In Re Adoption/Guardianship of J.T.

Panel: Kehoe, Leahy, Sally D. Adkins (Senior Judge, Specially Assigned), JJ. Adkins, Sally D., J. ⁴⁶ Although mental illness may play a role in many termination of parental rights cases, it is uncommon in an appellate court that the illness presents itself as the centerpiece issue-without the concomitant issues of child abuse or abandonment. In this case, we are called upon to address a parent's mental illness, the best interests of a child, and a mother's ability to parent given her progress made through therapy and medication. These issues are all the more essential and poignant given the foster parents' sudden withdrawal from adoption plans.

FACTUAL OVERVIEW AND PROCEDURAL POSTURE Legal Proceedings Appellant T.N. ("Mother" or "T.N.") gave birth to J.T., a healthy daughter, on April 1, 2016. On May 26, 2016, after petition by the Department of Social Services for Montgomery County, Maryland ("the Department" or "DSS"), J.T. was determined by the juvenile court to be a child in need of assistance ("CINA") and committed to the care and custody of the Department. DSS alleged that Mother was unfit to parent J.T. It also asserted that the parental rights of J.M., the child's father ⁷¹² ("Father"), should be terminated due to exceptional circumstances.

In August 2018, following the CINA proceedings, a termination of parental rights ("TPR") trial was held (Case No. 2811). The Circuit Court for Montgomery County terminated Mother's and Father's parental rights pursuant to its November 2018 Order. Both Mother and Father appeal from this Order. In a parallel proceeding, the juvenile court ordered that Mother's visitation with J.T. be reduced.

Mother appealed the change in the visitation schedule to this Court (Case No. 3098), and the two appeals have been consolidated, without objection. ⁴⁷ Questions Presented by Mother 1. Did the juvenile court err in terminating Appellant T.N.'s parental rights to J.T.? 2. Did the juvenile court err in reducing visitation? 3. Did the juvenile court err in terminating Appellant J.M.'s parental rights to J.T.?

As to the first and third questions, we hold that the juvenile court erred in terminating the rights of Mother and Father, and we reverse and remand to the juvenile court for further proceedings. Because we remand to the juvenile court to reconsider the parental rights of both Mother and Father, and J.T.'s best interests, we also direct that Mother's visitation schedule return to two times per week, the frequency Mother earlier enjoyed before it was reduced at the request of DSS (to correlate with the expected termination). In this appeal we focus on the arguments made by Mother and the Department's response thereto. Father, who lives in Cameroon, also contests termination of his parental rights.

He challenges the juvenile court's exercise of personal jurisdiction over him and argues, inter alia , that exceptional circumstances were not shown, and the court should not have drawn a negative inference from his failure to testify. Throughout most of this process, Father has supported Mother's right to the care and custody of J.T., with the understanding that Mother and child would live in the United States. While he, at one point-fearing Mother's parental rights would be terminated-asserted his own right to custody of J.T. in Cameroon, Father's final word, expressed by counsel at oral argument, was that he preferred that Mother retain her parental rights and eventually be given custody of J.T. Because of Father's deferral to Mother and her parental rights, and because ultimately, we reverse the juvenile court and ask that court to reconsider the determination of both parents' rights, we do not address Father's arguments on his own behalf. On remand, however, Father is still free to protect his own parental rights, or to argue on behalf of Mother. ⁴⁸ Facts 1 and Procedures In April 2016, shortly after Mother gave birth to J.T., Mother experienced a mental health crisis while still in the hospital and showed signs of postpartum psychosis.

Hospital staff removed J.T. from Mother's care, and Mother was transferred to a psychiatric unit. J.T. was placed in kinship care with a licensed foster parent who was a friend of Mother's. Father has been unable to secure a U.S. visa to travel to this country. While both parents resided in Cameroon, they agreed that Mother, a college graduate who had a Green Card allowing her to work and live in the United States, would travel to this county so that J.T. would be born here.

In September 2016, Father sent an email to the Department ⁷¹³ saying that he wanted J.T. reunified with Mother. Mother's bout with postpartum psychosis was not the first time she had suffered serious mental health problems. She was hospitalized in 2013 and 2015 and attempted suicide in 2014. According to a psychological evaluation, Mother suffers from post-traumatic stress disorder and recurrent major depressive disorder with psychotic features.

During depressive episodes, Mother experiences insomnia, psychomotor agitation, fatigue, and mood instability. During these episodes she sometimes has auditory hallucinations, wherein she hears voices telling her she is going to die. Major stressors in her life may trigger a depressive episode. At one low point in May 2016, Mother is reported to have stated that "the voices have taken over her body and she is concerned 'that they might hurt me.' " According to social workers and psychologists who have dealt with Mother, she can successfully manage her illness with therapy and medication.

They also cautioned that her symptoms will return if medication is interrupted. The psychologist who evaluated Mother in June and July of 2016 recommended that she receive "case management support to ⁴⁹ assist her in accessing resources, including but not limited to," subsidized and transitional housing, where her daughter could reside with her. During the months leading up to the TPR hearing, Mother lived in a transitional housing facility operated by Catholic Charities, known as "Dorothy Day." Mother stayed in regular contact with the Department, and regularly attended scheduled visits with J.T. Mother's social worker at Dorothy Day has described her as "extremely reliable" and said that "[she hadn't] had any problems with [her] in her reliability and her punctuality and her completing tasks ... and her communication ...." Her first DSS social worker, Jillian Kelly ("Kelly"), testified that "[w]hen [Mother] is on the right medication and being properly monitored she can do well." Her second DSS social worker, Marwan Castellani ("Castellani"), testified that she was "very cooperative" with the Department, reliably participated in visits, and had positive interactions with J.T. Castellani concurred that, with housing and mental health support, including therapy and medication, Mother functioned well in the community. The psychologist who conducted Mother's mental health evaluation testified that she was "completely cooperative" and "insightful" about her mental health issues.

The Department facilitated Mother's visits with J.T. while J.T. was in foster care. When healthy, Mother had positive, affectionate visits with J.T. They grew an increasingly strong bond, but they would need to reestablish their bond after periods when Mother was hospitalized and visits were put on hold. Visits changed from supervised to unsupervised in September 2016 and occurred once each week for one hour. The psychologist who evaluated Mother testified that her "face lit up" when talking about J.T., and she was "eager to share photos." Mother "expressed a realistic understanding of what caring for a baby full time entails" and was "cognizant of the responsibilities inherent in that." Periodic review hearings are required for all CINA children.

See Md. Code Ann. (2005, 2012 Repl. Vol.), § 5-326 of the Family Law Article ("FL"). The Department prepares reports ⁵⁰ for the juvenile court shortly before every review hearing, and these reports are admitted into evidence at the merits hearing. At the September 14, 2016 review hearing, the Department reported that Mother had "shown significant progress in maintaining her mental health and working toward reunification ⁷¹⁴ with her daughter.

She had attended every visit with [J.T.] and consistently demonstrates skills learned from parenting education." It also expressed that mother and daughter were developing a strong bond, and that the Department wished for Mother to be able to spend more time with J.T., progressing to overnight visits. It reported that Mother had not needed hospitalization since May 2, 2016 and had not reported any psychotic symptoms to the Department or her therapist. Around December 2016, Mother became pregnant again and this appeared to affect her mental health adversely. Kelly, Mother's initial DSS social worker, filed a February 22, 2017 report stating that Mother told her that she had been advised to discontinue all medications due to her pregnancy.

Kelly estimated that she had stopped taking her medication in November or December 2016, around the time Mother suffered a panic attack that resulted in her hospitalization. While Mother was residing with a friend in Southeast Washington, District of Columbia, the Department arranged for J.T. to stay with Mother for a few days over Christmas. Arrangements were made for the Department to pick J.T. up on December 27, 2016 and take J.T. back to her foster home. Mother was to meet the Department representative in Silver Spring, Maryland to facilitate this.

But, on that day, Mother called the Department and asked for J.T. to be picked up at the apartment, as Mother was not feeling well and did not want to travel to Silver Spring. When the social worker picked up J.T., Mother was acting oddly, with symptoms of a panic attack. Two days later, on December 29, 2016, police observed Mother screaming and dancing in the road. An officer found a DSS business card in Mother's purse and called the Department. ⁵¹ Mother was taken to the emergency room and was stabilized and released after a 48-hour stay.

She then went to Progress Place, a shelter in Silver Spring, seeking a place to stay. While there, she became upset at having to sleep in the same room with other women, was loud, aggressive, and argued with staff members and even attempted to spit on a staff member. Police were called, and she was banned from Progress Place for a year. During early January 2017, Mother was brought to Washington Adventist Hospital by police and admitted.

After her admission, hospital staff described her as being agitated and fixated on her scheduled visit with J.T. Mother repeatedly called the Department asking that a social worker either pick her up from the hospital or bring J.T. to her. Her hospital-assigned counselor said that Mother was refusing to take medication. 2 Mother remained at Washington Adventist Hospital until January 13, 2017, gradually responding to treatment. 3 She was released, after taking her medication, with a diagnosis of Bipolar I with psychotic features. Because the Montgomery County Crisis Center did not have any open shelter beds, social workers arranged for her to go to Harriet Tubman Emergency Women's Shelter, but the security guard refused her entry, despite her begging to be admitted. She then was admitted to the psychiatric unit of Howard University Hospital, where she remained from January 17-24, 2017.

At about this time, Mother met with the Department and reported that she had ⁷¹⁵ stopped taking her Seroquel, a prescribed medication, as it was making her sleepy and she did not want to be tired or inattentive when caring for J.T. during her extended, unsupervised, and overnight visits. She also told the Department that she felt overwhelmed with her overall situation. She identified the father of her unborn (second) child and explained that when she informed him of the pregnancy, ⁵² he denied being the father. This was greatly upsetting to her, she explained, because he had promised to marry her and take care of her and the child.

Mother also informed the Department that she found a different shelter, Winter Haven Emergency Shelter in Silver Spring, and she intended to resume her job as a home health aide, while continuing to see her therapist and psychiatrist. The social worker observed Mother to be more sluggish than usual around this time, which Mother owed to her pregnancy. During this same period, Mother had supervised visitation with J.T. on January 25, February 1, and February 8, 2017. Another depressive episode occurred around mid-February 2017.

The Director of the Winter Haven Emergency Shelter, Dr. Donna Robinson, stated that she became concerned because Mother appeared depressed and anxious, and exhibited involuntary motions causing her to hit herself. The Director transported Mother to Holy Cross Hospital, but when Robinson tried to visit with her two days later, she was informed that Mother was not in the hospital. The Department learned that on February 11, 2017, Mother was transferred to Brook Lane, a mental health hospital. At this point, the permanency plan for J.T. was reunification with her mother, and the Department, noting that Mother's decompensation was very recent, did not ask to change the plan.

Still, DSS planned to return to juvenile court in three months to possibly revise the permanency plan to "adoption by a relative or a non-relative." The Department also advised the court, in its above-discussed report for the March 3, 2017 Permanency Plan Hearing, that it was important to note that [J.T.] [had] been with the same foster family since May 26, 2016 and is attached to them. Given the significance of attachment and bonding during infancy, the Department and Court also need to consider [J.T.'s] attachment to her foster parents in considering a permanent resource for her. Castellani, her second DSS social worker, formally assigned to J.T.'s case on April 28, 2018, also testified about the strength of her bond with her foster family. He opined that it was ⁵³ contrary to J.T.'s best interest to be removed from foster placement for any reason, including to be placed with a biological parent.

Castellani also said that, during the most recent two visits, J.T. did not cry upon leaving her foster parents to visit Mother. Our next snapshot of Mother is derived from the August 18, 2017 report by the Department to the juvenile court. After a week at Brook Lane, Mother was still exhibiting symptoms of anxiety and depression, and her pregnancy limited the medications she was able to take. In March 2017, Mother received electroconvulsive therapy at University of Maryland Medical Center and was discharged on March 23, 2017.

Her physician reported that, on discharge, Mother denied any auditory hallucinations or other psychotic symptoms, that she had improved mood and wider affective range, and was more responsive, including laughing and smiling. She had also "resolv[ed]" her suicidal ideations. She still, however, remained anxious and spoke very little. ⁷¹⁶ Mother then went to live in an assisted living facility in a residential rowhouse in Baltimore, where she received medication, monitoring, and assistance with meals, laundry, and other basic personal needs, by on-site staff. This residential program was operated by Chesapeake Connections, a mental health services provider.

Her case manager at this program reported that Mother was working "on strengthening her independent skills by encouraging and allowing her to complete medical appointments on her own, regularly taking public transportation on her own and shopping on her own." The psychiatric nurse practitioner reported that Mother was "in compliance with treatment and 'appears to be doing well psychiatrically and mentally' " and "her prognosis appears to be fairly good if she continues to comply with medications, participate in psychotherapy and receive supportive services." While she lived in this residential facility, Mother had visits with her daughter, and, after an initial period of uneasiness, J.T. settled down and visits became better, with mother and daughter engaging in reciprocal play, reading stories, and changing the child's diaper. ⁵⁴ In this same August 18, 2017 report, the Department stated that J.T. was doing well, and that Mother "is able to sustain brief periods of stability when she is taking her medication as prescribed, [but] any deviation from her medical regimen or exposure to stressors has shown to lead to a reoccurrence of her psychiatric symptoms." The Department expressed concern about the proposed plan by Chesapeake Connections to transfer Mother to a less restrictive environment when she gives birth, as she "currently is not demonstrating independent living skills in her current residence." DSS acknowledged that "[J.T.] does exhibit a connection to her mother" and they "engage in play and are affectionate with each other," but maintained that J.T. "cannot be safe in her care." The Department emphasized that J.T.'s "strongest attachment is to her foster parents," along with "the potential emotional, developmental, and educational harm to the child if moved from the current placement ...." After this hearing, the juvenile court changed the permanency plan from "Reunification" to "Adoption by a Non-Relative." The court found that "[J.T.'s] mother ... still struggle[d] with her mental health and stability. She [currently lived] in a treatment facility and [was] still unable to care for [J.T.]" The court also found she had "made minimal progress toward alleviating or mitigating the causes necessitating the commitment. While there was some progress, that has been followed by multiple additional hospitalizations." It also noted that J.T. was "safe in meeting her developmental milestones in her foster care placement." In its January 22, 2018 report to the juvenile court, the Department stated that Mother's second daughter ("G.N.") was born on September 3, 2017.

Mother and G.N. were moved into an apartment managed by a mental health care organization, Uplift Individuals in Christ. But, it explained, two weeks later, Mother was admitted to Johns Hopkins University Hospital on an emergency basis. In this report, the Department recommended that J.T. remain in foster care, with a permanency plan of adoption by a non-relative. DSS maintained ⁵⁵ that J.T. was in a loving and stable foster home and the foster parents were committed to adopting her.

Another review hearing was set for June 6, 2018. The Department's May 25 report for this hearing described the favorable conditions with J.T.'s foster family and characterized J.T. as a two-year-old toddler who is happy, well-adjusted and meeting ⁷¹⁷ developmental milestones. DSS reported that the foster family had embraced J.T. into their family and integrated her into their lives, including extended family, and that "the family is strongly committed." As to Mother, the Department had become pessimistic about her ability to parent. It reported that Mother's history with Child Welfare Services has demonstrated concerning behaviors related to her anxiety and hallucinations resulting in an inability to meet the needs of her daughter [J.T.], now two years old, as well as her daughter [G.N.], now 8 months old.

During this reporting period [Mother] has been able to maintain her stability by attending regular therapy and medication management. There have been no psychiatric hospitalizations. At the time of this report, Mother lived at Dorothy Day Transitional Housing Program through Catholic Charities in Rockville, Maryland. Despite its pessimistic view, the Department recounted a positive report from a social worker, saying that [Mother] is motivated to better herself, is currently medication compliant and will be working with DORS to explore obtaining part-time work.

The worker further noted that [Mother] would like to eventually be able to leave the "shelter system" and get her own apartment; the current program allows [Mother] to remain there for up to one year. [ 4 ] The Department acknowledged that "[Mother] was relatively consistent with her weekly visitation schedule" but sprinkled ⁵⁶ its report with small negative notes about Mother. For example, it noted that two-year old J.T. was distressed whenever the Department staff picked her up from her foster home to go anywhere, including to Mother's. Also, the Department reported that although Mother was very affectionate with J.T. during their visits, J.T. "appeared to tolerate her mother's affections" and usually played independently from her mother.

In contrast, it emphasized that "[J.T.'s] energy and engagement with her foster family indicates that she has a secure and trusting relationship with her current caregivers." The Department concluded that it was "currently not in [J.T.'s] best interest to return to the care of her mother as her mental health remains unpredictable; thus her ability to provide a safe and stable environment." 5 Sadly, the foster parents did not prove to be a stable long-term resource for J.T. Significantly, the court was notified after the close of the evidentiary hearings, that on October 1, 2018, the foster parents, with whom J.T. had lived for over two years and to whom she was attached, had asked the Department to remove J.T. from their home. The Department gave no reasons ⁷¹⁸ for the foster parents' decision. J.T. was placed with another foster family immediately. Despite this setback in the long-term plans for J.T.'s future, the Department did not change its recommendation and the ⁵⁷ Circuit Court followed the Department's lead.

In its November 15, 2018 Amended Final Order, the juvenile court terminated Mother's parental rights. The court found: [T]here is clear and convincing evidence that [Mother] is unfit and unable to care for [J.T.] [Mother] cannot provide a safe and stable home for [J.T.] and many of the issues that [Mother] present[ed] in 2016, prompting [J.T.]'s removal from her care, were still present at the trial. [Mother] has not stabilized her mental health, has not established an ability to care for [J.T.] in a safe environment, and has not secured appropriate housing. It also noted that Appellant has had difficulty obtaining "employment" and "a stable income." In its opinion, the juvenile court recited that J.T. had been removed from the home of her foster parents and placed in another foster home. It said nothing about how this impacted the best interests of J.T. This might be because the court was given insufficient information, as it stated that "[n]o supplemental information was provided to the Court on this factor." The juvenile court determined that the Department's efforts "satisfied what was required to provide reunification services to both parents." It concluded that after weighing the "statutory factors in light of the requisite legal presumption, [there was] clear and convincing evidence that it is in the best interest of this Child that the parental rights of Mother and Father be terminated." Mother and Father both appealed from this decision.

In a December 2018 motion to reconsider filed in the juvenile court, Mother stated that on October 1, after the TPR trial finished but before the court's decision was made, the Department informed all counsel that "[J.T.'s] foster parents have requested her removal from their home." Mother's trial counsel also proffered that Mother had continued to be stable on medication and recently found part-time employment. Recent reports from the Department, as well as letters from mental health professionals treating Mother, also indicate that she has been stable on medication and reliably participating in ⁵⁸ therapy. In her motion, Mother also objected to her decreased visitation from two hours per week to one hour per month. The motion to reconsider was denied on December 21, and Mother timely appealed both the December 6, 2018 closing order and the December 21, 2018 orders denying her motion for reconsideration.

DISCUSSION Mother readily concedes that she suffers from mental illness and that, "in the past, [her] illness made it difficult for her to maintain housing and employment." 6 But ⁷¹⁹ she maintains that "she has been compliant with therapy and medication, and mentally stable, for over a year." 7 Mother makes this assertion partly based on alleged facts occurring after the Amended Final Order on November 15, 2018. Because we are limited in our review to the record from which this appeal was taken, we consider only those facts presented to the juvenile court before the Amended Final Order. See Maryland Rule 8-131. ⁵⁹ The most recent snapshot of Mother presented to the court by DSS is found in its report to the court covering a period ending May 25, 2018. In its words, "[Mother] has been able to maintain her stability by attending regular therapy and medication management; there have been no psychiatric hospitalizations." It reported that she lives at Dorothy Day Transitional Housing Program, and that her social worker reported that Mother "is motivated to better herself, is currently medication compliant and will be working with DORS to explore part-time work." The testimony at trial revealed that by the time of the merits hearing, Mother had maintained residence at Dorothy Day since April 2018, while saving money to obtain permanent housing, had found employment and maintained it for about seven months, and continued to build a bond with J.T. Nicole Wooden ("Wooden"), a licensed social worker at Dorothy Day, testified that Mother would be able to secure independent housing and part-time employment. 8 Wooden also explained that although Dorothy Day tracks the residents' compliance in taking their prescribed medication, it does not force residents to do so.

According to Wooden, Mother was fully compliant. Wooden also testified that Mother is on a waiting list for a program that would allow her to be placed in an apartment and have housing for her daughter. It is uncertain when there would be an opening in this program. Wooden also stated that she "looked at [Mother's] acuity scale" 9 and determined, "through [their] conversation and through [Mother's] background," that "she would be able to procure housing and part time employment ...." Wooden considered that Mother has a bachelor's degree from a college in Cameroon and had worked as an administrative assistant and home healthcare worker.

As a centerpiece of her argument, Mother asserts her fundamental constitutional rights and points out the instability ⁶⁰ of foster care life. In her words, "Given that [J.T.] has been moved from foster home to foster home without any permanent adoptive placement on the horizon, and that Appellant has fought to maintain a bond with her child, termination of parental rights is not justified or in [J.T.'s] best interests." Mother also maintains that the court's "focus must be on the continued parental relationship, not custody." ⁷²⁰ In re Adoption/Guardianship of Rashawn H. , 402 Md. 477 , 499, 937 A.2d 177 (2007). She avers that "even if, as a custody matter, [she] cannot presently provide a home for J.T., that does not require that her legal rights to J.T. be permanently severed." She further draws upon the declaration of the Court of Appeals in Rashawn H. that "poverty, of itself, can never justify the termination of parental rights. The fundamental right of parents to raise their children is in no way dependent on their affluence and therefore is not diminished by their lack thereof." Id.

Mother highlights that she and Father are the only people seeking a permanent relationship with J.T., and, because the foster parents asked that J.T. be removed from their home, J.T. has no permanent relationship to rely on except her parents. The Department, responding, reminds us that the court's primary considerations in decisions to terminate parental rights are the health and safety of the child, which are to be considered along with the factors set forth in FL § 5-323(d), and that a reviewing court must be mindful that "[q]uestions within the discretion of the trial court are 'much better decided by the trial judges than by appellate courts.' " In re Yve S. , 373 Md. 551 , 583, 819 A.2d 1030 (2003) (citation omitted). DSS further maintains that the juvenile court made findings with respect to each of the statutory factors, "which include the