Petition for Writ of Certiorari — I. M., Petitioner v. Montgomery County Department of Health and Human Services, et al.

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Order in the Court of Appeals of

Maryland

(October 22, 2021) . . . . . . . . . . . . . App. 1

Appendix B Opinion in the Court of Special

Appeals of Maryland

(June 28, 2021) . . . . . . . . . . . . . . . App. 2

Appendix C Hearing Transcript Excerpt in the

Circuit Court for Montgomery County,

Maryland Juvenile Division

(February 28, 2018) . . . . . . . . . . App. 40

App. 1

APPENDIX A

IN THE COURT OF APPEALS OF MARYLAND

Petition Docket No. 187

September Term, 2021

(Nos. 1023 & 1137, Sept. Term, 2020

Court of Special Appeals)

(Nos. 6-I-16-000056 & 6-Z-17-000033,

Circuit Court for Montgomery County)

[Filed: October 22, 2021]

__________________________________________

IN RE: J.T.

)

__________________________________________)

ORDER

Upon consideration of the petitions for a writ of

certiorari to the Court of Special Appeals and the

answers filed thereto, in the above-captioned case, it is

this 22nd day of October, 2021

ORDERED, by the Court of Appeals of Maryland,

that the petitions be, and they are hereby, DENIED as

there has been no showing that review by certiorari is

desirable and in the public interest.

/s/ Joseph M. Getty

Chief Judge

*Judge Gould did not participate in the consideration

of this matter.

App. 2

APPENDIX B

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

Nos. 1023 & 1137

September Term, 2020

[Filed: June 28, 2021]

Circuit Court for Montgomery County

Case Nos. 6-Z-17-00033 & 6-I-16-0056

__________________________________________

IN RE: J.T.

)

__________________________________________)

Kehoe,

Leahy,

Adkins, Sally D.

(Senior Judge, Specially Assigned),

JJ.

Opinion by Adkins, Sally D., J.

*This is an unreported opinion, and it may not be cited

in any paper, brief, motion, or other document filed in

this Court or any other Maryland Court as either

precedent within the rule of stare decisis or as

persuasive authority. Md. Rule 1-104.

App. 3

We have seen this heart-wrenching case on various

procedural postures before, and we are now called upon

to address the termination of parental rights (“TPR”).

J.N.T. (“Mother”) gave birth to a daughter, J.T., in

2016. J.T.’s father, I.M. (“Father”) was, and still is a

resident of Cameroon. J.T. was removed from Mother’s

care by the Montgomery County Department of Health

and Human Services (“Department”) a few days after

her birth, and the Montgomery County Circuit Court

found J.T. to be a Child in Need of Assistance (“CINA”)

shortly after. J.T. has been in out-of-home placements

ever since.

The juvenile court granted guardianship of J.T. to

the Department, terminating Mother and Father’s

parental rights. Mother and Father both appealed.

Shortly after, the court filed a separate order closing

J.T.’s CINA case. Father appealed the closure of the

CINA case on his own.

Mother presents us with the following questions:

1 Did the court commit error when it found by

clear and convincing evidence that Mother

was unfit to continue a parental relationship

with J.T.?

2. Given Mother’s relationship with J.T. and

the family history they share, did the court

err in deciding that termination of their

parental relationship was in J.T.’s best

interest?

3. Did the court commit error when it refused to

hold a hearing before ordering a reduction in

Mother’s visitation with J.T.?

App. 4

Father presents us with two questions in his TPR

appeal:

1. Whether the circuit court’s exercise of

personal jurisdiction over Father’s parental

rights is limited by the unfairness of forcing

Father to prove his parental fitness in

Maryland, where Father is unable to enter

the United States, where Father complied

with every request by the Department for

information, where the Department refused

to evaluate Father’s fitness unless he came to

Maryland, where Father sponsored a home

study in Cameroon to demonstrate his fitness

to parent, where Father is ready, willing, and

able to parent the child, and where Father’s

absence is deemed an exceptional

circumstance warranting the termination of

his parental rights?

2. Whether the circuit court erred by finding

exceptional circumstances sufficient to

overcome the presumption that it is in the

best interests of the child to preserve

Father’s inherent rights as a natural parent?

Father presents us with one question from his

appeal of the CINA closure:

1. Whether the juvenile court erroneously found

[J.T.] a CINA where Father was not given

notice of the CINA adjudication or

disposition and where the court implicitly

found that Father was unwilling or unable to

App. 5

care for JT based on his absence from the

proceedings?

For the reasons below, we affirm.

FACTS AND PROCEDURAL HISTORY

We primarily focus our history on events occurring

after our last opinion. For a more in-depth history, see

our prior opinions: In re Adoption/Guardianship of

J.T., 242 Md. App. 43 (2019) (“J.T. 1”) and In re J.T.

and G.N., No. 2372, Sept. Term 2019 (Sept. 11, 2020)

(“J.T. 2”).

While Mother was on a visit to see family in

Cameroon, she rekindled her relationship with Father,

conceiving J.T. J.T. 2 at 4–5. The two agreed that

Mother would return to the U.S. to give birth. Id. at 5.

J.T. was born on April 1, 2016. Mother’s mental health

deteriorated soon after, and J.T. was removed from her

care before being adjudged a CINA a few weeks later.

Mother was diagnosed with post-traumatic stress

disorder and recurrent major depressive disorder with

psychotic features that cause her to experience

insomnia, psychomotor agitation, fatigue, mood

instability, and auditory hallucinations during

depressive episodes. J.T. 2 at 5.

Mother’s mental health challenges were at their

worst when she had to discontinue medication after

discovering her second pregnancy in December 2016.

J.T. 2 at 5. She was hospitalized multiple times

between December 2016 and March 2017, and received

a diagnosis of Bipolar I with psychotic features. J.T. 2

at 6. Mother began to recover, and gave birth to her

second daughter, G.N., in September 2017. J.T. 2 at 6.

App. 6

She soon suffered a mental health relapse, which

resulted in G.N. being removed and declared a CINA.

J.T. 2 at 6–7. G.N. was placed in the P. household. J.T.

2 at 7.

The juvenile court terminated Mother and Father’s

parental rights in November 2018 right after J.T. was

removed from her placement at the request of her

foster parents, whom the Department—and

court—assumed would adopt her. J.T. 2 at 7. We

reversed that termination in J.T. 1, holding that the

court “erred in not holding another hearing—not fully

evaluating Mother’s mental health progress in light of

her fundamental right to parent or J.T.’s best interests

in light of the trauma of losing her home with her

foster parents[.]” J.T. 1 at 72.

J.T. joined her sister G.N. in the P. household in the

summer of 2019. J.T. 2 at 8. After a Permanency Plan

Review (“PPR”) hearing, the juvenile court changed

J.T.’s permanency plan to adoption by a non-relative in

January 2020 because it could not “reasonably predict

a time when [J.T.] might return to [Mother’s] care.”

J.T. 2 at 19. We affirmed the permanency plan change

in September 2020, noting that the ultimate goal was

“the best interests of the children,” expressing concern

that Mother “continued to minimize her mental health

issues to a degree that is quite troubling and could

prove dangerous if she received custody and no longer

had the Department’s oversight.” J.T. 2 at 35, 44.

The TPR Hearing was initially set for May 2020,

but postponed due to the Covid-19 pandemic. Mother

and Father opposed the TPR, while Counsel for Child

(“Child”) supported the termination. Mother wanted

App. 7

J.T. returned to her, and Father requested that J.T.

come live with him in Cameroon.

The Hearing

The juvenile court conducted its hearing in October

2020. J.T.’s therapist, Kay Connors, testified that J.T.

often has “some regression around separation concerns

so she is clingier with her foster mom before and after

visits,” and “some behavioral regression including

wetting herself in the day even though she’s been fully

potty trained and having crying spells when she is

asked to do either new tasks or . . . learning tasks[.]”

Offering an expert opinion, Connors stated that J.T.

and her foster mother “have a very strong

relationship.” While J.T. experiences attachment with

her current foster family, Connors cautioned that the

healthy, secure attachment could not just be

transferred: “if she were in a new family, you would

have to go through the whole process again.” Even

then, Connors said she “can’t guarantee that” J.T.

would develop another secure attachment.

Connors also addressed J.T. and Mother’s

relationship: “She can identify her mom and say that

they’ve done something pleasurable [during visits] but

that’s really all she said.” She opined that J.T. “has a

way to speak about [Mother] and she has current

memories and knowledge.” Connors noted that J.T.

“doesn’t really speak about visiting her father.”

Shiho Murakami, the Department’s caseworker,

testified that, in her expert opinion, J.T. “cannot be

safe in [Mother’s] care.” She noted that “two

professionals who worked with [Mother] as parent

App. 8

coach cannot recommend to remove the supervision . . .

[which] lets [her] know that [she] cannot have her in

[Mother’s] care full-time.” Further, she stated: “I as a

clinician myself do have an opinion of my own and I

cannot recommend to put [J.T.] in [Mother’s] care,

especially after seeing [Mother’s] lack of understanding

in regards to physical safety[,] not to mention the

emotional safety.” Murakami worried about J.T.’s

relationship with Father, as well: “for one, [J.T.] has

never met him and as you heard earlier today

attachment develops in day to day care in person. So

she has either no attachment or insecure

attachment[.]” Murakami opined that J.T. was thriving

in the P. household: “She is definitely safe where she is

now.”

Kerrie LaRosa, one of Mother’s parenting educators,

testified that she had concerns with Mother’s ability to

engage with J.T. in age-appropriate play, and that she

“has difficulty reading cues” for J.T. LaRosa thought

Mother was “definitely eager to make progress,” but

she still noted that “there are other areas where she is

inconsistent or where she won’t follow

recommendations.”

LaRosa noted that she “still need[s] to stay pretty

engaged [during visits] to help [Mother] understand

those emotional needs and continue working on the

safety and to follow through on the routine and to be

able to meet these goals.” LaRosa believed that “if the

progress would continue as it currently is, then [she]

would imagine it would take months to achieve

[Mother’s parenting] goals.” LaRosa was asked about

her opinion on Mother’s prognosis, to which she

App. 9

responded that “[i]t is not a good prognosis. She needs

to work towards these goals.”

Sophia Coudenhove, another one of Mother’s

parenting educators, testified on Mother’s behalf. She

thought that Mother “still [had] work to be done but

she’s certainly showed improvement.” Although Mother

had made progress, Coudenhove was still unsure of

Mother’s ability to keep J.T. physically safe: “I’m not

convinced that if nobody were there she would run

after [J.T.] fast enough to catch her or . . . exert the

authority to summon her back if for example she moved

beyond the agreed boundaries physically.” She could

not recommend unsupervised visits, either short or

indefinite. As of her last visit with Mother in August

2020, Coudenhove could not provide a roadmap for

when she would have felt comfortable recommending

unsupervised visits.

Dr. Ronald Means, a forensic psychiatrist, testified

as an expert for Mother. He noted that Mother has

“demonstrated stability” since her last psychiatric

crisis in 2018. Means did admit that Mother’s

symptoms could “[v]ery potentially” re-emerge. Means

would not give an express prognosis of Mother’s mental

illness, instead stating: “her symptoms can be

managed . . . and I think that her symptoms have been

managed effectively for now nearly three years.”

Means opined about insight—a concept crucial to

Mother’s progress:

I think that remembering that she can be that ill

and knowing that she can be that ill versus

remembering details or just remembering the

App. 10

exact, those exact episodes[;] I think the most

important thing is her insight and

understanding that she can become that ill and

she has become that ill in the past.

He affirmed that it would be a concern if a patient did

not have insight into their mental illness: “It’s

something that I think should be a focus of treatment

so that she can gain some insight and be more aware so

that she avoids pitfalls.”

Mother testified at the hearing in English, instead

of using a translator as in the PPR hearing in

December 2019 and January 2020. She claimed that, in

the PPR hearing, she misunderstood some double

negatives and the translator “was saying something

different that [she] didn’t even mention.” In the TPR

hearing, Mother testified that “the mental health issue

has been an obstacle to prevent [her] to take care of

[her] children.” She did not, however, think her second

daughter required intervention: “before they took

[G.N.], I was fine with her.” Her belief is inconsistent

with proven history: shortly after G.N.’s birth, Mother

was found with her in a catatonic state. This

necessitated Mother’s hospitalization and G.N.’s

placement with the P. family.

Mother acknowledged her daughters’ bond with the

P. family by saying that she “would like to see them

continue [to] have a relationship.” The Department

asked her whether she has “thought about the effect

that removing [her children] from their foster parents

would have[.]” She replied that she had not. Mother

then elaborated: “It’s not that I’m not thinking about

it[;]” she planned to rely on J.T.’s therapist, “the expert,

App. 11

to go through it with the children, who can give [her]

some kind of advice how to proceed with them.”

Father testified that he was the “best person[,]

better than anyone else to take care of [J.T.].” Although

he had yet to begin English classes to learn the

language his daughter speaks, he was learning some

words on his own. Father reaffirmed that he was still

comfortable with Mother’s care: “It’s all good, but it

would be preferable that [J.T.] is sent to be with me.”

Ultimately, the court terminated Mother’s parental

rights by finding her unfit:

The Court acknowledges Mother’s

co-operation in working with the Department

and her progress in managing her own life, but

in weighing the evidence in its entirety, the

Court considers her lack of insight into core

issues, and inability to make real progress in her

parenting capacity, an insurmountable obstacle

when measured against [J.T.’s] health and

safety. . . . Parental unfitness does not require

unremitting abuse or neglect. . . . Mother’s

psychiatric history and its aftermath have left

her largely unavailable to parent [J.T.] in a safe

and emotionally grounded manner.

The particular circumstances of this mother

and child yield a reality that argues against

continuation of their relationship. [J.T.] needs

permanence. And she needs parenting that

Mother has not been able to provide, and that

she will not be able to provide in the foreseeable

future without endangering her child’s welfare.

The Court finds by clear and convincing evidence

App. 12

that the evidence supports a finding of parental

unfitness that successfully rebuts the legal

presumption that continuation of the parental

relationship is in the child’s best interest.

The court then terminated Father’s parental rights

due to exceptional circumstances:

After considering the entirety of the evidence,

the Court is unable to determine [Father’s]

fitness as a parent. There is simply not enough

information. The circumstances, however, of his

parental relationship with [J.T.] are exceptional.

He has been absent in [J.T.’s] life except for

video visitation. He is unable to come to the U.S.

and the Court is persuaded that sending her to

live in Cameroon is not viable. She would lose

her support system, her family, her culture and

her country. Perhaps even more importantly,

her emotional health would be severely taxed to

the point of endangering her welfare. The Court

does not believe it is in [J.T.’s] best interest to

remove her, based not on an expectation but

merely a hope, that such a plan will succeed.

***

When Father’s exceptional circumstances are

measured in terms of detriment to [J.T.’s] best

interest, it is clear to the Court that her best

interests will be served by terminating his

parental rights. There is no foreseeable future

for [J.T.] with [Father] as a parent. She both

requires and deserves permanence and stability

in a safe and emotionally sustaining

environment.

App. 13

This appeal followed.

STANDARD OF REVIEW

We use three interrelated standards of review in

TPR and custody cases:

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 Shirley B., 419 Md. 1, 18 (2011) (cleaned up).

Factual findings cannot be clearly erroneous “[i]f any

competent material evidence exists in support of the

trial court’s factual findings[.]” Schade v. Maryland

State Bd. of Elections, 401 Md. 1, 33 (2007). “Legal

conclusions of unfitness and exceptional circumstances

are reviewed without deference. In reviewing whether

the juvenile court abused its discretion, we are aware

that juvenile courts must apply a statutory termination

of parental rights directive to factual scenarios that are

far from clear.” In re Adoption/Guardianship of C.E.,

464 Md. 26, 47–48 (2019).

App. 14

We are mindful that:

Questions within the discretion of the trial court

are much better decided by the trial judges than

by appellate courts, and the decisions of such

judges should only be disturbed where it is

apparent that some serious error or abuse of

discretion or autocratic action has occurred. In

sum, to be reversed the decision under

consideration has to be well removed from any

center mark imagined by the reviewing court

and beyond the fringe of what the court deems

minimally acceptable.

In re Yve S., 373 Md. 551, 583–84 (2003) (cleaned up).

DISCUSSION

The Legal Landscape

To non-consensually terminate parental rights, the

local department petitions the court for guardianship.

The pertinent statute provides:

If, after consideration of factors as required in

this section, a juvenile court finds by clear and

convincing evidence that a parent is unfit to

remain in a parental relationship with the child

or that exceptional circumstances exist that

would make a continuation of the parental

relationship detrimental to the best interests of

the child such that terminating the rights of the

parent is in a child’s best interests, the juvenile

court may grant guardianship of the child

without consent[.]

App. 15

Maryland Code (1973, 2019 Repl. Vol.), Family Law

Article (“FL”) § 5-323(b). The court must address the

following considerations:

(d) Except as provided in subsection (c) of this

section, in ruling on a petition for guardianship

of a child, a juvenile court shall give primary

consideration to the health and safety of the

child and consideration to all other factors

needed to determine whether terminating a

parent’s rights is in the child’s best interests,

including:

(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;

App. 16

(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;

***

(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

App. 17

(iv) the likely impact of terminating

parental rights on the child’s well-being.

FL § 5-323(d).

Parental unfitness and exceptional circumstances

are newer additions to the statutory scheme: “For

years, the statute spoke only of the child’s best

interest.” In re Adoption/Guardianship of Jayden G.,

433 Md. 50, 95 (2013). “[B]eginning the analysis with

the child’s best interests was improper because it

created the impression that the natural parents and a

third party stood on the same footing.” Id. Courts must

account for the presumption that “it is in the best

interest of children to remain in the care and custody

of their parents” either by showing that a parent is

unfit, or that exceptional circumstances exist such that

terminating the relationship is in the child’s best

interests. Id. A finding of parental unfitness, in and of

itself, does not justify termination of parental rights.

Id. at 96. The juvenile court must still decide whether

termination is in the child’s best interests. Id.

Mother’s Parental Fitness

Mother contends that the trial court erred when it

found by clear and convincing evidence that she was

unfit to continue a parental relationship with J.T. The

Department and Counsel for Child (“Child”) both

respond that the trial court appropriately found her to

be unfit based on the evidence.

Factual Findings

Mother begins her argument by saying the trial

court made clearly erroneous factual findings. Her first

App. 18

contention is that the trial court found that she had not

made appreciable progress in the critical piece of

parenting, despite parties testifying that Mother did

make progress in her parenting goals. The court found

that Mother was “not likely to benefit from additional

[parenting] services to effect a lasting parental

adjustment, so that [J.T.] can be returned to her within

an ascertainable time.”

Mother has had sixteen months of parenting

education. Not a single witness could comfortably

recommend unsupervised visits. Murakami did not

think J.T. could ever be safe in Mother’s care.

Coudenhove could not project a time when she would

have felt comfortable recommending unsupervised

visits. LaRosa did not think Mother’s prognosis was

good after sixteen months of parenting education. She

speculated that Mother needed months to achieve her

goals but was unsure if she ever fully could.

Mother is correct in asserting that she has made

progress, but we see no error in the juvenile court’s

conclusion that she is unlikely to benefit from

additional support to reach her goals in a reasonable

time. See In re Adoption/Guardianship of Rashawn H.,

402 Md. 477, 499–500 (2007) (“What the statute

appropriately looks to is whether the parent is, or

within a reasonable time will be, able to care for the

child in a way that does not endanger the child’s

welfare.”) (emphasis added). While her consistent

progress is commendable, we conclude that the

continued doubts of support staff regarding whether

Mother would ever meet her goals supports the court’s

finding.

App. 19

Next, Mother takes issue with the juvenile court’s

finding that J.T. and Mother’s relationship “is not

emotionally grounded but fraught with conflicted

feelings of insecurity and confusion.” She believes this

finding had “no evidentiary support in the record”

because “[n]o expert testified regarding J.T.’s emotional

understanding of the relationship with Mother.”

The testimony regarding J.T. and Mother’s

relationship was varied: Coudenhove stated that the

two have “an imperfect, but loving connection[.]” She

further discussed that she “saw plenty of pleasure and

plenty of affection at times. [She] saw confusion from

[J.T.] as well and there were times when she did not

want to be there but there were certainly times when

she did.” Mrs. P. noticed that, although J.T.’s tantrums

and regressive behaviors had mostly subsided,

“sometimes when she comes home from the visit [with

Mother] or something like that, she may wet herself.”

We consider it important that, before each visit, J.T.

would verify with Mrs. P. that she would not stay with

Mother: “I’m going to play with Mama [J.]. Then I’m

coming back home, right?”

These excerpts from testimony are a sufficient basis

for the juvenile court’s finding that Mother and J.T.

have a complicated relationship, bringing up feelings of

insecurity and confusion for J.T. See Schade, 401 Md.

at 33 (“If any competent material evidence exists in

support of the trial court’s factual findings, those

findings cannot be held to be clearly erroneous.”).

Mother also challenges the juvenile court’s

evaluation of Means’ testimony. She argues that the

court’s misquote—“Most important is the patient’s

App. 20

insight in order to understand and avoid

pitfalls”—misrepresents his testimony and gives his

statement unwarranted significance.

Mother is correct that the court misquoted

Means—it combined two of his statements: “I think the

most important thing is [Mother’s] insight and

understanding that she can become that ill and she has

become that ill in the past” and that her insight is

“something that I think should be a focus of treatment

so that she can gain some insight and be more aware so

that she avoids pitfalls.” Combining these quotations,

however, did not change their meaning: Mother’s

insight is one of the most crucial parts of her long-term

stability and prognosis. In short, the error was

harmless because the significance of Means’ statements

does not change based on consolidation.

Mother’s final factual challenge is the juvenile

court’s finding—based on Dr. Samantha Bender’s

expert testimony—that Mother “has evidenced a

marked deterioration in her functioning from 2016 to

the present[.]”1 Mother thinks that Bender’s

evaluation, performed in September 2019, does not

reflect her “increased ability to function independently

in the world since her last hospitalization in 2018.”

Bender first evaluated Mother in the summer of

2016, a few months after J.T.’s birth. She noted that, in

2016, Mother “was cooperative and warm throughout

1

Father presented an expert witness to review Bender’s reports,

testifying that Bender’s testing raised questions of bias. We give

due regard to the trial court’s opportunity to evaluate the

credibility of witnesses. See Md. Rule 8-131(c).

App. 21

all sessions, and her thought processes were clear,

coherent, linear, and indicative of good insight into

herself, her past and (then) current relationships, and

her past and (then) current circumstances.”

In 2019, Bender noted that Mother “presented with

none of the warmth or openness she had demonstrated

in the earlier evaluation.” Further, Mother’s “affect was

flat[,] and her speech was slow and at times slurred,

although her thought process was coherent.” Bender

concluded that Mother had “Major Depressive

Disorder, Recurrent, with Psychotic Features, in

Partial Remission,” an “Unspecified Neurocognitive

Disorder, with impairment in visual memory, aspects

of social cognition, visuo-constructional skills, recent

memory, implicit learning, working memory,

feedback/error utilization, impulse control, cognitive

flexibility, and sustained attention,” and Borderline

Intellectual Functioning.

Mother received a neuropsychological evaluation in

December 2019 from Dr. Melissa Carswell. Carswell

noted that Mother “denie[d] any current

problems”—saying she experiences no difficulty with

memory, attention, or concentration. She echoed

Bender’s evaluation that Mother’s “affect was flat.”

Carswell summarized her evaluation: “Overall

impression is frontal-executive dysfunction and mildly

impaired verbal memory likely due to impaired

auditory attention and also consistent with her

psychiatric diagnosis.” Mother additionally received a

neurology workup from Dr. Nadia Yusuf a few days

later. Yusuf’s conclusions were that Mother had “some

App. 22

difficulty understanding [Yusuf’s] simple commands on

examination[.]”

Bender reviewed both Carswell and Yusuf’s

evaluations, concluding that they “confirm [Bender’s]

assessment that the differences in [Mother’s]

presentation in 2019 relative to 2016 reflect the impact

of her mental illness.” She believed “the deterioration

in [Mother’s] presentation and functioning can be

understood to reflect the trajectory of that mental

illness and the impact of her medications on her

functioning.”

We understand Mother’s frustration that the court

sees a deterioration in her functioning despite her

consistent progress to live independently and take care

of herself. Nevertheless, Mother’s evaluations by

Bender, Carswell, and Yusuf support the court’s

conclusion. The juvenile court “accept[ed] Dr. Bender’s

opinion that [Mother] has evidenced a marked

deterioration in her functioning from 2016 to the

present.” We see no clear error in this, or any other

factual finding Mother complains of.

Mother’s Progress

Mother contends that the juvenile court “improperly

focused on older evidence” of her lifetime mental health

diagnosis instead of her more recent progress. “It has

long been established that a parent’s past conduct is

relevant to a consideration of the parent’s future

conduct.” In re Adriana T., 208 Md. App. 545, 570

(2012). Mother concedes that this proposition is true.

Nevertheless, she argues that “when the court has

more recent evidence, not only of a parent’s progress,

App. 23

but a demonstrated track record of stability, the court

cannot ignore progress in favor of past concerns.”

Mother cites FL § 5-323(d)(2)(iv) to support her

assertion that “the heart of the court’s consideration

should be on current parental fitness.” The subsection

she cites looks at “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[.]” Id. The juvenile court stated that

Mother “has made appreciable progress in managing

the basics of housing, employment, transportation, and

finances. On the critical piece of parenting, this has not

been the case.”

The juvenile court did look at Mother’s past mental

health challenges, but it also focused on her ability to

safely parent J.T. in the past, the present, and the near

future. The court accepted testimony that Mother’s

prognosis was “not good if she is still working on her

parenting goals after 16 months.” It stated:

Given the length of time that services have been

provided, especially one-on-one parenting

education during regular and frequent

visitation, and the fact that [Mother] has not yet

progressed to even unsupervised visitation, the

Court finds that [Mother] is not likely to benefit

from additional services to effect a lasting

parental adjustment, so that [J.T.] can be

returned to her within an ascertainable time.

We “give due regard to the opportunity of the trial

court to judge the credibility of the witnesses.” Md.

Rule 8-131(c). The heart of the consideration remains

App. 24

the same: “the best interest of the child remains the

ultimate governing standard.” Rashawn H., 402 Md. at

496. Given the overarching standard—best interests of

the child—we conclude that the juvenile court did not

give undue weight to Mother’s past.

Mental Illness Nexus

In her last point under this question, Mother

asserts that the juvenile court was required to find “a

cognizable nexus between Mother’s mental health

issues and her unfitness to continue in a parental

relationship with J.T. That is, Mother’s mental health

diagnosis must, in some respect, cause her inability to

parent J.T., to J.T.’s detriment.”

Mother’s mental illness is a lifetime diagnosis, and

she has been hospitalized thirteen times. Although she

has been crisis free since March 2018, the Department

still raised substantial concerns that Mother’s “mental

health issues have not been sufficiently resolved and

that she cannot safely parent [J.T.].” During the PPR

hearing in December 2019 and January 2020, Mother

“stated repeatedly that mental health was not the

cause of her inability to care for her children.” Mother

“steadfastly maintained that her mental health had not

been an obstacle to caring for her children at any time.”

This assertion is―importantly―misguided. In our

opinion addressing the change of J.T.’s permanency

plan, Mother’s lack of insight into her mental illness

was key to our decision: “Mother continued to minimize

her mental health issues to a degree that is quite

troubling and could prove dangerous if she received

custody and no longer had the Department’s oversight.”

J.T. 2 at 35.

App. 25

Mother addressed this troubling statement in her

testimony at the TPR hearing. She said that there was

some confusion in the translation and interpretation

based on a double negative: “I had been saying it was

because, of course, the mental health has been the

main reason why my children have been taken away

from me.” Mother emphasized that her “mental health

issue has been an obstacle to prevent [her] to take care

of [her] children.”

The juvenile court was unconvinced by Mother’s

TPR testimony: “[Mother’s] attempt to disavow her

prior testimony was not credible. It rather cemented

the Court’s concern regarding her lack of insight into

the role her mental health history has played in the

lives of her children.”

Further, the court found that “[t]he practical effects

of Mother’s disability, with the deterioration in

functioning and lack of insight into core issues, elevates

the risk in terms of her ability to safely parent [J.T.]

over a long period of time.” The juvenile court noted

that its concern “is not that [Mother’s] mental health

has gone untreated, but that it has not resolved such

that [J.T.] would be safe in her care and custody.”

Mother’s mental illness, deterioration, lack of

appropriate insight, and inability to safely parent J.T.

led the juvenile court to determine that she was unfit

to remain in a parental relationship with J.T. We

affirm the juvenile court’s conclusion that Mother is

unfit.

App. 26

Mother’s Parental Relationship & J.T.’s Best

Interests

Mother charges that termination of her parental

rights was not in J.T.’s best interests because the two

had a parental relationship and family history to

preserve. Both the Department and Child counter that

termination was in J.T.’s best interests, namely, to

provide permanence.

Maryland caselaw acknowledges “a presumption in

our parental rights’ jurisprudence that a continuation

of the parental relationship is in a child’s best

interests.” Jayden G., 433 Md. at 53. Nevertheless, a

“critical factor in determining what is in the best

interest of a child is the desire for permanency in the

child’s life.” Id. at 82. “Permanency for children means

having constant, loving parents, knowing that their

home will always be their home; that their brothers

and sisters will always be near; and that their

neighborhoods and schools are familiar places.” Id. at

82–83 (cleaned up). Foster care should not be

permanent: “Long periods of foster care are harmful to

the children and prevent them from reaching their full

potential.” Id. at 83 (cleaned up).

The statutory scheme gives parents time to rectify

what brought the child into the Department’s care in

the first place: “The statute does not permit the State

to leave parents in need adrift and then take away

their children.” Rashawn H., 402 Md. at 500. The law,

however, recognizes “that children have a right to

reasonable stability in their lives and that permanent

foster care is generally not a preferred option[.]” Id. at

501.

App. 27

Mother cites In re Yve S. for the proposition that

just because she “is less than a perfect parent or that

the children may be happier with their foster parents

is not a legitimate reason to remove them from a

natural parent competent to care for them in favor of a

stranger.” Yve S., 373 Md. at 572. We distinguished

Mother’s situation from Yve S. in J.T. 2 for several

reasons: Mother has never had custody of J.T., and the

mother in Yve S. never showed such a concerning lack

of insight into what necessitated her child’s removal.

J.T. 2 at 38. Mother has not been able to demonstrate

competence in caring for J.T.; not a single witness could

express confidence in allowing Mother to parent J.T.

unsupervised. This is not merely a case of a Mother’s

mental illness preventing her from obtaining custody,

but “her ability to parent [J.T.], as well as her ability to

take care of herself without an extended support

system.” J.T. 2 at 39.

The juvenile court, in its analysis of J.T. and

Mother’s emotional ties, expressed that their

relationship has “a record of vacillating and

contradictory encounters . . . . At times, [J.T.] seems

happy to see her mother, and then within the same

visit will say to the community service aid ‘don’t leave

me.’” J.T. expressed consistent fears that she would be

left behind at visits and have to stay with Mother: “I’m

coming back, right?” Although she did experience

moments of joy and happiness with Mother, J.T.’s

foster parents “report[ed] incidences of regressive

behavior” after visits such as “bed-wetting, thumb

sucking, and whining[.]” The court found that

“termination of parental rights will allow [J.T.] to have

App. 28

permanence in the home of Mr. and Ms. P. and their

extended family.”

Simply put: J.T. cannot currently be safe in

Mother’s care, and not a single witness could predict

how long it would take to get there. J.T. has been

through so much loss and trauma in her life, and she

should not be subjected to wait indefinitely for

permanence. Murakami testified at length that J.T. is

thriving in the P. household, and that she did not think

J.T. could ever be safe in Mother’s care. The court could

not predict a time for J.T. to be safe in Mother’s care,

and the statutory scheme does not encourage courts to

keep children in foster placements until their parents

are potentially able to care for them in the future. We

evaluate the court’s conclusion for abuse of discretion,

and we see none here. It is with a heavy heart that we

affirm the juvenile court’s termination of Mother’s

parental rights.

Mother’s Visitation

Mother asserts that the court erred by reducing her

visitation with J.T. without a hearing to determine

whether it was in J.T.’s best interests. The Department

responds that the court did not err because Mother no

longer had a right to visitation after her parental rights

were terminated. Child agrees that the court did not

need an additional hearing to reduce visitation after it

found Mother unfit and terminated her rights.

Mother cites In re M.C., 245 Md. App. 215 (2020) to

state that trial courts must hold hearings when

reducing visitation if there are disputed factual claims

at play. In re M.C. was the product of a circuit court

App. 29

modifying a mother’s visitation without a hearing in a

CINA case. Id. at 219. We noted that a court “abuses

its discretion by not receiving testimony as to material,

disputed allegations when requested by a party unless

the disputed allegation is immaterial to whether the

child is in serious immediate danger or if modification

is required for the safety and welfare of the child.” Id.

at 231–32. When attempting to change the visitation,

the local department’s “allegations raised a substantial

question as to the safety and welfare of [the child]

during unsupervised visitation, but they were disputed,

and [the mother] requested a hearing to present

testimony and witnesses.” Id. at 232. We held that the

court “should not have modified [the mother’s]

visitation with [the child] without a hearing, and that

[the mother’s] rights to due process were violated when

visitation was modified without one.” Id.

In this case, however, Mother had her parental

rights terminated. She no longer has any duties,

obligations, or rights toward J.T. See FL § 5-325(a) (“An

order for guardianship of an individual . . . terminates

a parent’s duties, obligations, and rights toward the

individual[.]”). Mother even concedes that “the right to

visitation is usually rendered moot” after the

termination of parental rights. The court was under no

obligation to continue any visitation; it is now a

privilege. Mother’s interest in visitation is no longer

protected by due process, so she is not entitled to a

hearing.

Jurisdiction Over Father

Father claims that the court’s exercise of personal

jurisdiction over his fundamental right to parent does

App. 30

not comport with traditional notions of fair play and

substantial justice. The Department and Child both

respond that personal jurisdiction over a party is not

required as long as the court had jurisdiction over the

guardianship petition.

Section 9.5-201 of the Family Law Article, adopted

from the Uniform Child Custody and Jurisdiction

Enforcement Act (“UCCJEA”), dictates the grounds for

jurisdiction over initial custody determinations when:

[T]his State is the home state of the child on the

date of the commencement of the proceeding, or

was the home state of the child within 6 months

before the commencement of the proceeding and

the child is absent from this State but a parent

or person acting as a parent continues to live in

this State[.]

FL § 9.5-201(a). This section is “the exclusive

jurisdictional basis for making a child custody

determination by a court of this State.” FL § 9.5-201(b).

Further: “Physical presence of, or personal jurisdiction

over, a party or child is not necessary or sufficient to

make a child custody determination.” FL § 9.5-201(c)

(emphasis added). The same court has “exclusive,

continuing jurisdiction” over the custody determination

until a court in that State or a court of another state

decides otherwise. See FL § 9.5-202(a).

While he concedes the court had jurisdiction over

J.T.’s initial custody determination, Father argues that

the court’s jurisdiction is limited to just that initial

determination. We see little merit to that argument in

light of the court’s exclusive, continuing jurisdiction.

App. 31

Further, Father contends that, even if the court had

jurisdiction, “[t]he UCCJEA requires more than notice

and a futile opportunity to be heard in a TPR. The

statute must be construed to avoid a conflict with due

process requirements for a meaningful opportunity to

be heard.” He focuses on physical presence for his

meaningful opportunity: “Father challenged the

fairness of the court subjecting him to its exercise of

personal jurisdiction, because, without the ability for

him to be physically present in Maryland, the risk was

too high of an erroneous deprivation of his fundamental

right to parent.” Father believes that the court focused

on his absence from Maryland, violating notions of

fairness. He contends that his participation via

WhatsApp’s video platform “plainly did not substitute

for his physical presence in Maryland in order to

demonstrate his [parental] fitness.”

We have addressed physical participation in TPR

proceedings when an out-of-state incarcerated father’s

parental rights were in question. In re

Adoption/Guardianship No. 6Z980001 in Dist. Court

for Montgomery Cty, 131 Md. App. 187, 189 (2000).

There, the incarcerated father was unable to attend

proceedings, but the court allowed him to obtain

certified copies of the audiotapes and submit a written

statement within sixty days. Id. at 190. The court

ultimately terminated his parental rights. Id. at

190–91. The father alleged that the court denied him

his right to due process when it (1) “denied the motion

to allow him to listen to the proceeding via speaker

telephone,” and (2) “denied the motion to dismiss or

continue” proceedings until he could attend the

hearing. Id. at 191.

App. 32

We first addressed the court’s refusal to conduct the

proceedings in his absence and its denial of his motion

to continue. Id. at 191. This was an issue of first

impression, so we surveyed many sister states, “and

none have concluded that an individual who was

incarcerated under circumstances not permitting

transportation or otherwise unable to appear

personally in court has an absolute right consistent

with the Due Process Clause to appear at a termination

of parental rights hearing.” Id. at 192–93. We

determined that the proceedings were appropriate as

long as the parent was represented by counsel and

provided with alternative means of participation. Id. at

193.

We then addressed the father’s contention

regarding the court’s denial of his motion to listen via

speaker telephone. Id. This issue was also one of first

impression, so we looked to our sister states to conclude

that the father was still allowed to meaningfully

participate through counsel and by his alternative

means of participation after the hearing. Id. at 194–97.

We held that “[t]he question of what process is due

depends on the facts of each case,” and that “[w]hat is

required is meaningful access to the courts.” Id. at 199.

We do not equate Father’s absence with

incarceration. We use No. 6Z980001 to illustrate levels

of participation and due process appropriate when a

parent is unable to attend the TPR hearing in person.

In the present case, Father participated in the hearing

contemporaneously via WhatsApp. His counsel

participated in the proceedings, cross-examined

witnesses, presented witnesses, and admitted evidence.

App. 33

Father does not assert that his counsel was ineffective,

or that he was denied the opportunity to participate in

the hearings. Father asserts that his participation via

a remote platform was not meaningful participation,

but fails to mention that all parties participated

remotely in the proceedings due to the Covid-19

pandemic. Father had every opportunity to present his

case through witnesses, evidence, and his own

testimony. We see no error in the exercise of

jurisdiction in this case.

Father’s Exceptional Circumstances

Father asserts that the court erred in finding

exceptional circumstances sufficient to terminate

Father’s parental rights because any exceptional

circumstances “did not provide a substantial basis to

conclude that the presumption that [J.T.’s] best

interest is to maintain a relationship with her father

has been rebutted.” He charges that any exceptional

circumstances are temporary and correctable. The

Department responds that clear and convincing

evidence supported the trial court’s conclusion that

exceptional circumstances existed and that the

parental relationship with Father was detrimental to

J.T.’s best interest. Child argues that exceptional

circumstances exist, and were partially based on

Father’s “failure to act or assert himself as a parenting

resource for [eighteen] months while J.T. was in foster

care[.]”

The Court of Appeals looked at exceptional

circumstances in In re Adoption/Guardianship of C.E.,

464 Md. at 54. The Court noted that “[i]n examining

whether an exceptional circumstance exists, a juvenile

App. 34

court should look to whether there is a reason to

terminate the parental relationship because the best

interest of the child is not served through continuing

the parental relationship.” Id. There, both parents had

their parental rights in question, but the juvenile court

ultimately did not terminate either parents’ rights,

continuing the child’s placement with extended family.

Id. at 44. While the juvenile court combined its

analysis as to the father’s unfitness and exceptional

circumstances, the Court of Appeals noted “an

important exceptional circumstance that the juvenile

court failed to give sufficient consideration and that

would have warranted the termination of parental

rights in this matter.” Id. at 59–60.

The Court evaluated the father’s exceptional

circumstances, expressing its “concern[] with the

continuing relationship between [the father] and [the

mother].” Id. at The father “refuse[d] to acknowledge

[the mother’s] mental health conditions despite the fact

that [the mother was] undoubtedly unfit to care or be

left alone with [the child].” Id. He was content to live

with the mother and rely on her for childcare during

work. Id.

The Court looked at cases in sister states that

terminated parental rights not based on a parent’s

direct danger to the child, but failure to recognize the

other parent’s inability to safely parent. Id. at 60–61.

It looked at cases where a father “did not seem to

understand the limits of son [and] made excuses for the

behavior of the mother.” Id. at 61. Focusing back in on

the relevant facts, the Court noted that the father “has

not shown he can be a placement resource” for his

App. 35

child. Id. at 62. He continually “fail[ed] to recognize the

threat [the mother] is to [the child’s] safety and

welfare.” Id. The Court stated, based on these

exceptional circumstances, “the juvenile court should

have looked to . . . termination of parental rights to

permit guardianship and adoption.” Id. at 62–63.

We consider C.E. instructive. The Department first

connected with Father on June 10, 2016; although it

asked him for an email and physical address, the

Department had to receive that information later from

Mother. After failed connections over the following few

months, Father contacted the Department on

September 11, 2016, and the Department advised him

to seek the services of the public defender’s office,

which also provided Mother’s representation, starting

with the initial CINA proceedings. Father had minimal

contact with J.T. from the time of her birth until 2018.

Until the most recent hearing, Father consistently

stated that he wanted J.T. to be with Mother first, and

offered himself as a backup: “He . . . has lived in

Cameroon since the outset of this case, seemingly

content to let the child’s mother serve as sole caretaker

once she was born in the United States. [J.T.] had been

in foster care for 1 1/2 years before he evidenced any

meaningful interest[.]” He was consistently fine

deferring to Mother, even after J.T. was removed from

her care. Father continually supported Mother’s

position that she should obtain custody, only offering

himself as a back-up if she could not. He did not assert

himself as a primary parenting resource until the

instant trial.

App. 36

The court found that “it is hard to project what

[parenting] services might be likely to cause a lasting

parental adjustment.” There was “little real

engagement” during J.T. and Father’s virtual visits.

The juvenile court was also skeptical of sending J.T. to

live with Father abroad:

The Court finds that sending [J.T.] to Cameroon

is not an “additional service.” It is a decision to

displace her from all nurturing relationships

here, and essentially remove her to live among

strangers in unknown surroundings. Nor is

there any evidence that such a move would bring

about a “lasting parental adjustment.” It is a

gamble that places [J.T.] in the untenable

position of being the one to lose the most should

it not succeed.

In finding exceptional circumstances, the court

noted that “[s]ending [J.T.] to Cameroon would mean

separating her from her sister.” Mrs. P. remarked just

how bonded J.T. and G.N. are: “If we’re going

somewhere and somebody gives her something, she’s

going to get something for her sisters as well.”2 Mrs. P.

talked about how J.T. nurtures G.N., such as saying

“You’ve got to sit on the potty. Come to the bathroom

with me,” or “come on [G.N.], let’s go wash our hands.”

Mother preferred—if she could not have J.T.— that

J.T. would go to her cousin in Hawaii, so G.N. can go

with her too. She wanted to keep the two together, and

knew that G.N. would not go to Cameroon with J.T.

2

J.T. is also bonded with K., the P. family’s daughter.

App. 37

The court found that it was “unable to determine

[Father’s] fitness as a parent” because there was “not

enough information.” It did, however, find that his

circumstances were exceptional based on Father’s

absence in J.T.’s life and the high risk associated with

sending her to Cameroon. Father time and time again

deferred to Mother for J.T.’s care, even after J.T.’s

removal. Father and J.T. do not speak the same

language. Father and J.T. have never met in person,

nor have they developed a meaningful, concrete

relationship through their video connections. J.T. does,

however, share a close relationship with her sister,

G.N. Sending J.T. to Cameroon—or anywhere outside

of her current environment where she does not speak

the language or know anyone—would be a significant

gamble and is not in her best interests. We see no

abuse of discretion.

J.T.’s CINA Case

The circuit court closed J.T.’s CINA case on

November 24, 2020. Father appeals the closure of J.T.’s

CINA case, using this appeal as a vessel to contest her

initial CINA declaration. The Department initially

moved to dismiss this appeal, arguing that it was moot

and not allowed by law because “the guardianship

order frustrates any possible remedy and renders this

appeal moot.” Child also moved to dismiss, asserting

that “Father does not have legal basis to appeal the

[order closing the CINA case] and any remedy he seeks

must be addressed in the appeal of his termination of

parental rights[.]”

A CINA, by statutory definition, is “a child who

requires court intervention because . . . [t]he child has

App. 38

been abused [or] has been neglected . . . and . . . [t]he

child’s parents, guardian, or custodian are unable or

unwilling to give proper care and attention to the child

and the child’s needs.” Maryland Code (1973, 2020

Repl. Vol.), Courts & Judicial Proceedings Article

(“CJP”) § 3-801(f). An “order for guardianship of an

individual . . . terminates the individual’s CINA case.”

FL § 5-325(a). After granting guardianship and

terminating parental rights, the juvenile court “[s]hall

include a directive terminating the child’s CINA case”

in a “separate order accompanying an order granting

guardianship of a child[.]” FL § 5-324(b).

We have long acknowledged the interrelated nature

of CINA and TPR cases: “While a CINA adjudication

must precede a TPR determination, it is a separate

legal proceeding.” In re Adoption/Guardianship of

Cross H., 200 Md. App. 142, 150 (2011). Despite this

relationship, “there is no prohibition against the

initiation of TPR proceedings during the pendency of a

CINA appeal.” Id. at 151. Further: “our statutory

scheme recognizes that an order of guardianship

terminates a CINA case.” Id. at 150.

The juvenile court terminated Mother and Father’s

parental rights, and in doing so, granted guardianship

to the Department. J.T. cannot be a CINA because her

guardian is now able and willing. See CJP § 3-801(f).

Because we affirm the grant of the order for

guardianship terminating Mother and Father’s

parental rights, we need not reach the substance of

Father’s argument. While we are sympathetic to

Father’s frustration about the complicated history of

J.T.’s CINA case, and the difficulty of litigating from

App. 39

afar, the statutory scheme requires the closure of a

CINA case after an order for guardianship. Father’s

appeal regarding the CINA determination is not

allowed by law.

CONCLUSION

Our decision is not an easy one. We are wholly

cognizant of the progress Mother has made over the

years and commend her on her continued stability. But

we cannot look at Mother’s progress and stability alone;

the standard at the forefront of our decision is the best

interests of the child. With that standard in mind, we

hold that the juvenile court did not abuse its discretion

in determining that J.T.’s best interests would be

served by severing Mother and Father’s parental

rights.

Although we affirm, we express a strong desire for

continued visitation with Mother and Father. Mrs. P.

noted in her testimony that her “intentions are to adopt

[J.T.]—and [G.N.], if possible.” In her testimony at the

PPR hearing, Mrs. P. expressed an openness to

mediating visitation with J.T. and Mother. We hope

that Mrs. P. will continue down this path—visits with

both Mother and Father—as long as it remains in J.T.’s

best interests.

JUDGMENT OF THE CIRCUIT COURT

FOR MONTGOMERY COUNTY

AFFIRMED. COSTS TO BE PAID BY

APPELLANTS.

App. 40

APPENDIX C

IN THE CIRCUIT COURT FOR

MONTGOMERY COUNTY, MARYLAND

JUVENILE DIVISION

Case No. 06-I-16-000056

[Filed: February 28, 2018]

__________________________________________

IN THE MATTER OF:

)

)

J. T.

)

__________________________________________)

HEARING

Rockville, Maryland

February 28, 2018

DEPOSITION SERVICES, INC.

12321 Middlebrook Road, Suite 210

Germantown, Maryland 20874

(301) 881-3344

WHEREUPON, the above-captioned matter was

before the Court on February 28, 2018.

BEFORE:

THE HONORABLE

STORM, JUDGE

APPEARANCES:

MAC EHRLICH, Esq.

(For the County)

HARRY

C.

App. 41

SARA FURLOW, Esq.

(For the Child)

SYLVIA LONG, Esq.

(For the Mother)

ISABELLE ROXANE RAQUIN, Esq.

(For the Father)

[pp. 29-39]

MR. EHRLICH: I just wanted to make sure the

Court had that in mind. Thank you.

THE COURT: But as a practical matter, I don’t

know that that’s the best approach with that.

MR. EHRLICH: Thank you, Your Honor.

MS. LONG: And there’s a case law that says Your

Honor, as the TPR judge -THE COURT: Right. I have the discretion to stay it.

MS. LONG: Exactly.

THE COURT: Right, and that’s probably what I’m

going to do. All right. Anything else?

MS. RAQUIN: I would note my objection after your

ruling on the jurisdiction -THE COURT: Okay.

MS. RAQUIN: -- issue.

THE COURT: All right. And I know Ms. Kelly’s

sitting there thinking that she’s glad she’s like moving

to New Mexico or wherever she’s going. All right.

App. 42

JUDGE’S RULING

THE COURT: This case involves an almost

2-year-old child, [J.T.]. Pending before the Court are

the motions filed by the father, [I.M.] (phonetic sp.).

MR. EHRLICH: M.

THE COURT: M.

MS. RAQUIN: M.

THE COURT: M. To vacate the permanency

planning review hearing order entered on September

19, 2017 at Docket Entry 75 for lack of personal

jurisdiction and a violation of due process in the failure

to provide notice to him of the proceedings.

Alternatively, he asked that the permanency planning

order be modified and that the Court order

reunification services for him. The motion is at Docket

Entry 79 and 80. He has also requested in the

guardianship case, No. 6Z17033, that it be dismissed

largely on the same grounds and the Department has

opposed both motions.

While a parent has a fundamental right to raise his

or her child, it is well-recognized that the right is not

absolute. It is subject to state intervention acting as

Parens patriae to protect the health, safety and welfare

of the child. In this case, we’re dealing with a case

where the mother gave birth to the child in

Montgomery County. The father was and is in

Cameroon, has never met the child in person although

he has had limited contact by phone and/or video.

App. 43

The child was removed from the mother’s care

shortly after birth because of the mother’s mental

health issues, issues with which she has continued to

struggle. Until my September 2017 order, the

Department was recommending and a permanency

plan order that was put into place by Judge Maloney

was reunification with the mother. Father was aware

of that and through his limited telephone and e-mail

contacts, through his limited e-mail and telephone

contacts with the Department, and it appears that he

was fine with that reunification plan. At the same time,

he was also aware that [J.T.] had been removed from

the mother’s care but he knew that the plan was to

reunite [J.T.] with her mother.

When the plan changed, however, and the natural

parents became threatened with the potential loss of

their child to adoption, the father who had previously

shown limited interest in or perhaps a limited need to

engage in the proceeding emerged asserting his

parental rights and objecting to his child being taken

away without notice.

As I mentioned, I spent considerable time reviewing

this over the last several days. I’ve reviewed the CINA

file, the parties’ memoranda, the cases, and while I’m

not convinced by the personal jurisdiction argument

and I’ll deny the motion on that basis, I am convinced

that the father was not given proper notice of the

proceedings as required under the Maryland rules and

as a matter of fundamental fairness and due process.

With respect to the personal jurisdiction argument,

the case involves a child born here. The child is U.S.

and Maryland citizen by birthright. The CINA case is

App. 44

one involving a status determination as I see it unlike

the Hawaii case, In Re Doe at 926 P.2d 1290 (1996

case) cited by the father, Maryland has the greatest

connection to the child, the mother and is the

appropriate forum for this matter to be litigated. The

child has never been anywhere but Maryland, so I

think that the courts of this state may properly act

without having personal jurisdiction over the

non-resident father.

This does not, however, end the matter. Maryland

Rule 11-110(c) provides that except in the case of a

hearing on a petition for continued detention or

sheltered care, the clerk shall issue a notice of the time,

place and purpose of hearings scheduled pursuant to

the provisions of this title. The notice will be served on

all parties, together with a copy of the petition or other

pleading, if any, and the manner provided by Section

(c) of rule 11-104 at least five days prior to the hearing.

Rule 11-104(c) requires in the case of a non-resident

parent or where the parent cannot be served by the

summons and petition that notice of the pendency of

and nature of the proceeding be given as directed by

the Court and proof of the steps taken to give notice as

justice shall require.

In this case, even before the 3-816.2 review hearing

in 2016, the Department and the Court had, at a

minimum, an e-mail address for the father. The e-mail

communication between the father and Ms. Kelly was

docketed at Docket Entry 40. In that e-mail, father

identified himself to the Department as the father and

expressed at a minimum concern for what was going to

happen, yet the father was essentially forgotten in

App. 45

terms of the Court proceedings. As relevant to the issue

now before the Court, he was not notified of the

September permanency review hearing, and while

Judge Maloney’s permanency plan order, which set the

September date for the review hearing contained the

standard language about serving the parties by first

class mail, that wasn’t an option here because in that

same order, it indicated, the order itself said that there

was no address yet for the father, the father hadn’t

provided a mailing address, yet by that time both the

Department and the Court had information that would

have allowed some minimal notice to be given to the

father by e-mail at the least.

I also note that COMAR Section 07.02.22.19(d)

provides that in the case of periodic review of

permanency plans, the local Department shall in

preparation for the periodic review held by the Court,

give 10 days’ notice of the review whenever possible to

the parents and document the notice in the child’s case

record. Here, the evidence showed that on August 18,

2017, the day the report was due, Ms. Kelly spoke with

the father and the call dropped. She testified that she

did not tell him that she intended to recommend a

change in the plan and he was never sent a copy of the

Court report. She also testified that the father was not

included in a family involvement meeting which she

acknowledge also was a mistake.

Granted, the father did not provide a physical

address when it was requested several times, but that

does not in my opinion outweigh what I think is the

fundamental fairness issue here that the biological

father of this child receive notice by at least the method

App. 46

known to be effective of the proceedings and the

possible loss of this child to adoption.

What was said by the Court of Special Appeals in

Barry E. at 107 Md. App. 206, 222-23 (1995) in an

opinion by Chief Judge Wilner at that time, the parties

are entitled to notice so they can have the opportunity

to object to such proceedings even if the Court is

justified in overruling the objection and to review what

occurred. If no notice is given, how are they to know

that there’s anything to review?

In making these findings, I do so mindful that at the

end of the day, the primary concern is the best interest

of the child, and while there is certainly an interest in

achieving permanency, I do not find that [J.T.]’s best

interest will be materially impacted by this decision at

this time. Moreover, there’s at least a question of

whether it would be in her best interests for me to rule

in the Department’s favor, allow the case to proceed as

the Department desires only to have things later

reversed as I believe they would be if I were to rule

otherwise.

There is an opportunity to right the ship now. The

father is represented, he’s in the case and his

circumstances may be examined and considered. So, I

will grant the father’s motion in the CINA case to

vacate the September 19th order at Docket Entry 75.

The permanency plan will at this time continue to be

reunification unless and until changed at a future

review hearing. The Department will be ordered to

exercise reasonable efforts to determine father’s

circumstances and investigate him as a possible

placement, again within reason. The father will be

App. 47

ordered to cooperate reasonably with the Department

and to provide such information as the Department

reasonably requests.

Notice of further proceedings shall be provided to

father’s counsel and service on counsel shall be deemed

service on the father. The permanency review hearing

shall be continued for sufficient time to allow the

Department to complete its investigation of the father

and I would think that 90 days should suffice for that.

With respect to the motions in the guardianship

case and TPR case, the father’s motion requesting the

Court order father here, for the Department to pay his

travel expenses, that motion will be denied, and finally

with respect to the motion to dismiss the guardianship

case, the father is here participating in that case. The

issue as I see it is whether the guardianship TPR case

should be stayed while the CINA case is proceeding as

it is. The issue of staying the TPR case is in the Court’s

discretion, In Re Jaden, 433 Md. 50 and In Re

Quintline B, 219 Md. App. 187. As the courts in those

cases discussed, the considerations are not identical in

the two different cases.

TPR proceedings do not require that there be a

change of the permanency plan. Other bases include

the child being out of the home for 15 of the last 22

months. If that applies here, it might not quite apply

yet, and where the Department determines that it’s in

the best interest of the child under Family Law

5-525.1(a) and (b). I’m also mindful of the directive that

permanency should be achieved within 24 months after

the date of initial placement. Here we have a child who

is approaching the 24 month mark. However, all things

App. 48

considered, absent the Department’s willingness to

dismiss the TPR case without prejudice at this time, I

think the appropriate thing to do is to stay that case

until the father’s situation is reviewed by the

Department and at least until another further review

in the hearing in the CINA case is held.

So, I will grant a stay of the case for 90 days unless,

Mr. Ehrlich, you tell me that you think it makes more

sense to dismiss that case right now.

MR. EHRLICH: Well, are those only two options?

THE COURT: Not really.

MR. EHRLICH: So -THE COURT: I don’t think it should proceed right

now -MR. EHRLICH: Yes.

THE COURT: -- is what I'm saying, so.

MR. EHRLICH: I understand. The Department

takes exception to the -THE COURT: All right.

MR. EHRLICH: -- Court’s ruling. The Department

believes that the import of the law, the thrust of the

law is permanency for children. 90 days is going to

delay that. His father has waited this child’s entire life

to even meet her and the Department needs to go

forward with it. So, essentially, permanency denied

type of argument with regard to the exceptions. Thank

you, Your Honor.

App. 49

THE COURT: All right. So, with that, just so

everybody’s clear, the father’s motion with respect to

vacating the September order is granted on the basis of

the defective notice issues, not on the ground that there

is a personal jurisdiction issue. The request to pay the

father’s expenses under UCCJEA is denied and the

TPR case will be stayed for 90 days.

MR. EHRLICH: My exceptions were only directed at

the stay, the stay order.

THE COURT: All right. All right.

MS. RAQUIN: May I make some exceptions, Your

Honor, just for the record -THE COURT: Sure.

MS. RAQUIN: -- in terms of the jurisdiction order?

THE COURT: Sure. Yes.

MS. RAQUIN: So, we do take exception that the

Court found that personal jurisdiction was not

required, both in the CINA case and in the TPR case.

Is the Court finding that Mr. M. also did not have

minimal contacts with Maryland and despite the lack

of minimal contact -THE COURT: I don’t think it makes any difference

because I don’t think that the Court needs personal

jurisdiction over him under the circumstances that

exist.

MS. RAQUIN: Would the parties, and I think that

was part of the testimony from the social worker, but

App. 50

my intention was to call Mr. M. to establish for the

record lack of personal contacts.

THE COURT: I don’t think there's any dispute that

he’s never had any contact with, other than whatever

communications he’s had with the Department by

phone and e-mail.

MR. EHRLICH: As far as the Department knows,

he’s never been here.

THE COURT: Right.

MS. RAQUIN: Or done any business with the

state -MR. EHRLICH: We don’t know

MS. RAQUIN: -- of Maryland in any way.

MR. EHRLICH: -- about that.

THE COURT: Yes.

MR. EHRLICH: He’s never been here, as far as we

know. That’s all we know.

MS. KELLY: Yes.

MS. RAQUIN: And so with that, on the record, I do

take exception of -THE COURT: All right.

MS. RAQUIN: -- your ruling.

THE COURT: All right.

MR. EHRLICH: Your Honor, may --

App. 51

THE COURT: Some jurisdiction has to be able to

make these determinations, and there’s no other logical

place to do it. So, I do think that this is one of those

status determinations where the rules are a little

different. So, that’s my ruling, right or wrong.

MS. RAQUIN: Would the Court entertain the

mother’s request for a status hearing in 30 days to see

if the Department is going to pay for travel expenses?

MR. EHRLICH: The Department is, I’ll tell you

what, rather than come back here for a hearing, if the

Department decides in its infinite wisdom and wants to

pay for travel expenses, it will file a memo immediately

and let the Court know. At this point, the Department

is not inclined to pay for his expenses.

THE COURT: All right.

MR. EHRLICH: So -MS. LONG: What about the home study? In other

words, what are we doing, you know? We’re just going

to wait three months and then argue reasonable

efforts?