In Re Adoption/Guardianship of Cross H.

MATRICCIANI, J. Appellants Virginia H. and Aaron R. appeal the judgment of the Circuit Court for Howard County terminating their parental rights in their biological son, Cross H., and granting guardianship of the minor child to the Department of Social Services. Appellants present three questions on appeal: I. Did the circuit court err in terminating appellants’ parental rights when an appeal of the underlying ¹⁴⁵ CINA order changing the minor child’s permanency plan to adoption was pending?

II

Did the circuit court err in refusing to consider placement of the minor child with his paternal grandmother?

III

Did the circuit court err in terminating appellants’ parental rights? For the reasons set forth below, we shall answer these questions in the negative, and we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL HISTORY Cross H., a minor child, was born to appellants Virginia H. and Aaron R. on August 28, 2007 at Johns Hopkins Hospital. 1 He was born after only thirty one weeks of gestation, and he was exposed prenatally to HIV and hepatitis-C. 2 Because of Virginia H.’s history of drug and alcohol use, there is a high likelihood that pre-natal exposure to drugs and alcohol also occurred. At birth, Cross H. had damage to his retinas, difficulty breathing, heart arrhythmias, and poor muscle control.

He was anemic, and weighed less than four pounds. As a result, Cross H. remained in the Johns Hopkins pediatric intensive care unit until September 10, 2007. He was then transferred to the Mt. Washington Pediatric Hospital, where he remained until October 3, 2007.

Appellee Virginia H. has multiple psychiatric conditions for which she has been hospitalized on several occasions. Virginia H. was admitted to the psychiatric unit of Johns Hopkins Hospital shortly after Cross H.’s birth, but while he was still ¹⁴⁶ in the neonatal intensive care unit, appellee left treatment due to a “difference in opinion” about the proper course of her medical and psychiatric treatment. On October 3, 2007, the day of his release from Mt. Washington Hospital, Cross H. was adjudicated a Child In Need of Assistance (“CIÑA”). 3 He was committed to the Department of Social Services (“the Department”), and was placed in foster care with Mr. and Mrs. B. 4 Cross H. remained in foster care with Mr. and Mrs. B’s family for approximately seven months.

In the spring of 2008, Mr. and Mrs. B. experienced a medical emergency which made it impossible for them to continue caring for Cross H. Therefore, Cross H. was placed with Christopher D. and David A., who had taken training courses to become licensed foster care providers. Cross has been living with Christopher D. and David A. (hereinafter “the foster family”) since that time. Virginia H. was incarcerated for a period of time after Cross H.’s birth, and upon her release, she entered Fayette Health and Rehabilitation Center, where she remained from June 18, 2008 until May 7, 2009.

She then went to live with her husband, whom she met and married during her time at the rehabilitation facility. As of September 2010, Ms. H. resided in a two-bedroom house in Baltimore City with her husband and her mother. Ms. H. has four children, none of whom are in her custody. ¹⁴⁷ Appellant Aaron R. was determined to be Cross’s biological father in January of 2009. Once paternity was confirmed, Cross H.’s permanency plan was changed to reflect the goal of reunification with his father.

Although the father did complete a parenting course, he did not follow-through with the Department’s request for completion of an inpatient drug treatment program until court-ordered to do so, and he did not complete the requested psychological examination. In March of 2009, Mr. R. requested that Cross H. be placed with his grandmother, Barbara J., until he could “get himself together.” Aaron R. acknowledged that he was not a viable placement option for Cross H. at that time, and that it was unlikely that he would be able to care for the child in the near future. 5 As of August of 2010, Aaron R. was still living with his mother — the paternal grandmother. On April 29, 2009, based on Virginia H. and Aaron R.’s requests, the circuit court ordered that Cross’s permanency plan be explored for placement with the paternal grandmother, and ordered the Department to conduct a home study and a bonding study. These studies resulted in negative findings regarding placement with Barbara J. Based on these findings, on October 28, 2009, the juvenile master recommended that Cross’s permanency plan revert to non-relative adoption.

Appellant Virginia H. filed exceptions to the permanency plan, and the court conducted an exceptions hearing on December 7 and 16, 2009 and on February 17 and 18, 2010. At the conclusion of the hearing, the circuit court delivered an extensive oral opinion, explaining the court’s conclusion that neither Ms. H., nor Mr. R. were available as current placements for Cross H. Accordingly, the juvenile court entered an order on March 26, 2010, in which it dismissed the mother’s ¹⁴⁸ exceptions, and ordered a permanency plan of non-relative adoption, affirming the master’s recommendations. The mother timely noted an appeal of the CINA case with our Court. While the CINA appeal was pending, in compliance with the circuit court’s March 26th order, the Department filed a petition to terminate parental rights (“TPR petition”).

On June 24, 2010, Barbara J. filed a motion to intervene, which the circuit court denied. On August 10, 2010, Aaron R. filed a motion to stay the TPR proceedings in the juvenile court until the appeal of the CINA order had been resolved. The juvenile court denied the motion to stay and proceeded with the TPR hearing, which spanned a period of five days from September 28, 2010 until October 4, 2010. At the conclusion of the hearing, the court granted guardianship of Cross H. to the Department, and terminated the parental rights of Virginia H. and Aaron R. Along with its appellate brief in the CINA appeal, the Department also filed a motion to dismiss the CINA appeal as moot, arguing that the court’s October 4, 2010 order terminating appellants’ parental rights effectively ended the circuit court’s jurisdiction in the CINA case.

On January 11, 2011, we denied the motion to dismiss, and we affirmed the juvenile court’s CINA decision, including the change in permanency plan. 6 On February 9, 2011, appellant filed a petition for writ of certiorari to the Court of Appeals in the CINA case. The petition was denied on April 25, 2011. On October 22, 2010, Virginia H. noted her appeal of the TPR case, and on November 2, 2010, Aaron R. did the same. Additional facts will be provided as necessary.

DISCUSSION I. Appellants contend that the circuit court erred in proceeding with the termination of parental rights hearing ¹⁴⁹ when the appeal of the CINA order was pending. On April 25, 2011, however, while the present TPR appeal was pending before this Court, the Court of Appeals denied appellants’ petition for a writ of certiorari in the CINA case. 7 Therefore, appellants’ argument is moot. Nonetheless, appellants urge us to decide this issue, arguing that it involves an important matter of public concern that may frequently recur. We note that a different twist on the present procedural argument was addressed in our opinion in the CINA proceedings.

In re: Cross H., Unreported Opinion, No. 0440, September Term, 2010. In order to clarify our comments there and to provide some guidance on the interplay between CINA proceedings and TPR cases, we will discuss briefly the point raised by appellants here. Appellants cite In re: Emileigh F., 355 Md. 198 , 733 A.2d 1103 (1999), in which the Court of Appeals held that the circuit court erred in closing a CINA case while an appeal was pending. Appellants argue that the present case is analogous to Emileigh F. and that we should vacate the circuit court’s grant of the TPR petition.

We disagree. The situation in Emileigh F. was notably different from the facts of the present case. There, the mother appealed her daughter’s adjudication as a CINA. We affirmed, and the Court of Appeals granted certiorari.

While the case was pending before the Court of Appeals, the juvenile court granted the Department’s motion for an order of recision and termination of juvenile court jurisdiction, effectively closing the CINA case. The Court of Appeals held that this action was inconsistent with the pending appeal, and vacated the judgment closing the CINA proceedings. In the present case, on the other hand, when the TPR case was heard, the CINA appeal was pending before this Court. No action was taken to close the CINA case proceedings. ¹⁵⁰ While a CINA adjudication must precede a TPR determination, it is a separate legal proceeding.

Moreover, the changing of the permanency plan from reunification, or adoption by a relative, to adoption by a non-relative, is not required before the Department can file a TPR petition. Thus, we see no error in the actions of the circuit court in the present case. A different panel of this Court was confronted with a motion to dismiss the appeal of the CINA case earlier in these proceedings because the State believed that the juvenile court’s order terminating appellants’ parental rights rendered that appeal moot. Judge Wright, writing for the Court there, also distinguished the present case’s procedural posture from that in Emileigh F., but noted that, by operation of statute, the TPR order “has the legal effect of extinguishing the CINA case,” citing FL 5-325(a)(l) and (4) and FL 5-324(b).

While denying the motion to dismiss, we went on to address the CINA appeal issues, because a legal error in those proceedings could have infected the TPR determination. We were also concerned about violating the admonition in Emileigh F. against authorizing juvenile courts to “act to frustrate the actions of an appellate court.” 355 Md. at 202 , 783 A.2d 1103 . Thus, in any given juvenile case, the CINA determinations and the TPR adjudication are inexorably linked. Most often, a change in permanency plan away from reunification with the child’s parents sets the stage for a TPR petition.

Also, as noted in Judge Wright’s earlier opinion in this case, our statutory scheme recognizes that an order of guardianship terminates a CINA case. But Emileigh F. teaches us that an appellant’s right to challenge those very CINA determinations cannot be defeated by the juvenile court’s actions in the CINA proceedings themselves. 8 Appellants’ objection to those rul ¹⁵¹ ings remained alive here until their final appellate entitlement was exhausted by the Court of Appeals’ denial of their petition for a writ of certiorari. Conversely, there is no prohibition against the initiation of TPR proceedings during the pendency of a CINA appeal. As indicated above, while related, the actions are independent of one another.

CINA proceedings are governed by CJP 3-801, et. seq. and TPR proceedings are governed by FL 5-313 et seq. Therefore, despite the fact that appellants’ claim of error here was mooted by the action of the Court of Appeals, we are unpersuaded that the pendency of the CINA appeal was a bar to the TPR case proceeding in the circuit court.

II

Appellants next contend that the circuit court erred in “refusing to consider ordering custody of Cross H. to his grandmother.” This argument is based on the court’s denial of the motion to intervene in the TPR proceedings filed by Barbara J., Cross H.’s paternal grandmother, and its rulings at the TPR hearing limiting the admission of evidence regarding Barbara J.’s suitability as a placement for Cross H. The juvenile court did, however, consider placement of Cross H. with his paternal grandmother. In April of 2009, acting in accordance with Virginia H. and Aaron R.’s wishes, the court ordered that Cross H.’s permanency plan be explored for placement with Barbara J. To this end, the Department conducted a home study and a bonding study to determine whether Ms. J or either of Cross H.’s biological parents would be viable placement options. These studies resulted in negative findings regarding placement with the paternal grandmother. Madeleine Krebs, the Department’s social worker, testified at the TPR hearing that she observed the interaction between Cross H. and Ms. J. on several occasions, and that she did not see evidence of significant bonding or any sign of attachment.

Ms. Krebs also testified that she considered the social and financial situation of Ms. J. (as well as the ¹⁵² birth parents), and she opined that Ms. J. did not represent a long term resource for Cross H. 9 These considerations were explicitly referenced by the circuit court in its oral ruling. 10 Moreover, we believe the circuit court was correct in noting that the appropriate focus of the TPR hearing was not the potential suitability of the paternal grandmother as a placement for Cross H. — as this was an issue properly addressed in the CIÑA case — but rather, the fitness of Virginia H. and Aaron R. as parents.

III

Appellants’ final contention is that the juvenile court erred in terminating their parental rights, citing the “fundamental interest” of natural parents in the “care, custody, and management” of their children, and