In re: D.M., J.M.

In re: D.M., J.M., No. 0998, September Term 2020 APPEAL AND REVIEW – INTERLOCUTORY ORDERS Under Maryland Code (1974, 2020 Repl. Vol.), § 12-303(3)(x) of the Courts and Judicial Proceedings Article, an interlocutory order is immediately appealable if it deprives parents of the care and custody of their children or changes the terms of such an order. In a Child in Need of Assistance or “CINA” case, an order amending a permanency plan of reunification with a parent to add a concurrent plan of placement with a relative for custody and guardianship is immediately appealable under § 12-303(3)(x) because the addition of a concurrent plan of placement with a relative for custody and guardianship broadens the permanency plan and has the potential to deprive a parent of care and custody of their child. CHILDREN IN NEED OF ASSISTANCE – MODIFICATION OF PERMANENCY PLAN The juvenile court has discretion to amend a permanency plan when the court considers the statutory factors of Maryland Code (1984, 2019 Repl.

Vol), § 5-525(f)(1) of the Family Law Article, and acts in the best interests of the children. In this case, the juvenile court considered the statutory factors, the father’s past conduct, the children’s best interests, and the goal of achieving a timely, permanent placement for the children in ordering an amendment of the permanency plan to add a concurrent plan of placement with a relative for custody and guardianship. Circuit Court for Baltimore County Case Nos.: 03-I-18-000050; 03-I-18-000051 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0998 September Term, 2020 ______________________________________ IN RE: D.M., J.M. ______________________________________ Arthur, Shaw Geter, Ripken, JJ. ______________________________________ Opinion by Arthur, J. ______________________________________ Filed: May 25, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-05-25 15:34-04:00 Suzanne C. Johnson, Clerk Mr. M., the father of nine-year-old D.M. and seven-year-old J.M., appeals the order of the Circuit Court for Baltimore County, sitting as the juvenile court, amending the permanency plan for his children from a sole plan of reunification with a parent to a concurrent plan of reunification with a parent and placement with a relative for custody and guardianship. Mr. M. argues that the juvenile court erred in changing the permanency plan without considering the statutory factors set forth in Md. Code (1984, 2019 Repl.

Vol.), § 5-525(f)(1) of the Family Law Article (“FL”). He also argues that the court abused its discretion in adding the concurrent plan of custody and guardianship by a relative. Because we hold that the juvenile court adequately considered the statutory factors, with primary consideration given to the best interests of the children, we shall affirm the order of the juvenile court. FACTUAL AND PROCEDURAL BACKGROUND D.M. and J.M. first came to the attention of the Baltimore County Department of Social Services (“the Department”) in August 2017 after their half-sibling, E.T., was born substance-exposed.1 At that time, D.M. and J.M. were six and four years old, respectively, and living in the care of their maternal grandmother (“Grandmother”).

Both children had lived with Grandmother for the majority of their lives—D.M. moved into Grandmother’s house with his mother and Mr. M. in early 2013 (when she was about two years old), and the family continued living with Grandmother after J.M. 1 Because Father is not the father of E.T., E.T. is not included in this appeal. was born in June 2013. Mr. M. lived with the children, Grandmother, and the children’s mother (“Ms. P.”) until he separated from Ms. P. in 2015. After E.T.’s birth in August 2017, the Department attempted to meet with Mr. M. and Ms. P. to determine a safety plan for D.M. and J.M. Mr. M. informed the Department that he was involved with his children, but was unable to care for them because he was living in Pennsylvania and had a history of substance abuse. The parties agreed that D.M. and J.M. should be placed in temporary custody with Grandmother.

On February 20, 2018, the Department concluded that “[r]easonable but unsuccessful efforts [had been] made to prevent or eliminate the need for a CINA finding” and petitioned the juvenile court to find that D.M. and J.M. were Children in Need of Assistance (“CINA”). On March 9, 2018, counsel for D.M., J.M., and their half- sibling filed an emergency request that the children be placed in shelter care with Grandmother, so that she would obtain the authority to make medical and educational decisions on their behalf. On that same day, the juvenile court placed the children in shelter care and granted Grandmother temporary, limited guardianship of the children. At a CINA adjudication hearing on June 11, 2018, the juvenile court granted a continuation of shelter care with Grandmother.

Father did not oppose the children’s continued placement with Grandmother.2 2 In regard to the failure to complete a CINA disposition within 60 days after children are placed in shelter care, see In re K.Y.-B., 242 Md. App. 473 , 485 n.4 (2019). 2 1. From July 6, 2018, to December 7, 2018 On July 6, 2018, the juvenile court held a disposition hearing and found the children to be CINA because both parents had substance-abuse issues that prevented them from providing appropriate care. As a result of the hearing, the court granted the Department custody of D.M. and J.M. and continued the placement with Grandmother. The court ordered that Mr. M.: (1) provide family background information, comply with service agreements, and maintain consistent weekly contact with the Department; (2) obtain clean, stable, hazard-free housing; and (3) submit to a substance abuse evaluation, participate in substance abuse treatment, and submit to random drug testing.

The court also ordered a CINA review hearing date of December 7, 2018, and a permanency planning hearing date of May 6, 2019. During the review period from July 6, 2018, through December 7, 2018, Mr. M. moved from Pennsylvania to Maryland. He informed the Department that he had attended a three-week drug-rehabilitation program from July to August 2018, but did not provide the Department with requested documentation to confirm his attendance. Following his discharge from the program, Mr. M. lived with his family in Westminster and Baltimore and maintained weekly, supervised visits with the children.

However, in October 2018, Mr. M. was arrested and charged with possession of a stolen firearm, possession of drug paraphernalia, possession of narcotics with an intent to distribute them, possession of more than 10 grams of marijuana, and possession of 3 controlled substances other than marijuana. After his arrest, Mr. M. stopped maintaining contact with the Department. At the December 7, 2018, review hearing, Mr. M. agreed that the children should not be placed with him, but he requested unsupervised visitation. The court denied his request, but continued to allow liberal, supervised visitation.

Grandmother continued to have custody of the children and temporary, limited guardianship. The court ordered Mr. M. to maintain consistent contact with the Department, comply with substance-abuse treatment recommendations and submit to random drug screens, maintain stable, clean and hazard-free housing, and obtain gainful employment. In its order, the court informed Mr. M. that the permanency plan could be changed if he failed to make “significant progress to remedy the circumstances that caused the need for removal” or if he was “unwilling or unable to give the child[ren] proper care and attention within a reasonable period of time.” 2. December 7, 2018, to May 6, 2019 During the period from December 7, 2018, through May 6, 2019, when the next permanency planning hearing occurred, the Department reported that the children continued to thrive in Grandmother’s care.

D.M. no longer demonstrated a need for therapy and was doing well in school. J.M. continued to receive in-school therapy and enjoyed spending time with his siblings, including his younger half-brother, E.T., who resided with Grandmother as well. After his arrest in October 2018, Mr. M. had stopped consistently visiting the children, but had maintained regular contact through video calls and phone calls. 4 Because Mr. M. no longer had a cell phone, the Department was frequently unable to communicate with him. The Department heard concerns from family members that Mr. M. may have been using illegal substances.

At the permanency planning hearing on May 6, 2019, the Department requested that the juvenile court continue the commitment of the children to the Department and continue the limited guardianship with Grandmother. The Department also requested that the permanency plan be amended from reunification with a parent to a concurrent plan of reunification with a parent and placement with a relative for custody and guardianship or adoption. Mr. M. agreed that he “need[ed] to get himself into a better situation to be able to assume care” for the children. He also agreed with the Department’s request for continued commitment and placement with Grandmother.

However, Mr. M. objected to the Department’s request for a concurrent permanency plan and asked for “a little more time” to move towards the plan of reunification. The court denied the Department’s request and continued the permanency plan of reunification. 3. May 6, 2019, to October 11, 2019 At the next permanency plan review hearing, on October 11, 2019, the Department reported that D.M. and J.M. continued to thrive in the stability of Grandmother’s care. The Department also reported that Father had tested positive for cocaine and had refused a request to submit to a hair-follicle drug test.

He had visited the children “sporadically,” had not provided the Department with his address or telephone number, had canceled a 5 scheduled meeting with the Department’s representative, and had not responded to requests to reschedule the meeting. At the permanency plan hearing, Father informed the Department that he had entered a substance-abuse treatment program, but did not provide the Department with documentation confirming his participation in the program. He did, however, submit to a hair-follicle test, which was negative. Mr. M. agreed to continue the commitment of D.M. and J.M. and to continue the guardianship with Grandmother, but argued for a continuation of the sole plan of reunification.

The Department, by contrast, requested that the permanency plan be changed to a concurrent plan of reunification and adoption by a relative, because Mr. M. had not made “a significant change” demonstrating that he was “moving forward . . . to actually parent his children[.]” A magistrate, finding that “appropriate and reasonable efforts were made” to finalize the plan of reunification, recommended the continuation of the sole plan of reunification. The Department filed exceptions to the refusal to recommend a concurrent plan. 4. October 11, 2019, to November 5, 2020 An exceptions hearing was scheduled for January 13, 2020, but was postponed until November 5, 2020, first because Ms. P. was incarcerated, then because of the coronavirus pandemic, and then to allow Ms. P. to obtain counsel. A permanency plan review hearing was scheduled for March 20, 2020, but was postponed until November 5, 6 2020, first because of the pandemic and then because Ms. P. had not received proper notice.

At the beginning of the October 2019 review period, Mr. M. informed the Department that he had found employment. Nonetheless, he refused to identify the employer or provide documentation of his employment, saying twice that he did not want to pay child support. Mr. M. began participating in a substance-abuse program in February 2020, but after losing his job and his health insurance in March 2020, he stopped attending. He did not inform the Department that he had lost his job.

Nor did he inform the Department that he had moved from Westminster to his mother’s residence in Baltimore until four months after the move. The Department had been attempting to visit his Westminster address in order to conduct a home study. Except for a three-week period during December 2019, Mr. M. maintained consistent weekly, supervised visits with D.M. and J.M. When in-person visitations were halted in March 2020 because of the stay-at-home order at the outset of the pandemic, Mr. M. spoke with his children regularly through video calls and phone calls. After in- person visitation resumed, Mr. M. agreed to outside visits in Grandmother’s backyard for safety reasons; however, the Department reported that from July to October 2020, Mr. M. did not visit consistently.

Mr. M. began to make progress towards reunification in July 2020. After being approved for Medicaid, Mr. M. began participating in a new substance-abuse treatment program at the MAT Clinic. Mr. M. continued a parenting anger-management program 7 that he had begun before the pandemic and completed the program in September 2020. Mr. M. obtained his driver’s license and began working as a delivery driver for Amazon.

He complied with the Department’s request for drug-testing, albeit one month later than requested, and tested negative for all non-prescribed substances. On September 9, 2020, Mr. M. moved the juvenile court for unsupervised visits, citing the steps he had been taking towards reunification. The Department approved his request. 5. November 5, 2020, Permanency Plan Review and Exceptions Hearing On November 5, 2020, the juvenile court finally held the exceptions hearing and permanency plan review hearing that had been postponed for much of the year.

At the hearing, the Department applauded the steps Mr. M. had recently taken, stating that he had “done considerably better than he had done during the first three years of this case.” However, the Department noted that the case had begun in 2017 and that the children remained CINA; thus, the Department requested that the court order a permanency plan of reunification concurrent with a plan of custody and guardianship or adoption by a relative. Counsel for the children requested that the court modify the permanency plan to a concurrent plan of reunification and guardianship by a relative (and not adoption). Counsel explained that, while Mr. M. had made progress over the past nine months, they remained concerned about “the length of time it has taken for . . . Mr. [M.] to get to this point[.]” ] Mr. M. testified as to the progress he had made during this review period.

He had been employed as a delivery driver with Amazon for “about a month” and worked four 8 days a week, from 9:30 am to 6:00 pm. Although he was still living with his mother, he planned to sign a lease on a two-bedroom townhouse once he obtained the additional paystubs to help determine what his rent payment would be. In its closing argument, the Department reiterated its request that the court adopt a concurrent plan of reunification and either placement with a relative for custody and guardianship or adoption by a relative. The Department explained that Grandmother had consistently been “the parent” throughout the children’s lives.

The Department also explained that Grandmother planned to adopt E.T., the children’s half-brother. The Department argued that Grandmother has provided “security for these children” and “has always provided wonderful and good care.” Counsel for D.M. and J.M. agreed with the Department’s argument, but asked the court not to include adoption as a potential concurrent plan. Counsel explained that, while the children have a “good relationship” with Mr. M., “[t]hey do not wish to live with their father[;] they like living where they are. They feel safe . . . and secure at their grandmother’s home.” Counsel argued that Mr. M. had been employed only for one month and that, while he had made progress, it was too soon to consider placing the children with him.

Counsel for Mr. M. argued that the permanency plan should remain one of reunification alone, because, she said, Mr. M. “has addressed the issue which brought this case as far as he was concerned to this Court.” The juvenile court agreed that Mr. M. “has worked very diligently to improve his situation” and that he had not done anything recently “to put his parenting rights in 9 jeopardy.” The court granted Mr. M. liberal and unsupervised visits “with every other weekend overnights, when and if [Mr. M.] obtains suitable housing.” The court found that it was in the best interests of the children to adopt a concurrent permanency plan of placement with a relative for custody and guardianship; thus, the court granted the Department’s exceptions in part. The court stated its findings were “based upon a variety of factors.” Evidently referring to Maryland Code (1984, 2019 Repl. Vol), § 5-525(f)(1) of the Family Law Article, the court cited “the factors in the statute” as factors that it had considered. The court added that it had, “most importantly,” considered “the best interest of the children.” The Court set a permanency plan review hearing date of April 5, 2021.

Mr. M. filed this timely appeal. MOTION TO DISMISS The Department and the children move to dismiss this appeal, arguing that the order is not appealable because the addition of the concurrent plan “does not materially impact or diminish [Mr. M.’s] ability to regain custody.” As a threshold matter, therefore, we must determine whether a parent can take an immediate appeal of a juvenile court’s order amending a permanency plan of reunification to add a concurrent plan of placement with a relative for custody and guardianship. In general, a party may appeal only from “a final judgment entered in a civil or criminal case by a circuit court.” Maryland Code (1974, 2020 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article (“CJP”).

See In re C.E., 456 Md. 209, 220 (2017) (quoting Kurstin v. Bromberg Rosenthal, LLP, 191 Md. App. 124, 131 (2010), 10 aff’d, 420 Md. 466 (2011)) (“[t]he right to appeal is not a constitutional right, but rather . . . ‘a grant of legislative grace’”). To qualify as a final judgment, an order “must be ‘so final as either to determine and conclude the rights involved or to deny the appellant the means of further prosecuting or defending his or her rights and interests in the subject matter of the proceeding.’” Metro Maint. Sys. South, Inc. v. Milburn, 442 Md. 289, 299 (2015) (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989)) (emphasis in original); accord Monarch Acad.

Baltimore Campus, Inc. v. Baltimore City Bd. of Sch. Comm’rs, 457 Md. 1, 43 (2017); Huertas v. Ward, 248 Md. App. 187 , 200 (2020). “In other words, the order ‘must be a complete adjudication of the matter in controversy, except as to collateral matters, meaning that there is nothing more to be done to effectuate the court’s disposition.’” Huertas v. Ward, 248 Md. App. at 201 (quoting Metro Maint. Sys. South, Inc. v. Milburn, 442 Md. at 299 ).

All of the parties correctly acknowledge that an order changing a permanency plan in a CINA case is not a final judgment. The Court of Appeals has identified three exceptions to section 12-301’s finality requirement: (1) appeals from interlocutory orders specifically allowed by statute; (2) immediate appeals permitted under Maryland Rule 2-602(b); (3) and appeals from interlocutory rulings allowed under the collateral order doctrine. In re C.E., 456 Md. at 221 (citing Salvagno v. Frew, 388 Md. 605, 615 (2005)). All of the parties agree that the juvenile court’s order could be appealable only under CJP § 12-303(3), which permits appeals from specified interlocutory orders. 11 Specifically, CJP § 12-303(3)(x) permits parties to appeal from an order “[d]epriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order[.]” An order changing a permanency plan is immediately appealable under § 12-303(3)(x) if the order “operate[s] to deprive” a parent of the care and custody of their children or “change[s] the terms” of a parent’s care and custody of their children.

In re Samone H., 385 Md. 282, 299 (2005); see In re Damon M., 362 Md. 429, 437-38 (2001) (holding that if a permanency plan for reunification is amended or modified to a permanency plan for adoption, long-term care, or permanent foster care, it is an immediately appealable order). In In re Karl H., 394 Md. 402, 430 (2006), the Court explained that, in determining the appealability of an interlocutory order in child custody cases, “the focus should be on whether the order and the extent to which that order changes the antecedent custody order.” “If the change could deprive a parent of the fundamental right to care and custody of his or her child, whether immediately or in the future, the order is an appealable interlocutory order.” Id. In Karl H., the juvenile court approved a concurrent permanency plan of reunification with the parents and adoption by a non-relative. Id. at 405-06 .

On the parents’ appeal, the Court reasoned that because reunification “gives a parent the opportunity for reconciliation” but adoption would “terminate a parent’s rights along with the hope of reunification[,]” reunification and adoption are “mutually exclusive goals, and are directly contradictory goals[.]” Id. at 431 . Thus, the Court held that the approval 12 of a concurrent plan of adoption was “sufficiently far enough along the continuum of depriving a parent of a fundamental right and [was] immediately appealable.” Id. at 430 . Similarly, in In re Joseph N., 407 Md. 278, 291 (2009), the Court held that orders that effectively broaden a permanency plan to a parent’s detriment are immediately appealable under CJP § 12-303(3)(x). There, the mother appealed after the juvenile court continued a permanency plan of reunification, but moved the child from foster care into the custody of his father.

Id. at 291-92. The Court reasoned that because the permanency plan did not explicitly specify whether the goal was reunification with the mother or the father, the order “expanded the universe of persons eligible for reunification” by placing the child in the father’s custody. Id. at 292. “[T]he Department’s focus was no longer limited to making reasonable efforts to reunify [the child] with [his mother] and was instead, broadened to facilitate [the child’s] reunification with either his mother or his father.” Id. The broadening of the plan operated to the mother’s detriment, because it “had the potential to facilitate and accelerate a grant of full custody to” the father rather than to her.

Id. Because a “meaningful shift in direction” occurred when the permanency plan was broadened, the Court held that the order was immediately appealable under CJP § 12-303(3)(x). Id. On the other hand, when a CINA order does not “adversely affect” the parent’s parental rights or “change the permanency plan terms to [the parent’s] increased detriment[,]” the order is not appealable under CJP § 12-303(3)(x).

In re Samone H., 385 Md. at 316 . For example, in In re Samone H., the juvenile court continued the terms of the permanency plan, but denied the mother’s motion for an independent “bonding 13 study.” Id. at 315-16 . In holding that the mother did not have the right to take an immediate appeal of the order under § 12-303(3)(x), the Court determined that, while a bonding study could “be beneficial to the determination of a permanency plan[,]” the order denying the study did not adversely affect the mother’s parental rights or change the terms of the permanency plan to her