In Re Adoption/Guardianship of Darjal C.

WOODWARD, Judge. After a hearing that lasted several days, the Circuit Court for Baltimore City, sitting as a juvenile court, terminated the parental rights of Ms. Dan’elle H. (“Ms. H.”), appellant, as to Darjal C. and Khaylelle C. Ms. H. appealed to this Court from the judgment of the circuit court. In an unreported opinion, filed on September 5, 2008, we vacated the judgment and remanded the case to the trial court with instructions to determine whether the presumption in favor of Ms. H.’s right to the care and custody of her children was rebutted by “exceptional circumstances” or “unfitness” consistent with the teachings of In re Adoption/Guardianship of Rashawn H., 402 Md. 477 , 937 A.2d 177 (2007).

In re Adoption/Guardianship of Darjal C. and Khaylelle C., No. 1734, September Term, 2007, 181 Md.App. 740 (filed Sept. 5, 2008), slip op. at 14 (“Darjal I ”). On remand, after a hearing on March 24, 2009, the trial court reaffirmed its prior decision and terminated Ms. H.’s parental rights as to Darjal and Khaylelle. In this second appeal, Ms. H. presents one question for our review, which, in the words of her brief, is: Did the trial court err in terminating [Ms. H.’s] parental rights? Because we hold that Ms. H.’s counsel lacked standing to file the instant appeal on her behalf, we shall dismiss the appeal, sua sponte, pursuant to Maryland Rule 8-602(a).

BACKGROUND Ms. H., the mother of Darjal and Khaylelle, has given birth to eight children, none of whom are in Ms. H.’s custody. For the purposes of convenience, we adopt and incorporate sub ⁵¹¹ stantial portions of the factual and procedural history as set forth by Judge Daniel Long 1 in Darjal I. [Ms. H.’s] first child, Isaiah, was born in 1995 when Ms. H. was in foster care as a minor. Prior to this case, Ms. H. lost custody of Isaiah as well as her next three children, Destiny, Jaleel, and Isis. Her parental rights to Destiny, were involuntarily terminated on July 27, 2004, along with her rights to her third child, Jaleel, shortly thereafter.

Ms. H.’s fourth child, Isis, lived with Ms. H. for three-and-a-half years before Isis was placed with Isis’ paternal grandparents. Ms. H.’s fifth child, Darjal, was bom April 4, 2003. Darjal was removed from Ms. H.’s custody through a shelter care proceeding and was adjudicated CINA on August 31, 2005. Khaylelle, Ms. H.’s sixth child, was born October 19, 2004.

On March 1, 2005, Khaylelle was removed from Ms. H.’s custody and, following an adjudicatory hearing, was found to be CINA on April 18, 2006. Ms. H.’s youngest child, Aaron, was removed from Ms. H.’s custody shortly after birth and died in infancy a few months later. On May 27, 2004, the Baltimore City Department of Social Services (“Department”) entered into a service agreement with Ms. H. The agreement of May 27, 2004 indicates that Darjal came to the attention of the Department because of allegations that Darjal had a severe diaper rash and that Ms. H. consumed alcohol and smoked marijuana in her children’s presence, did not keep food in the house, and left dirty diapers lying around. Ms. H. was required under the May 27, 2004 service plan to enroll in drug treatment and attend parenting classes in 2004.

Ms. H. was not referred to any additional or specialized parenting programs. On April 21, 2005, the Department developed a new service plan for Ms. H. The plan required that Ms. H. follow through with any recommended recreational and employment counseling and therapy, keep a clean house ⁵¹² hold, cease having overnight visitors, complete a psychiatric evaluation, and maintain regular visitation with her children. In July 2005, pursuant to the plan, the Department referred Ms. H. to Hebron House, a provider offering counseling, psychiatric evaluation, and therapy services to children, adolescents, and young adults. After conducting psychiatric and adult psycho-social evaluations of Ms. H., Hebron House staff diagnosed Ms. H. with depression, bipolar disorder, and obesity.

Beginning in mid-2005, Ms. H. participated in therapy with Ms. Rosetta Johnson, a licensed social worker with Hebron House. During their meetings, Ms. Johnson discussed steps Ms. H. needed to take to regain custody of her children. Among those steps were cleaning and childproofing her house and reducing the traffic in and out of the house. Ms. Johnson also worked with Ms. H. on anger management issues and on finding Ms. H. affordable housing.

When Ms. Johnson began working with Ms. H. in 2005, Ms. H. lived in subsidized housing on Lennox Street in Baltimore. In May 2006, Ms. H. was evicted from her residence. Over the next seven to eight months, Ms. H. lived in various locations including with her birth mother in Carroll County. In January 2007, Ms. H. rented a three-bedroom row house on Booth Street in Baltimore City, where Ms. H. was living at the time of the Termination of Parental Rights (“TPR”) proceedings.

In late 2005, the Circuit Court for Baltimore City referred Ms. H. for an evaluation and bonding assessment by the Baltimore City Circuit Court Medical Services Division. Ms. H. initially declined the referral because of her experience with the Medical Services Division as a child and obtained an evaluation elsewhere. When Ms. H. returned with documentation of the evaluation, the Department refused to accept the documentation for lack of proper signatures of her evaluators. Ms. H. then agreed to be evaluated by the Medical Services Division. ⁵¹³ Dr. Harriet Miller, the Deputy Chief Psychologist for the Medical Services Division, conducted Ms. H.’s evaluation and bonding assessment over the course of two days in February and March of 2006.

During the evaluation, Dr. Miller took Ms. H.’s history, interviewed her, gave her a battery of psychological tests, and observed how she interacted with Khaylelle. Dr. Miller diagnosed Ms. H. with major depressive disorder, antisocial personality disorder, and borderline intellectual functioning. On April 7, 2006, Dr. Miller issued a report on Ms. H. Dr. Miller recommended that Ms. H. not have care and custody of Khaylelle and that any visitation between Ms. H. and Khaylelle be supervised. Dr. Miller also suggested Ms. H. participate in psychotherapy with a licensed clinical psychologist and continue to receive services through Chimes, an agency that provides services to individuals with developmental disabilities.

In her report, Dr. Miller concluded that Ms. H. “does not have the necessary controls to adequately parent a young child, and her volatility may constitute a threat to a child’s safety.” Dr. Miller further stated that Ms. H. “lacks the empathy necessary to provide effective nurturance and support to a child.” On July 13, 2005, to facilitate visitation between Ms. H. and her children, the Department arranged for one visit and then referred the matter to the Angel Foundation (“Foundation”), a supervised visitation center. The first visit at the Foundation took place on July 28, 2005. At that time, Ms. H. was given a schedule for the next six visits. Ms. H. missed one of the initial six visits.

Ms. H.’s next visit was on January 13, 2006, at which time she was given a schedule for visits from January 20, 2006, through March 20, 2006. On February 2, 2006, Ms. H. telephoned the Foundation to say that she could not attend the February and March visitation dates and to request that future visits be cancelled because Ms. H. was scheduled to give birth to her seventh child, Aaron, on February 14, 2006. In June 2006, visitation between Ms. H. and Khaylelle resumed at the Foundation. Between July 28, 2006, and ⁵¹⁴ September 8, 2006, Ms. H. attended two visits with Khaylelle and missed two visits.

Although the Foundation prepared a schedule of visits through June 2007, it closed the case on April 18, 2007, due to the large number of cancellations and the difficulty the Foundation had consoling Khaylelle when Ms. H. did not show up for a visit that she had previously confirmed. Between 2005 and 2007, Ms. H. missed 22 visits and attended 14 visits that were scheduled by the Foundation. After the Foundation stopped providing visitation for Ms. H. with her children, the court ordered the Department to make an alternative arrangement. To that end, the Department scheduled three visits for the summer of 2007.

Ms. H. attended the first and third visits, at which both Darjal and Khaylelle were present, but Ms. H. did not attend or call to cancel the second visit. According to the testimony of the caseworker who arranged the visits, Ms. H. played with Khaylelle, then age two, but did not interact with Darjal, then age four. Ms. H.’s history with Chimes began in 1997. Ms. Africa Dickerson became Ms. H.’s case manager at Chimes in 2001.

Ms. Dickerson and Ms. H. developed a series of “goals” which, over time, included housekeeping, transportation, budgeting, and paying bills. According to Ms. Dickerson, Chimes suspended services for Ms. H. on two occasions. In January 2007, Ms. H. moved into her current residence which did not have gas, electricity, or running water as a result of actions taken by the prior resident, and Ms. H. had difficulty getting utilities started. When M[ ]s.

H. refused to move out of the residence, Chimes services were suspended. Services were suspended again in May 2007 when Ms. H. refused to stay in the hospital for four to five weeks after she had back surgery. At the time of the TPR hearing, Ms. H. was only receiving minimal assistance from Chimes. Ms. H. began working with Ms. Rosalind Fletcher from Chimes in 2001 and was continuing to do so at the time of the TPR hearing.

Ms. Fletcher was familiar with Ms. H. as Ms. ⁵¹⁵ Fletcher’s sister was Ms. H.’s foster parent when Ms. H. was a teenager. Ms. Fletcher testified to her observations of Ms. H.’s interactions with Darjal and Khaylelle. Ms. Fletcher indicated that, based on her observations, Ms. H. did not have much interaction with Darjal. Ms. Fletcher also indicated that Ms. H. “wasn’t close to [Khaylelle] and [Khaylelle] just seemed to not like [Ms. H.].” Ms. Fletcher testified that she overheard Ms. H. say to Khaylelle, “I didn’t hold your sister a whole lot and I’m not going to hold you.” Ms. Fletcher expressed her concerns with the number of people who came to Ms. H.’s house, questioned Ms. H.’s decision-making ability, and questioned Ms. H.’s tendency to “mak[e] a decision to do something with her money that is not really the best thing.” On September 13, 2006, the Department filed a Petition for Guardianship with the Right to Consent to Adoption or Long Term Care Short of Adoption with respect to Darjal and Khaylelle....

After several days of testimony and after considering the relevant statutory factors in [§ 5 — 323(d) of the Maryland Code (1984, 2006 RepLVol.) of the Family Law Article (“FL”) ], the trial court determined that it was in the best interests of Darjal and Khaylelle to terminate the parental rights of Ms. H. (and Mr. C.). The trial court first considered Darjal’s case analyzing the § 5-323(d) factors. As to FL § 5-323(d)(l), the trial court noted that “[a] number of different services, evaluations, [and] therapy” were provided to Ms. H. by “Chimes, Hebron [House], and the Department.” The trial court placed special emphasis on the extent and nature of the services provided by Ms. Fletcher of Chimes to Ms. H. finding that Ms. Fletcher “has been consistent over the period of Darjal’s case.

She has been there. She has done everything that she could. She brought [Ms. H.] for groceries, medical appointments.” The trial court noted that Ms. Fletcher was with Ms. H. 25 hours per week acting as Ms. H.’s guardian angel. The trial court stated that “having [Ms. Fletcher] along side her, caring for ⁵¹⁶ her, taking her to things, has just put a great obligation on Ms. H. to cooperate.” The trial court “[didn’t] know how [a parent] get[s] services more than [what Ms. H. received through the Department]” commenting that the trial court had “never seen that before” and that “it just overwhelms [the court], what [Ms. Fletcher] has done for Ms. H.” The trial court also noted that Chimes provided transportation services and parenting coaching to Ms. H. The trial court found that the Department had done a “poor job” coordinating visitation between Ms. H. and Darjal and the Department had been “inconsistent” in its efforts because of difficulty in contacting Ms. H. by telephone.

The trial court stated that “DSS doesn’t get any gold star in this case” for fulfilling its obligations. The trial court indicated that the Department did not adequately document its efforts to make contact with Ms. H., but at the same time, the trial court acknowledged that Ms. H., at times, was “just plain unavailable.” As to FL § 5-323(d)(2), the trial court acknowledged that Ms. H. made progress regarding her anger management, found housing, and completed the parenting program. Nevertheless, the trial court also acknowledged that Ms. H. had “not been consistent” and “failed to do what she had to do” beyond accepting the service plan from the Department. The trial court placed weight on Ms. H.’s failure to be in contact with the Department and failure to attend scheduled visits with Darjal.

The trial court found that Ms. H. had not been in contact with Darjal’s caregiver and had not made any monetary contribution to Darjal’s support. The trial court acknowledged the “existence of a parental disability” with “the major psychological factor” for Ms. H. being her anger management. The trial court also acknowledged that Ms. H. suffers from bipolar disorder. The trial court, however, did not place much weight on these factors as the trial court felt the overwhelming support from Ms. Fletcher to Ms. H. made up for these challenges.

Finally, the trial court found that no additional services could be offered by the Department in the next 18 months that would make it ⁵¹⁷ possible for Darjal to be returned to Ms. H. as Ms. H. had already been provided with an overwhelming amount of assistance and services. As to FL § 5-323(d)(3) and (4), the trial court found that Ms. H. involuntarily lost parental rights of two of her other children. Also, the trial court found that Ms. H. has “no bond with Darjal.” In addition, the trial court found that Darjal is well adjusted to her foster home and to her placement in foster care. The trial court also considered the FL § 5-323(d) factors with respect to Khaylelle.

The trial court’s analysis of the FL § 5-323(d) factors was similar to the analysis for Darjal. As with Darjal, the trial court considered the services provided by the Department. The trial court indicated that “with the exception of one case,” the trial court had “never seen the services such as [were] provided by Ms. Fletcher [of Chimes] and Ms. Johnson [of Hebron House]” to Ms. H. on “such a really intimate ... [and] consistent basis.” The trial court gave great weight to the fact that Ms. H. missed 14 of the 36 visits scheduled with Khaylelle noting that Ms. H. should have made an effort to follow-up with the Department and reschedule the missed visits. The trial court also indicated that, although the “emotional ties with Khaylelle [were] better than with Darjal,” Khaylelle “didn’t seem to be bonded to [Ms. H.].” Darjal I, slip op. at 1-7, 9-13 (footnotes omitted).

Based on its analysis of the FL § 5-323(d) factors, the trial court granted the 7 Department’s petition for guardianship and terminated Ms. H.’s parental rights with respect to Darjal and Khaylelle. Darjal I Ms. H. appealed to this Court, presenting two questions, one of which is relevant to the instant appeal: “Did the trial court err in terminating [Ms. H.’s] parental rights?” Id. at 1. According to Ms. H., the evidence was insufficient to support the termination of her parental rights. Id. at 8-9.

Ms. H. ⁵¹⁸ additionally argued that, even if the evidence was sufficient, the court erred in failing to make the required finding under In re Rashawn H. that Ms. H. was either unfit or exceptional circumstances existed to justify the termination of her parental rights. Darjal I, slip op. at 9. This Court concluded that “[t]he trial court made no express finding of parental unfitness or the existence of an exceptional] circumstance that justified termination of Ms. H.’s parental rights.” Id. at 14. Accordingly, we vacated the judgment and remanded the case to the trial court with the following instructions: If the trial court, on remand, concludes that the FL § 5-323(d) factors weigh in favor of the Department and support “exceptional circumstances” or “unfitness,” then the trial court must expressly make such a finding and explain its reasoning consistent with the requirement of In re Rashawn H. We leave determination as to the necessity of further hearings or testimony to the discretion of the lower court.

Darjal I, slip op. at 14. Further Proceedings on Remand On remand, the trial court scheduled a pre-trial hearing for January 23, 2009. At the hearing, Ms. H.’s counsel advised the court that she could not locate Ms. H. and requested a court order authorizing the use of the Parent Locator Service of the circuit court to find Ms. H. The Department’s counsel also told the court that it had lost contact with Ms. H. In an order dated January 23, 2009, the trial court granted the request of Ms. H.’s counsel to employ the Parent Locator Service in an effort to locate Ms. H. Two months later, on March 24, 2009, the trial court held the hearing required by our mandate. Ms. H. was not present at the hearing.

Ms. H.’s counsel advised the court that she had attempted to get in touch with Ms. H. through “various avenues” to no avail. Ms. H.’s counsel then moved for a continuance, which motion was denied. The parties proceeded ⁵¹⁹ to present argument from their respective counsel, no additional evidence being permitted by the trial court. At the conclusion of the March 24, 2009 hearing, the trial court ruled: I’m not going to try to go through, again, the analysis of the evidence that I did previously.

My analysis of the evidence has already been, I think, reviewed by the Court of Special Appeals. And as I read the opinion, perhaps because it’s me reading something that would potentially criticize me, I didn’t see anything in there where they took up any — even a single issue of what I said and said, “but Judge McHugh didn’t look at this, or Judge McHugh was incorrect in making that finding.” So I’m[,] at this point, going to adopt everything that I said regarding the facts and regarding the factors. Because then, the analysis in Rashawn H., at 402 Md. 477 , at page 499, 937 A.2d 177 , it says, “The [FL] 5-323[d] factors, though couched as considerations in determining whether termination is in the child’s best interest, serve also as criteria for determining the kinds of exceptional circumstances that would suffice to rebut the presumption favoring continued parental relationships and justify termination of that relationship.” Well, those factors — what the Court is saying there is, the factors are still important. You can read this opinion as saying, throw out the factors, and I disagree with the way— the manner in which [Ms. H.’s counsel] said that — that the Rashawn determinations come first and factors are second.

Because, in fact, that was what the concurring opinion wanted to do, but that was not the majority’s opinion. So going back to this language, it seems to me that you look — we are directed by the Rashawn H. holding by that Court to look at the factors in [FL] 5-323[d] to see if, in there, there are any exceptional circumstances that come out from what the findings are there. And, certainly, I think those — those determinations I made with respect to ⁵²⁰ each of those factors show me that there are exceptional circumstances that do rebut the presumption of continuing a — in favor of continuing a parental relationship. And those exceptional circumstances do justify termination of that relationship.

As to unfitness, which is also mentioned in here, and I’m not going to try to find the precise quote. I think — I think that what we see in [Ms. H.] is really, clearly, unfitness because she could not even approach competency as a parent. She never got to the point where it would even be — I think reasonably considered that she would be able to take these children back. She, — [Ms. H.], unfortunately, can’t even manage her own life.

And she had a huge, huge amount of help, as I mentioned, and as the Court of Special Appeals seemed to recognize in the person who was with her all the time.... And she did have some way to make income, but she never translated that into the ability to take care of a child, to care for a child. And I think the facts also support a finding that the — that [Ms. H.] is unfit as a parent. And here’s a parent who has shown no real ability to take over mothering.

She’s unfit. These other circumstances prove that she’s not capable; prove that it’s not in the best interest of the children; and their safety and health would not be found in returning them to her or in continuing the parental relationship with her. So, for all those reasons, the Court will — I think I’ve already made a finding of termination of parental rights. I’m simply reiterating.

I’m reaffirming my prior decision and giving the reasons in light of Rashavm H. Ms. H.’s counsel noted an appeal on her behalf on April 1, 2009. Additional facts will be discussed in order to resolve the question presented. ⁵²¹ DISCUSSION Lack of Standing The trial court entered judgment on remand on March 24, 2009. Ms. H.’s trial counsel filed a notice of appeal on behalf of Ms. H. on April 1, 2009, eight days later and obviously well within the 30 days provided for by Rule 8-202(a). 2 The record indicated, however, that Ms. H. was not present at the March 24, 2009 hearing and could not be located, even though her counsel had been trying to find her for over two months. At the time of the filing of her brief on September 11, 2009, counsel for the minor children informed this Court in her brief that to her knowledge, Ms. H. still had not been located.

On October 23, 2009, this Court issued an order for Ms. H.’s counsel to show cause in writing why the instant appeal should not be dismissed, “because the appeal was apparently noted without the knowledge and authorization of the appellant.” On November 3, 2009, Ms. H.’s appellate counsel filed a response indicating that he “had contact with [Ms. H.] since the hearing on March 24, 2009.” The response did not affirmatively state that the current appeal was noted with the knowledge and express authorization of Ms. H. Indeed, at oral argument before this Court, Ms. H.’s counsel advised that he was unable to represent to this Court that express authorization had been obtained from Ms. H. prior to the noting of the appeal. 3 Ms. H.’s counsel also stated that he ⁵²² had a conversation with Ms. H. in the Summer of 2009 in which she stated that she wanted to continue to prosecute the instant appeal. In the case sub judice, we are confronted with the issue, not raised by the parties, of whether Ms. H.’s counsel had standing to note an appeal on behalf of Ms. H. when counsel did not have the express authorization to do so from Ms. H. In State Commission on Human Relations v. Anne Arundel County, 106 Md.App. 221, 233-36 , 664 A.2d 400 (1995), we addressed the issue of whether standing to appeal could be considered by an appellate