In re: Adoption of Quintline B.& Shellariece B.

RAYMOND G. THIEME, JR. (Retired, Specially Assigned), J. On March 7, 2014, the Circuit Court for Montgomery County, sitting as a juvenile court, terminated the parental rights of Rose H. (hereinafter “mother”) and Quintline B., Sr. (hereinafter “father”) to their children, Quintline B., Jr. and Shellariece B., who were adjudicated children in need of assistance (“CINA”). Prior to the Termination of Parental Rights (“TPR”) proceeding, on October 8, 2013, the Montgomery County Department of Health and Human Services (hereinafter “the Department”) sought to change the children’s permanency plan in the CINA cases from reunification to adoption by a non-relative.

On October 30, 2013, the court rejected this recommended change and reaffirmed the plan of reunification in an amended order. On September 10, 2013, the Department petitioned for guardianship of the children with the right to consent to adoption. The children, through counsel, consented. Mother initially objected, but later consented to a conditional termination of her parental rights in open court, on the record, under oath, and represented by counsel.

Father ¹⁹⁰ opposed the petition for guardianship in Notices of Objection/Request for Appointment of Attorney docketed on October 9, 2013. Father also moved to dismiss the petition on December 20, 2013. On January 7, 2014, father’s motion to dismiss was denied. Following a TPR hearing on February 10, 11, and 12, 2014, the court terminated mother and father’s parental rights on March 7th.

Father timely appealed and presents two questions for our review, which we quote: 1. Did the court err by allowing the Department to proceed with their Petitions to Terminate Parental Rights where the court-ordered permanency plan in the child in need of assistance case was a sole plan of reunification with the father? 2. Did the court err in terminating the father’s parental rights? For the reasons below, we affirm the court’s judgments in all respects.

FACTS AND PROCEEDINGS Father’s History With the Department Father has an older son, Landon, 1 who was initially found CINA in 1999 when both of his parents were incarcerated. When Landon’s mother was released, the case was closed. Landon was again found CINA in 2006 following allegations that father physically abused him. The CINA court found that Landon’s mother had not cared for him in two years, that father had a history of violent behavior, that Landon was afraid of his father and unwilling to return to his care, and that father had abused cocaine in the past and refused to submit to a drug screening.

Landon’s permanency plan is Another Planned Permanent Living Arrangement, and his case remains open. ¹⁹¹ The Children’s CINA Proceedings Born on October 2, 2009, Quintline tested positive for cocaine at the time of his birth and he was placed into emergency shelter care on October 5, 2009. Mother admitted using cocaine on the day she gave birth to Quintline. Quintline was found to be CINA on November 3, 2009 because both parents neglected him and were unable or unwilling to give him proper care and attention. 2 Quintline was initially placed in foster care, pending placement with his maternal grandmother. In response to an emergency motion filed by the Department, the court found that because of “new information regarding the health of [grandmother] that adversely affect[ed] her ability to care for [Quintline],” it was detrimental to Quintline’s well-being to place him with his grandmother, who also housed mother and father.

On November 24, 2009, a merits hearing was held; the court continued Quintline’s placement in foster care. The permanency plan of reunification with mother and father was affirmed at review hearings held on: April 9, 2010; July 2, 2010; and September 13, 2010. On March 23, 2011, the court recommended a permanency plan of reunification with father only. ¹⁹² Shellariece was born in 2010, placed in emergency shelter care on December 8, 2010, and found to be CINA on January 19, 2011. She was placed in the same foster care home as Quintline.

On November 4, 2011, the court adopted the permanency plan of reunification with father. On July 28, 2011, the first combined permanency plan review hearing was held and the court maintained a permanency plan of reunification with father for both children. The court maintained the same permanency plan at subsequent hearings held on: January 18, 2012; June 25, 2012; and December 19, 2012. At each of these hearings, the Department recommended that the permanency plan remain reunification with father.

A change, however, occurred at the permanency plan review hearing held on October 8, 2013, which had originally been scheduled for March 18, 2013. At that hearing, the Department requested that the court change the permanency plan from reunification with father to adoption by a non-relative because father’s housing and employment situations were not stable, and because he had not participated in any court-ordered drug screens, nor had he made the children a priority in his life. In an order dated October 30, 2013, the court rejected the recommendation, and reaffirmed the permanency plan of reunification with father. Parents’ Difficulties With Reunification Mother and Quintline tested positive for cocaine on the day he was born.

Mother used cocaine earlier that day. Risa Boswell was one of the first Department social workers assigned to the children’s cases. She testified that, during her time working on the case, father was bonded with the children, but significant issues needed to be resolved. In particular, she was concerned about father’s substance abuse, housing, and employment.

In addition, she felt he needed to complete courses in parenting and the abused persons program. Initially, in 2010, father was good with the children when they visited, playing with them, feeding them, and changing their ¹⁹³ diapers. Father attended the Avery Road treatment center and was successfully discharged into an outpatient program. Upon his release from Avery Road, father became noncompli-ant, refusing to attend Alcoholics Anonymous and Narcotics Anonymous meetings.

In addition, he failed to submit to urinalysis on a continuous basis and when random drug screens were done, he tested positive for cocaine on three different occasions. He was subsequently discharged from the outpatient program. Father attended Avery Road again, successfully completing that program in August 2010. He then attended Second Genesis, which he successfully completed in March of 2011, and then began living at Oxford House, a sober living arrangement where he shared a house with several other men.

While at Second Genesis, he received: individual, group, family, and trauma therapy; psycho-education; anger management; domestic violence prevention training; addictions treatment; relapse prevention; and coping strategies. Father completed the Responsible Fathers Program in 2011. Father also completed parenting classes at the YMCA and was employed by Home Depot. Father and the children’s first foster mother, Tangía Lu, sometimes had disagreements.

Father got angry at Lu when she reported to Boswell that father was having problems. Lu reported that father had only used one diaper for a “couple hour” visit when she had packed several diapers for him to use, that he fed the children junk food, and that he failed to feed them at all on a three-hour visit. In addition, father also sometimes failed to use car seats when picking up the children for visits. On several occasions when the Department would visit father when he was caring for the children, he did not have diapers, the children were dirty, and not appropriately dressed.

In addition, after an overnight visit with father, Shellariece returned with a deep cut on her hand. Mother lived at Avery House Halfway House for Women and Children with Shellariece while getting treatment for substance abuse. She was dismissed because of an altercation with a fellow resident. As a result, the permanency plan was ¹⁹⁴ changed from reunification with both parents to reunification with father.

In February 2012, the Department transferred the children’s cases to social worker Tania Butler. At this time, father was only permitted weekend visitation with the children. On a Wednesday, father contacted Butler and indicated that he needed the Department to pick up the children and put them in respite care because he had had an altercation with his mother, with whom he resided, and he did not feel comfortable leaving the children in her care. This incident showed that father was keeping the children outside of his designated contact time, in violation of the CINA order. 3 In June 2012, Butler responded to a call about father putting Quintline in danger.

The Department received a call indicating that father had held Quintline over the balcony at his home, because the child would not stop crying. Lu witnessed the incident. In response, Butler made an unannounced visit to father’s home on the day of the incident. When Butler confronted father about the incident, he indicated that he was simply playing around, and that he was “just kidding.” He also felt frustrated, like people were out to get him.

Father became angry with Lu, because he believed she was the one who reported the incident to the Department. In November 2012, father brought the children to spend the night with him at his girlfriend’s house. On father’s birthday, when the children were in his custody on an overnight visit, his girlfriend contacted him and asked him to come over to her house, which she shared with a roommate. Butler confronted father about the incident.

She explained that such a visit was not authorized and that father needed to provide the names of any individuals who might spend the night with the children for their safety. Father became irritated, and indicated that it was “bullshit” that the Department should want to know his girlfriend and his girlfriend’s roommate’s names in order to ¹⁹⁵ perform background checks on them. He refused to identify them. The rule regarding background checks had been explained to father several times previously.

Father indicated that the children had shared a bed that night, and that they did not sleep with him and his girlfriend. Father was evicted from Oxford House in 2013 for failure to pay rent. Prior to this, the Department had attempted to provide him funds to prevent his eviction, but father could not provide proof of his employment, per Department rules. Following his eviction, father provided an address to the social worker in Landon’s case who provided it to Butler.

When Butler attempted to find the apartment, she could not locate the particular number given and contacted father to determine which apartment was his. Father admitted that his things were at the address he gave, but that he was homeless, living on the streets. Father was fired from his job at Home Depot for falling asleep on the job and having an altercation with his supervisor. He worked briefly at Frederick Safe House fire protection company but failed to return to work there, providing no explanation for his actions.

Father also claimed to work at Fort Detrick, but this could not be proven. In December 2012, father stopped participating in urine screens. When Butler scheduled the tests for a more convenient day for father, he still refused to participate. On February 1, 2013, Quintline suffered seizures while waiting for the bus at his daycare.

He was taken to Shady Grove Hospital where he suffered more seizures. Quintline was transferred to Children’s Hospital in Washington, DC, but father refused to meet him there to sign papers to admit him to the hospital, because he was meeting someone about the possibility of renting a room. Butler testified that it took her over an hour-and-a-half to get into contact with father during this incident. Father finally provided verbal permission for Quintline’s admission into Children’s Hospital.

Butler remained concerned that father didn’t take full responsibility for his parenting duties. At the time of the TPR ¹⁹⁶ hearing in October 2013, father resided in a homeless shelter. Father admitted to using cocaine and alcohol in the months prior to the hearing. The Termination of Parental Rights Proceeding In July 2013, the Department requested that the CINA court change the permanency plan from reunification to adoption by a non-relative; the court denied this request and the permanency plan remained reunification with the father.

On September 10, 2013, prior to the October 8, 2013 permanency plan review hearing, the Department petitioned the court for guardianship with the right to consent to adoption of the children. At the October 8, 2013 permanency plan review hearing, the CINA court reaffirmed the permanency plan of reunification with the father. Mother initially objected to the petition for guardianship, but later withdrew her objection and consented to a conditional termination of her parental rights in open court, on the record, under oath, and represented by counsel. Father opposed the petition for guardianship in Notices of Objection/Request for Appointment of Attorney docketed on October 9, 2013.

On December 20, 2013, father also moved to dismiss the petition. On January 7, 2014, father’s motion to dismiss was denied. Following the TPR hearing on February 10,11, and 12, 2014, the Circuit Court for Montgomery County, sitting as a juvenile court, terminated mother and father’s parental rights. In its order terminating father’s parental rights, the juvenile court made the following conclusions of law: A. The Court’s charge in a Guardianship/TPR matter is to balance the welfare and best interests of a child against the fundamental liberty interest of the objecting parent.

In re Samone H., 385 Md. 282 , 869 A.2d 370, 381 (2005); In re Adoption No. 10941, 335 Md. 99 , 642 A.2d 201 (1994). B. In re Rashawn H., 402 Md. 477 , 937 A.2d 177 (2007), discusses the implicit presumption that a child’s best interest lies with a continuation of the parental relationship. This presumption can only be rebutted by clear and convincing evidence that the parents are unfit, or that exceptional ¹⁹⁷ circumstances exist that would make a continuation of that relationship detrimental to the best interest of the child. C. The Court applies the clear and convincing evidentiary standard to the totality of the evidence in determining whether to grant a Guardianship/TPR petition.

In carefully considering the statutory factors set forth in Md.Code Ann., Family Law Article § 5-323(d), primary consideration must be given to the health and safety of the child, although all other factors enumerated therein are to be considered as well. The statute does not require the court to find by clear and convincing evidence that each of the factors exists, nor does it require that all of the factors be found to be applicable. If the Court is persuaded by analysis of the applicable factors that termination serves the best interest of the child, the inapplicability of a factor will not preclude termination. In re Adoption of Amber R., 417 Md. 701 , 12 A.3d 130 (2011); In re Adoption No. 2428, 81 Md.App. 133 , 567 A.2d 139 (1989).

D. Finally, where the health and safety of [a] child is of concern, the court may look to past conduct to predict future conduct. In re Nathaniel A., 160 Md.App. 581 , 864 A.2d 1066, 1075 (2005); In re Dustin T., 93 Md.App. 726, 731 , 614 A.2d 999 (1992). E. For eight (8) years, the Department has offered services to Father for his three children under the Court’s jurisdiction. Focusing on the past four (4) years, the lives of Quintline and Shellariece, there has never been a point when the Children would have been stable and secure in his care and custody.

Quintline, Jr. and Shellariece have waited for four (4) and three (3) years respectively for Father to become a parent. He has not. Over the years, the Children bonded with Father and, with the Department’s support, Father made progress towards reunification. He participated in and completed inpatient drug treatment, and found stable housing and employment.

To his credit, Father consistently visited the Children. The Department, the Court, and no doubt Father, were hopeful that reunification would occur. His ¹⁹⁸ visits moved from supervised, to unsupervised day visits, to unsupervised weekend visits. Housing for himself and the Children appeared as the only obstacle.

Then, in April, 2012, the web began to unravel. After an incident involving his mother, the Department became aware that the Children were having unauthorized visits with Father, coordinated with the Children’s first foster mother, Ms. [Lu]. Father’s mother began making allegations to the Department that he was using drugs. In May, 2012, Father fell asleep at his job, had a verbal altercation with his boss, and was fired.

In June, 2012, after a visit with Father, the Children were diagnosed with yeast infections because they were not being kept properly clean. Shortly thereafter, Father held Quintline, Jr. over a railing and threatened to drop him. In November, 2012, Father took the Children to an unknown person’s home, which he well knew was in direct violation of a Court order. In January, 2013, Father was evicted from his housing.

He was ordered to participate in urine screens and he did not comply. He admitted to using drugs. He was not truthful to the Department about most of these issues. He has left himself with no options.

The Children, by contrast, have thrived. They have made great strides and drastic improvements in their development and behavior and are in a safe and consistent place. Their foster parents have adjusted their lives to the needs of the children. Michelle T. [current foster mother] testified about the challenges of taking on the responsibility for two children, and the adjustments that are required and the compromises that have to be made.

That is the role of a parent. That is the role to which Mr. B. could not accommodate. The Children and Father are on different trajectories. Father appeared to be close to reunifying with the Children, with the only impediment being appropriate housing for him and the Children.

Clearly, in hindsight, Father had and continues to have many more issues than lack of housing. He is unable to take care of himself. He cannot ¹⁹⁹ provide a safe and stable [home] for his children after four (4) years of Department intervention. The Court finds that Father is not a fit parent for the Children and likely will not take the steps to become a fit parent in the foreseeable future.

The Court is aware that there are challenges ahead for the Children. However, they are best served by having real permanency. The Children have strong, loving relationships with their foster parents, Michelle T. And Ivette D. They have strong bonds with each other. The Guardianship Order will not affect those relationships.

F. The Court has made findings of fact pursuant to the statutory factors found in § 5-323(d). The Court has weighed the evidence in its entirety, including the credibility of the witnesses before it. Taking all of the above into consideration, the Court finds by clear and convincing evidence that Father is unfit, that Father poses an unacceptable risk to the Children’s future safety, and that it is in the Children’s best interest that the parental rights of Quintline Lamonte B. and, by consent, Rose Rebecca H., be terminated. DISCUSSION Standard of Review We utilize the following interrelated standards of review in reviewing a court’s decision to terminate the rights of a parent: Namely, [w]hen the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131 (c) ] applies. [Second,] [i]f it appears that the [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 [court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion. ²⁰⁰ In re Adoption/Guardianship of Jasmine D., 217 Md.App. 718, 733, 94 A.3d 837, 846-47 (2014) (quoting In re Adriana T., 208 Md.App. 545, 553-54 , 56 A.3d 814 (2012)). I. Father asserts that the court erred when it permitted the Department to proceed with termination of his parental rights where the permanency plan in the children’s CINA cases remained reunification with him. He contends that his due process rights were violated in two ways. First, because of the TPR, the Department and not the Court, in effect, changed the permanency plan in the children’s CINA case.

Second, issues pending in the CINA litigation were foreclosed upon by the granting of the TPR without an opportunity for further review. In addition, father contends that interpreting In re Adoption/Guardianship of Jayden G., 433 Md. 50