In re Adoption/Guardianship No. T98314013

HOLLANDER, Judge. The Baltimore City Department of Social Services (the “Department”), appellee, filed a petition for guardianship with the right to consent to adoption or long-term care short of adoption (the “petition”), seeking to terminate the parental rights of Donna W., appellant, as to her daughter, Jimetra D. 1 After a hearing on October 26, 1999, at which the parties proceeded by way of proffer, the Circuit Court for Baltimore ⁴⁰⁴ City granted the petition. Appellant timely noted her appeal and poses one question for our consideration, which we have rephrased slightly: Was the evidence legally sufficient to terminate the parental rights of the natural mother?[ 2 ] For the reasons that follow, we shall affirm. FACTUAL BACKGROUND Jimetra was born in Baltimore on May 26,1994, to appellant and Jimmy D. Jimetra’s father is not a party to this appeal, however.

Appellant also has an older daughter, India. The record does not disclose India’s date of birth or age, or whether Jimmy D. is her father. Several months before Jimetra’s seeond birthday, on February 27,1996, appellant’s mother (the “Grandmother”) 2 3 went to appellant’s residence to visit and discovered that appellant had left Jimetra alone in the residence. Because the Grandmother heard Jimetra crying but could not gain access into the home, she contacted a Baltimore City police officer, who made a forced entry.

The incident of suspected neglect was reported to the Department, and Jimetra was immediately placed in the care of her Grandmother, who had apparently cared for Jimetra previously, when appellant was incarcerated. 4 Moreover, in 1991, appellant had voluntarily placed India in the care of the Grandmother. ⁴⁰⁵ On February 28,1996, the Department filed a petition in the circuit court alleging that Jimetra was a “child in need of assistance” (“CINA”), pursuant to Md.Code (1974, 1998 Rep. Vol., 1999 Supp.), § 3-801(e) of the Courts & Judicial Proceedings Article (“C.J.”). 5 Thereafter, the circuit court issued a shelter care order and the Department placed Jimetra in her Grandmother’s care. An uncontested adjudicatory hearing was held on March 27, 1996, at which appellant, who was present and represented by counsel, entered into a stipulation with the Department. Although that stipulation is not included in the record, counsel for the Department addressed the terms of that stipulation at the October 1999 termination hearing, stating: [Tjhat. the mother was in a—was currently in a drug treatment program, that she had been attending since June of 1995, and that she was in that program four days a week to address substance abuse issues, and that at that time Mother indicated that she had been drug-free for 18 months.

The stipulation also indicated that the daycare—the drug treatment program prohibited the Mother from bringing her children to the drug treatment program with her and that on the occasion of February 27th, 1995, Mother did not have anyone to care for ... Jimetra____ The stipulation further indicates, Your Honor, that the Mother was currently on parole and that she was being closely supervised by her parole officer and that the, the Mother had been attending drug treatment regularly and undergoing random drug tests and that all those tests had ⁴⁰⁶ been negative for illicit substances, that the father of the child did not participate in the child’s care and that his whereabouts remained unknown, and that the [Grandmother] was willing to continue to care for this child while the Mother continued her drug treatment and worked toward reunification. ... [T]he stipulation ... indicated that the Mother was to have liberal visitation with the child, as arranged by [the Grandmother] and herself; that the Mother was to cooperate with the Department; and that the Department agreed to refer the Mother for parenting classes; and that the Mother agreed to continue in substance abuse treatment, including urinalysis and recommended aftercare services. Following the hearing in March 1996, the Department evidently had difficulty in arranging meetings with appellant. Appellant also failed to provide the Department with confirmation of her continued participation in a drug treatment program.

Moreover, between the adjudicatory hearing on March 27, 1996, and the disposition hearing on May 22, 1996, Donna W. only visited Jimetra on one occasion. A disposition hearing was held on May 23, 1996, at which appellant appeared with counsel. Again, the parties proceeded by stipulation, agreeing that Jimetra was a child in need of assistance and to commitment to the Department for continued relative placement. At the October 1999 termination hearing, the Department’s attorney reviewed the stipulation from the disposition hearing, stating: [T]he Department had attempted to meet with the Mother to discuss plans for reunification but had been unable to do so; ... the Mother had had one visit with [Jimetra] since the March 26th, 1996, hearing; and ... the Department had received no information from the Mother as to her continued participation in drug treatment or her random urinalysis testing.

At that time, the child had no special needs, and the parties agreed to a finding of CIÑA and commitment to the Department ... for relative placement and that further ⁴⁰⁷ disposition orders were that the Mother was to participate in substance abuse treatment, including random urinalysis and recommended aftercare. Mother was to maintain regular visitation with the child as arranged by the caretaker. Mother was to complete parenting classes and cooperate with the Department; that the Mother was to maintain regular contact with the Department and enter into a Service agreement with the Department and Mother was to provide the Court and the Department with documentation of her participation in [a] drug treatment program and release the results of her random urinalysis to the Department____ Subsequently, the Department drafted several service agreements. Nevertheless, appellant never agreed to the terms of a service agreement.

Moreover, the Department claimed that appellant’s visits with Jimetra after May 1996 were “somewhat sporadic,” interrupted in part by an additional period of incarceration for a violation of probation. Additionally, appellant did not provide the Department with documentation concerning: (1) participation in a drug treatment program; (2) participation in a parenting class; or (3) the results of random urinalysis tests. Jimetra did very well in her Grandmother’s home. 6 Both Jimetra and India were in their Grandmother’s care until January 1999, when the Grandmother unexpectedly died from a stroke. Thereafter, both girls were placed with Sherine G., a maternal relative.

At that time, appellant had not yet secured full-time employment, and she had only lived in her home for about a month. According to the Department’s proffer at the termination hearing, Jimetra “made an appropriate adjustment to the maternal aunt’s home.” Appellant did not visit Jimetra in Sherine’s home, however, because of ⁴⁰⁸ “conflict” and “tension between the Mother and the caretaker.” On December 14, 1998, the Department filed its petition to terminate appellant’s parental rights, 7 to which appellant timely objected. Because the Department was unable to locate Jimmy D., the Department successfully moved to waive notice to Jimmy D., pursuant to Md.Code (1999,1999 Supp.), § 5-822 of the Family Law Article (“F.L.”). 8 Accordingly, the father was deemed to have consented to the petition. As noted, the parties proceeded by proffer at the termination hearing on October 26, 1999.

Although appellant did not attend that hearing, she was represented by counsel. A footnote in appellant’s brief explains that appellant was “detained” at the tíme and was therefore unable to attend. No other information has been provided as to how or why appellant was detained. Most of the facts set forth above were derived from the proffer made by the Department’s counsel at the termination hearing.

At the close of the proffer by the Department’s attorney, Linda Davis, the supervisor of the worker assigned to Jimetra’s case, verified the accuracy of the proffer. Counsel for Jimetra and counsel for appellant declined the opportunity to cross-examine Davis. The Department also offered its record into evidence as an exhibit. Although Jimetra’s counsel did not object, the mother’s attorney noted a “standing objection to the Department’s record,” stating: “I do not believe it’s a business record and some of the items that are contained therein are not kept in ⁴⁰⁹ the ordinary course of business.

They are not items that the social worker herself would have prepared.” The court said it “will sustain in part and overruled in part.” It then “admit[ted] [only] those portions of the record that do not contain inappropriate hearsay.” Following the Department’s case, Jimetra’s counsel informed the court as follows: Your Honor, I am also asking this Court to grant the Petition of the Department. The child, Jemitra [sic], is doing very well with the relative who she calls Renny. And, of course, she has had a very tragic incident when the grandmother, with whom she was for most of her life, died very suddenly. She is going to kindergarten.

She says that she would like to stay with Renny and talked [sic] with mommy on the phone. And her sister, India, who is also in the system now and adjudication is coming up next week, lives with her in the house. We looked at the house, we spoke to the caretaker. We are satisfied that the child would be in a stable environment if staying there.

Appellant’s attorney then made a proffer on behalf of her client. Appellant’s counsel explained that Jimetra had lived with the maternal Grandmother with appellant’s consent. Indeed, appellant had agreed with the Grandmother “that [Jimetra] should remain there and should grow up in [the Grandmother’s] home.” According to appellant’s counsel, when Jimetra lived with the Grandmother, appellant “maintained contact with her mother and her child through telephone contact, as well as visits.” After Jimetra was placed with a relative following the Grandmother’s tragic and unexpected death, appellant did “not have an opportunity to see her child.” Appellant’s attorney explained: The relative is a maternal cousin to my client who she does not have a relationship with, and the relationship, as such has deteriorated since the passing of the [Grandmother. There is some family tension as to what was the cause ⁴¹⁰ of the [Grandmother's passing, which was a massive stroke; but that because of that tension between her and the cousin who is now caring for her children she does not have an opportunity to see her children.

The only time she really sees the children are [sic] when they’re in court. And when we were last in court, there was a very nasty exchange between the caretaker and the Mother. And so, that is one of the main reasons why she has not been able to maintain contact with her children. Appellant’s attorney also elaborated upon the situation that led appellant to leave Jimetra home alone on February 27, 1996.

Appellant’s lawyer explained that after Ms. W. was released from incarceration, she was enrolled in a drug treatment program as a condition of her probation. Initially, the program allowed its enrollees to bring their children. That policy was subsequently changed, however, and Ms. W. was faced with the dilemma of either leaving Jimetra alone in the house or violating her probation. Regrettably, Ms. W. made a decision to leave Jimetra at home, because “she didn’t think she would be gone very long” and she felt that Jimetra “would be safe while she was gone.” According to appellant’s lawyer, by the time of the termination hearing, appellant had maintained a stable home for approximately ten months and had been employed, full-time, for nine months.

Therefore, she was in a position to care for Jimetra. Further, counsel said: [T]hroughout the time [appellant’s] child was placed with her mother she was wrestling with the decision about whether or not to let her mother raise her child. She had come to the conclusion to let her mother raise her child, but then her mother passed away, and she thought that would be an opportunity that she should step forward and regain custody of her children. That did not take place, and she has sought for her children to be returned to her since that time, that she’s in a position to care for them, and that would be her testimony.

We shall include additional facts in our discussion. ⁴¹¹ DISCUSSION A. It is well settled that a parent has a fundamental, constitutional right to raise his or her own child. See In re Adoption/Guardianship No. 10941, 335 Md. 99, 112 , 642 A.2d 201 (1994); In re Adoption/Guardianship No. J970013, 128 Md.App. 242, 247 , 737 A.2d 604 (1999); In re Adoption/Guardianship No. 94339058/CAD, 120 Md.App. 88, 97 , 706 A.2d 144 (1998); In re Adoption/Guardianship No. 95195062/CAD, 116 Md.App. 443, 454 , 696 A.2d 1102 (1997); see also Santosky v. Kramer, 455 U.S. 745, 753 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982) (acknowledging that a parent’s “freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment”). Thus, cases involving termination of parental rights are often particularly difficult. In Santosky, 455 U.S. at 759 , 102 S.Ct. 1388 , the Supreme Court said: “When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.” The Court of Appeals similarly recognized the seriousness of such a proceeding in Walker v. Gardner, 221 Md. 280 , 157 A.2d 273 (1960), stating: [A]doption decrees cut the child off from the natural parent, who is made a legal stranger to his offspring.

The consequences of this drastic and permanent severing of the strongest and basic natural ties and relationships has led the Legislature and this Court to make sure, as far as possible, that adoption shall not be granted over parental objection unless that course clearly is justified. The welfare and best interests of the child must be weighed with great care against every just claim of an objecting parent. Id. at 284 , 157 A.2d 273 ; accord Adoption/Guardianship No. 10941, 335 Md. at 113 , 642 A.2d 201 ; Adoption/Guardianship No. 94339058/CAD, 120 Md.App. at 97-98 , 706 A.2d 144 ; Adoption/Guardianship No. 95195062/CAD, 116 Md.App. at 454 , 696 A.2d 1102 . ⁴¹² In a termination case, the burden falls upon the State to prove, by clear and convincing evidence, that the termination of a parent’s rights serves the best interest of the child. .See Adoption/Guardianship 95195062/CAD, 116 Md. App. at 454 , 696 A.2d 1102 . Indeed, “the best interest of the child is paramount.” Adoption/Guardianship No. 94339058/ CAD, 120 Md.App. at 98 , 706 A.2d 144 ; see Adoption/Guardianship No. 10941, 335 Md. at 112 , 642 A.2d 201 ; Adoption/Guardianship No. J970013, 128 Md.App. at 247 , 737 A.2d 604 ; Adoption/Guardianship No. 95195062/CAD, 116 Md.App. at 453 , 696 A.2d 1102 .

F.L. § 5-313(a) provides, in part: A court may grant a decree of adoption or a decree of guardianship, without the consent of a natural parent ... if the court finds by clear and convincing evidence that it is in the best interest of the child to terminate the natural parent’s rights as to the child and that: (2) in a prior juvenile proceeding, the child has been adjudicated to be a child in need of assistance, a neglected ’ child, an abused child, or a dependent child[.] In cases such as this one, the trial court must also consider each of the factors enumerated in F.L. § 5-313(e) and (d). See In re Adoption/Guardianship No. T96318005, 132 Md. App. 299 , 752 A.2d 646 (2000); In re Adoption/Guardianship No. 95195062/CAD, 116 Md.App. at 457 , 696 A.2d 1102 ; In re Adoption No. 09598, 77 Md.App. 511, 518 , 551 A.2d 143 (1989); see also In re Adoption/Guardianship No. T97036005, 358 Md. 1, 22-24 , 746 A.2d 379 (2000). F.L. § 5-313(c) provides: In determining whether it is in the best interest of the child to terminate a natural parent’s rights as to the child in any case, except the case of an abandoned child, the court shall give: (1) primary consideration to the safety and health of the child; and ⁴¹³ (2) consideration to: (i) the timeliness, nature, and extent of the services offered by the child placement agency to facilitate reunion of the child with the natural parent; (ii) any social service agreement between the natural parent and the child placement agency, and the extent to which all parties have fulfilled their obligations under the agreement; (in) the child’s feelings toward and emotional ties with the child’s natural parents, the child’s siblings, and any other individuals who may significantly affect the child’s best interest; (iv) the child’s adjustment to home, school, and community; (v) the result of the effort the natural parent has made to adjust the natural parent’s circumstances, conduct, or conditions to make it in the best interest of the child to be returned to the natural parent’s home, including: 1. the extent to which the natural parent has maintained regular contact with the child under a plan to reunite the child with the natural parent, but the court may not give significant weight to any incidental visit, communication, or contribution; 2. if the natural parent is financially able, the payment of a reasonable part of the child’s substitute physical care and maintenance; 3. the maintenance of regular communication by the natural parent with the custodian of the child; and 4. whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the natural parent within an ascertainable time, not exceeding 18 months from the time of placement, but the court may not consider whether the maintenance of the parent-child relationship may serve as an inducement for the natural parent’s rehabilitation; and (vi) all services offered to the natural parent before the placement of the child, whether offered by the agency to ⁴¹⁴ which the child is committed or by other agencies or professionals. F.L. § 5-313(d), which governs considerations following a CINA adjudication, states: (1) In determining whether it is in the best interest of the child to terminate a natural parent’s rights as to the child in a case involving a child who has been adjudicated to be a child in need of assistance, a neglected child, an abused child, or a dependent child, the court shall consider the factors in subsection (c) of this section and whether any of the following continuing or serious conditions or acts exist: (i) the natural parent has a disability that renders the natural parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for long periods of time; (ii) the natural parent has committed acts of abuse or neglect toward any child in the family; (iii) the natural parent has failed repeatedly to give the child adequate food, clothing, shelter, and education or any other care or control necessary for the child’s physical, mental, or emotional health, even though the natural parent is physically and financially able; (iv) 1. the child was bom: A addicted to or dependent on cocaine, heroin, or a derivative thereof; or B. with a significant presence of cocaine, heroin, or a derivative thereof in the child’s blood as evidenced by toxicology or other appropriate tests; and 2. the natural parent refuses admission into a drag treatment program or failed to fully participate in a drag treatment program; or (v) the natural parent has: 1. subjected the child to: A. torture, chronic abuse, or. sexual abuse; or B. chronic and life-threatening neglect; ⁴¹⁵ 2. been convicted [of a statutorily defined crime of violence against certain persons]; or C. of aiding or abetting, conspiring, or soliciting to commit [certain crimes]; or 3. involuntarily lost parental rights of a sibling of the child.

(2) If a natural parent does not provide specified medical treatment for a child because the natural parent is legitimately practicing religious beliefs, that reason alone does not make the natural parent a negligent parent. (3) The court shall consider the evidence under paragraph (1)0) through (iv) of this subsection regarding continuing or serious conditions or acts and may waive the child placement agency’s obligations under subsection (c) of this section if the court, after appropriate evaluation of efforts made and services rendered, finds by clear and convincing evidence that the waiver of those obligations is in the best interest of the child. (4) The court shall waive the child placement agency’s obligations under subsection (c) of this section if the court finds that one of the circumstances or acts enumerated in paragraph (l)(v) of this subsection exists. (5) If the court finds that any of the circumstances or acts enumerated in paragraph (l)(v) of this subsection exists, the court shall make a specific finding, based on facts in the record, as to whether or not the return of the child to the custody of the natural parent poses an unacceptable risk to the future safety of the child.

Our role in the appellate review of termination cases was explained in Adoption No. 09598, 77 Md.App. at 518 , 551 A.2d 143 . There, we said: [O]ur function ... is not to determine whether, on the evidence, we might have reached a different conclusion. Rather, it is to decide only whether there was sufficient evidence—by a dear and convincing standard—to support the chancellor’s determination that it would be in the best interest of [the child] to terminate the parental rights of ⁴¹⁶ [the] natural [parent]. In making this decision, we must assume the truth of all the evidence, and of all the favorable inferences fairly deducible therefrom, tending to support the factual conclusion of the trial court.

Thus, on appeal, “we must ascertain whether the trial court considered the statutory criteria, whether its factual determinations were clearly erroneous, whether the court properly applied the law, and whether it abused its discretion in making its determination.” Adoption/Guardianship No. 94339058/ CAD, 120 Md.App. at 101 , 706 A.2d 144 ; see In re Adoption/Guardianship No. 3598, 347 Md. 295, 311 , 701 A.2d 110 (1997). Before reviewing the court’s findings, we shall first address two preliminary concerns raised by appellant in her brief. B. Appellant argues that the evidence was insufficient to support the court’s decision to terminate her parental rights. Although not raised by appellant as a separate issue, she bases her position, in part, on her claim that the court erred by admitting the Department’s records.

Appellant thus urges us to “decline to entertain considering any part of [the Department’s] purported ‘business record.’ ” Our answer to that is rather simple: we will not consider the Department’s record in deciding this appeal, because that record was not included either in the record extract or in the record itself. In any event, appellant’s position is without merit. We explain. As we noted, the circuit court sustained the objection of the mother’s attorney as to the admission of those parts of the Department’s record that contained hearsay.

Moreover,, prior to rendering its oral opinion in this case, the court said: “[H]aving considered the evidence that was presented by way of proffer and the Court’s very, very cursory review of the record, the Court makes the following findings.” Appellant maintains that it is nearly impossible to discern what parts of the Department’s record the court may have considered. Nothing in the court’s opinion suggests that it ⁴¹⁷ relied on any evidence other than what was properly presented at the hearing. Moreover, appellant has not referred us to any item contained in that record that might have prejudiced her position. Appellant’s second concern appears in a footnote of her brief.

There, she points out that F.L. § 5-313 was amended between