In re: Adoption of K'amora K.

NAZARIAN, J. The Circuit Court for Baltimore City terminated Keisha K.’s (“Mother”) parental rights vis-a-vis her daughter, K’Amora, via a rarely used analytical path: the court found by clear and convincing evidence that “exceptional circumstances” justified the termination of Mother’s parental rights and that termination served K’Amora’s best interests, without deciding ²⁸⁹ whether or not Mother was unfit to serve as her parent. After a hearing (the “TPR Hearing”), the court grounded its finding of exceptional circumstances in: (1) Mother’s refusal to allow physicians to administer medication to K’Amora after she was born exposed to human immunodeficiency virus (“HIV”); (2) nearly two years of comprehensive but unsuccessful efforts by the Baltimore City Department of Social Services (“DSS”) to involve Mother in K’Amora’s life and assess Mother’s ability to parent her; (3) Mother’s historical inability to provide a safe environment for her other children; and (4) K’Amora’s positive and healthy experience with her foster family. Mother challenges the termination decision and we affirm. I. BACKGROUND K’Amora was born on February 16, 2012 and, as the testimony at the TPR Hearing revealed, needed help immediately.

As social worker Catherine Miller testified, right after K’Amora’s birth Mother—who was HIV-positive and had a “high HTV viral load” at the time—refused HIV medication for herself and for K’Amora, even though doctors advised her that K’Amora’s risk of contracting HIV from in útero exposure would fall “almost down to zero” with treatment. To compound the problem, Mother expressed irrational and inconsistent reasons for refusing treatment: 1 [Sjometimes she would tell us that she didn’t want to take the medications because she needed to take them on a full stomach.... And then the next time the medications were due, she would say that she couldn’t take them because she needed to take them on an empty stomach. And the conversations would just go around and around, with no successful outcome. ²⁹⁰ Mother acted erratically in the hospital in other ways.

She called the police to the hospital at least three times, claiming that the staff were “trying to kidnap her baby, and lying about her.” Because of concerns about K’Amora’s safety, hospital staff placed a “sitter” (a “professional who sits in the room to ensure ... the baby’s safety”) in Mother’s hospital room. Ms. Miller summed up Mother’s disposition by describing her as “argumentative, irrational and difficult to work with,” and hospital staff ultimately called DSS for an Emergency Family Involvement Meeting (“FIM”). Tricia Fayall, a child protective service worker at DSS, received Ms. Miller’s report and oversaw the FIM at the hospital, the result of which was that “because of [Mother’s] mental state, ... we thought that it would be best for [K’Amora] to go into foster care.” It would be an understatement to say that the FIM did not go smoothly: “[Mother] called the police on us, while we were there. And then she called the police on the police, while we were there.” Mother evidently believed that Ms. Fayall (or hospital staff, it’s not clear which) were “trying to take her baby ... right then and there,” but called the police a second time because she felt that the responding officers were not “doing their job.” Six days after K’Amora was born, DSS placed her in the care of a foster family, 2 and Mother had weekly supervised visitation opportunities.

Priscilla Iwuanyanwu, the assigned case worker beginning in March 2012, oversaw K’Amora’s placement and visits with Mother; she knew Mother because ²⁹¹ she had also overseen the care of Mother’s three other children, whom we discuss below. Unfortunately, Mother’s erratic behavior continued. Of her sixty-one scheduled visits with K’Amora, she missed twenty-seven. She changed her phone number frequently and never kept DSS abreast of her whereabouts.

And although Mother signed two service agreements with DSS, she refused to sign the third, which would have run from February 26, 2013 to August 29, 2013. The visits Mother did attend failed to blossom into a healthy parent-child relationship. When K’Amora cried at visits, and she often did, Mother became angry, frustrated, and confused. Mother expressed reluctance to take K’Amora out of her car seat and was known to leave a visit early if K’Amora did not settle down quickly.

As K’Amora advanced from infancy to toddlerhood, Ms. Iwuanyanwu saw no bond form between them, and expressed concern that Mother took pictures of K’Amora rather than interacting with her. At one point, Mother even seemed to deny being K’Amora’s mother: Most of the time she comes to visit, she’s kind of quiet. She don’t say nothing. If I try to tell her to try to interact with her child, she would tell me, well, it’s your child.

That’s not my child. I’m just here to visit. (Emphasis added.) Mother’s behavior at visits ranged from quiet to volatile; at one point she accused Ms. Iwuanyanwu of hitting K’Amora, and on another occasion suggested that K’Amora’s foster mother had been breast-feeding her (even though she had no reason to think this was the case). Ms. Iwuanyanwu expressed frustration that Mother seemed to make no effort to bond with her daughter, and DSS remained uncomfortable with the prospect of K’Amora living with her.

Sharmika Spence, a Team Administrator with DSS, covered for Ms. Iwuanyanwu and supervised two of Mother’s visits with K’Amora. In January 2013, Mother complained at a visit that K’Amora was upset and crying because her hair had been styled too tightly (even though Ms. Spence didn’t believe that was the case). Ms. Spence recalled that Mother “seemed to not know what to do” in response to K’Amora’s crying. ²⁹² Although K’Amora ultimately settled down, Ms. Spence expressed the belief that she did so because she “wore herself out,” not because Mother succeeded in comforting her. Ms. Spence saw “no observation of a real bond of how a child would respond when they are familiar with someone and can be consoled.” Ms. Spence supervised another visit in which Mother not only couldn’t connect with K’Amora, but blamed her crying on her foster parents’ neglecting to feed her—even though Ms. Spence observed that K’Amora was of an appropriate height and weight, and DSS never had any concerns about her health or the quality of her foster family’s care.

Mother ended that particular visit early, and Ms. Spence observed that Mother again seemed unable to handle K’Amora’s fussiness. Ms. Spence also related an episode in which Mother called her into a visit and complained about a bruise on K’Amora’s thigh that the social worker explained came from an immunization. Mother insisted that the bruise resulted from abuse at the hands of K’Amora’s foster parents, and she contacted police. The police then required that a physician investigate, and Child Protective Services ruled out the possibility of any abuse (consistent with K’Amora’s medical records, which showed a recent immunization).

Overall, Ms. Spence questioned Mother’s “ability to parent K’Amora safely”: I have concern about her, about the bond with the child. During visits there are times when I have been called in to a visit because [Mother] will not talk to the child, will not touch the child. And that’s a concern for [DSS]. Because if you’re displaying that kind of behavior or actions in a ... place where you know you’re being monitored, then when you’re at home Pm not sure that you’re going to be displaying some loving care and affection for this child, if they are not reacting to you in a way in which you think they should.

And [Mother] has shown that she cannot ... reconcile two thoughts. So when I say that K’Amora doesn’t respond to ²⁹³ her in a way that maybe a child who’s been with their mother all along would respond. And I try to explain to [Mother] that this is why we have to continue to have visits, so that she becomes familiar with you, and things like that. She’s ... it seems that she can’t bring the two together.

And she becomes upset with the child because she doesn’t respond to her. Mother also expressed to Ms. Spence the belief that DSS was “playing mind games with her, that the worker is jealous of her. And that’s why she doesn’t want to give her child back. Because the worker wants the child.” Ms. Spence testified that Mother’s mental health issues were the greatest impediment to reunification.

Mother told Ms. Spence that she went to therapy only to mollify DSS, and Ms. Spence was concerned that Mother would not seek any mental health treatment at all if she got K’Amora back. In their several FIMs, Ms. Spence found Mother combative, resistant to therapy or to addressing her mental health issues, and completely unwilling to consider taking medication. Indeed, Mother’s mental health was a recurring theme throughout the TPR Hearing. Mother’s therapist, Deborah Wells Lane, testified that Mother would not accept medications to treat her diagnosed “major depression disorder.” Mother’s attendance at counseling sessions was “inconsistent,” and as of the date of the TPR Hearing, Mother had not appeared for a session for over five months.

Because of her sporadic attendance, Ms. Lane described her improvement as “slight.... [I]t was really still in the beginning stages.” (Her treatment goals included developing coping skills, learning to manage the symptoms of her depression, and getting into a daily routine.) Much like Ms. Spence, Ms. Lane believed that Mother only attended treatment in order to try to get K’Amora back. And Ms. Iwuanyanwu testified that although Mother agreed in services agreements to provide documentation of her mental health visits, she never did so, and when Ms. Iwuanyanwu confronted Mother, she would claim that her therapist was lying about her failure to appear. ²⁹⁴ Mother’s history with her other children, especially with her oldest daughter (“Sister”), 3 revealed prior incidents of neglect and abuse that several of the witnesses at the TPR Hearing corroborated. The juvenile court declared Sister a CINA in July 2011, when she was thirteen years old, after it found that Mother had beaten Sister with an extension cord, and Sister reported that Mother had punched and slapped her. But Sister repeatedly fled foster homes and returned to Mother, leading DSS to let her remain with Mother in spite of the abuse.

(Although this seems counterintuitive, DSS thought it best for Sister to live with Mother because her case worker would know where she was and because, unlike K’Amora, Sister was old enough to report any further abuse or neglect. 4 ) Mother’s two other children were in the care of their respective fathers and, therefore, not formally declared CINA, but Ms. Iwuanyanwu had been their DSS case worker as well, and the record contained evidence that raised serious questions about Mother’s ability to provide a safe environment for any of her children. 5 Mother, on the other hand, viewed DSS’s lesser-of-two-evils decision to allow Sister to remain with her as acknowledging her ability to care for K’Amora: [Mother] would say, I know how to care for my own child. If you think I’m not good enough for K’Amora, why did you send [Sister] home? There was so many time she had ²⁹⁵ threaten that she bringing [Sister] back to us. She said [Sister] doesn’t listen, she’s stubborn, she don’t go to school.

Ms. Spence differentiated K’Amora’s situation from Sister’s primarily by their age difference: At K’Amora’s age it’s important that she understands that there’s going to be an adult present to meet her need, at the point she notifies us that there is a need to be met. And because she talks very little, her way to let someone know that she has a need is to cry. And if an adult around her is not able to console her, it internally creates something in the child that she’s not going to be, her needs are not going to be met. And so, of course, that can produce things later on in life.

And so our concern is [Mother’s] ability to meet her needs, to console her. To find out what is wrong with her, and to be able to address it at the time. Both Ms. Spence and Ms. Iwuanyanwu recommended that the court terminate Mother’s parental rights. Ms. Spence agreed with counsel for DSS that Mother was “in control of the barriers to reunification,” and that she had failed to take “any steps to remove those barriers,” despite DSS’s efforts: We have worked with [Mother] for some time towards reunification, without progress....

I have personally pleaded my case with her, with regard to just addressing the things that she needs to address, so that she can have her child back in her care, as she said she would like. And it just has not moved forward. I have grave concerns about her mental health and her ability to maintain K’Amora’s safety and well being. And I don’t think that at this time, or at any time in the near future, if [Mother] does not address her mental health, that she will be able to maintain K’Amora’s well being.

Ms. Iwuanyanwu likewise opined that the court should terminate Mother’s parental rights because Mother was not following through with her service agreement, her court-ordered mental health treatment, or visits with K’Amora. She ²⁹⁶ also stated that K’Amora viewed her foster parents as her parents, and that she felt safe and well-cared for with them. K’Amora’s foster mother, Betty R. (“Ms. R.”), then testified about the care she provided to K’Amora right after her birth and about K’Amora’s life in the R. Family’s home.

K’Amora had received all of her medications and was HIV-free at the time of the TPR Hearing. Ms. R. and her husband have two adult children (a son, forty-one, and a daughter, thirty-eight), two adopted children (a son in college and a daughter who was five years old at the time of the hearing), and also are foster parents to a boy about K’Amora’s age. Ms. R. described K’Amora as a “very loving,” and “very friendly, very happy” child. As she put it, her foster son and K’Amora were like siblings and played very well together.

K’Amora also had good relationships with Ms. R.’s other children and grandchildren. Ms. R. described K’Amora’s involvement with church activities and considered her very much a part of the R. Family. Mother also testified at the TPR Hearing, after suggesting initially that she would not. Mother claimed that she had attended all of her visits with K’Amora, cancelling “maybe like two times,” and only because she had to go to therapy.

She denied ever being told she needed medication for mental health issues. She contended that she went to therapy even though she was not depressed, and she denied ever telling Ms. Iwuanyanwu that she wanted to change therapists because hers was not telling the truth. Mother also professed the belief that DSS workers and the R. Family were harming K’Amora. She recalled finding a lump on K’Amora’s thigh during a visit, and on another occasion saw “pinch marks” on her leg, but did not report these to anyone because “[t]hey all know what they doing to the child.” She claimed Ms. Iwuanyanwu would not permit her to take pictures of K’Amora to document the latter incident.

When asked about K’Amora’s crying during visits, Mother suggested that K’Amora wanted to stay with her and would not have reason to cry if she were in Mother’s care: ²⁹⁷ I mean if she cries, well she’s 2 now. If she cries it’s because she could be hungry or just sleepy or just tired. It could be anything. The hospitals—usually when my children cry a lot, it could be that they might be hungry or need to be changed.

But she’s not a baby, she’s a toddler now. So it’s different from a baby. When a baby cry, like [Sister’s] son, when he cries and cries and cries, I know that he’s teething. So it could be multiple things for a child to cry.

But if it’s a sever—severe cry I know that she probably just want to go—if I had her—if the Judge order for her to come back I probably'—She probably—But she know who I am so it wouldn’t be no reason and she’s not in school. It’s not like she don’t know who I am and not want to stay with me. She knows I’m her momma. In response to questions from the court, Mother denied refusing to give K’Amora medication at the hospital, denied that she had refused to pick up K’Amora at visits, and denied ever having seen a bruise on any of her children like the bruise on K’Amora that she reported to police after a shot at a physician’s office.

After closing arguments, the judge ruled from the bench and, in a decision that covered more than fourteen transcript pages, granted DSS’s petition to terminate Mother’s parental rights: First, the court found that Mother had been “uncooperative” in the hospital after K’Amora’s birth, that she had refused medication for herself and for K’Amora, and that her behavior overall was “strange.” Second, the court addressed the quantity and quality of her visits with K’Amora and found that she missed 27, or 45%. The court characterized Mother’s behavior overall as “inconsistent”: “The operative word that comes with regard to the efforts of [Mother] to reunify with [K’Amora] is inconsistent. She’s inconsistent with her total health care therapy. She’s inconsistent with her visitation with [K’Amora].” The court ²⁹⁸ also found that Mother repeatedly had not attended or completed other services that DSS offered her, such as parenting classes, and she had not kept DSS apprised of her whereabouts.

And the court found that when Mother did attend visits, they were not positive experiences for her or for K’Amora: There would be combativeness between Mother and worker. There would be a lack of engagement between Mother and child. Workers would testify that at [one] point [Mother] was not even talking with the child and not even engaging with the child. Even when prompted to do so even by the workers who may have been present.

Or her own mother who was present once or twice trying to mimic that which you do in order to console and engage with your own child. Third, the judge expressed concern that Mother’s history with her other children, especially Sister, demonstrated an inability to care adequately for the one (older) child who was in her care. And the court noted that DSS had provided services to Mother for K’Amora’s other brother and sister too, and that a CINA adjudication had only been avoided for them because their fathers had “stepped in and taken [Mother’s] place.” Finally, the court contrasted K’Amora’s foster family, where the older children “appear to be on paths of success,” and where K’Amora had adjusted and was learning from her foster-sister. As the court put it, “[f]rankly, all of this child’s ties are to her foster family.” The court found that terminating Mother’s parental rights “would free [K’Amora] to be reared and raised in what ... [t]his Court considers to be, a stable home with children who are similarly situated.

With experienced parents who have provided stability in the past for children who are similarly situated.” Although the court conceded that the issue of K’Amora’s medications had since been corrected, it still viewed as potentially harmful a decision not to terminate Mother’s parental rights, explaining that “[t]o uproot this child now would probably traumatize this child. And she has never been in her mother’s care.” (Emphasis added.) ²⁹⁹ In light of these facts, the court found that “exceptional circumstances” justified terminating Mother’s parental rights: Would it be an unacceptable risk to return this child to [Mother] who has shown inconsistencies and a lack of stability and, in some respects a lack of even caring for herself, much less a 21-month-old child. I think those inconsistencies and that lack of stability almost has a geological effect on this case. Because when it comes to issues of termination of parental rights we’re talking about pressure over a period of time.

And this period of time, from the date that the child was bom to today’s date, and the efforts of the mother to prepare herself to have her child back, the efforts failed. So the Court finds that there are exceptional circumstances in this case that will preclude this Court from returning [K’Amora] to [Mother], This young child K’Amora is doing well. This young child K’Amora only knows Mr. and Mrs. R. as her mother and father. And only knows her extended family as her family.

So the Court finds that it would be rather unacceptable and an unacceptable risk and detrimental to the best interest of the child to continue this parental relationship. Whether [Mother] is an unfit parent or not by clear and convincing evidence, that’s a little bit more difficult for the Court. Because housing has been provided.[ 6 ] She is taking care of—There is a child that resides in her home. And she is taking care of a young grandchild.

But the Court is satisfied as to the other circumstances with regard to K’Amora that would make it unacceptable to continue this parental relationship. The inconsistences, it’s everyone else’s fault. I miss all my appointments because— I don’t even know [why] they’re missed. But they’re missed.[ 7 ] ³⁰⁰ Children need stability.

A 13 or 14-year-old may not need as much stability as a 21-month-old. I don’t know, but a 21-month-old surely needs stability. ... Upon consideration of all the testimony and a review of State’s Exhibits ... the Court finds by clear and convincing evidence, having enumerated the factors in [the relevant statute] ... that it is in K’Amora’s best interest to grant [DSS’s] petition. Mother appeals.

II

DISCUSSION The trial court remarked at the beginning of its ruling that “[i]t’s almost as if the termination process began once [K’Amora] came out of the womb,” and it is fair to say that Mother’s refusal to allow K’Amora to receive antiviral medication started them down a path that culminated in the TPR Hearing and decision at issue. But that is not to say that the outcome was preordained. In addition to that first (and ill-considered) medical decision, the court relied on a nearly two-year (for K’Amora, life-long) pattern of erratic behavior, missed visits, and troubling mother-daughter interactions and on the positive environment in which K’Amora had lived her entire life with her foster family to support its findings, by clear and convincing evidence, that “the other circumstances ... would make it unacceptable to continue this parental relationship” and that “it is in K’Amora’s best interest to grant the Department’s petition.” The court opted not to analyze Mother’s fitness to serve as K’Amora’s parent, a question the court viewed as a closer one, but relied solely on the “exceptional circumstances” prong of Md.Code (1984, 2006 Repl.Vol.), § 5-323(b) of the Family Law Article (“FL”). In that way, then, this case is the analytical mirror image of our recent decision in In re Jasmine D., 217 Md.App. 718 , 94 A.3d 837 (2014), an unfitness case in which we recognized that the plain language of FL § 5-323(b) authorizes a termination of parental rights ³⁰¹ to be premised on a finding either of unfitness or “exceptional circumstances.” Mother contends broadly on appeal that “the trial court err[ed] by terminating [her] parental rights.” We examine that question against a three-tiered, interrelated standard of review: “[First, w]hen the appellate court scrutinizes factual findings, the clearly erroneous standard ... applies. [Second, i]f 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 Yve S., 373 Md. 551, 586 , 819 A.2d 1030 (2003) (quoting Davis v.