation with Appellant. We agree with the court's recognition that Appellant "is to be commended for having completed all those things in a service plan." Nevertheless, given the evidence adduced at the permanency planning hearing, we cannot say that the court erred in adding a concurrent plan of custody and guardianship by a non-relative to K.H.'s existing plan of reunification with Appellant. We therefore affirm.
THE JUDGMENT OF THE CIRCUIT COURT FOR CECIL COUNTY IS AFFIRMED. APPELLANT TO PAY THE COSTS.
[*]At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022.
[*]This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.