REPORTED DECISION

In re: Adoption/Guardianship of Cross H., ___ Md. App. ___, ___ A.3d ___, No. 1987, Sept. Term, 2010 (Md. Ct. Spec. App. filed July 1, 2011).

Issues on Appeal

The three questions presented on appeal were: 1) “Did the circuit court err in terminating appellants’ parental rights when an appeal of the underlying CINA order changing the minor child’s permanency plan to adoption was pending?”; 2) “Did the circuit court err in refusing to consider placement of the minor child with his parental grandmother?”; and 3) “Did the circuit court err in terminating appellants’ parental rights?”

Holding

  • The circuit court did not err in terminating appellants’ parental rights when an appeal of the underlying Child In Need of Assistance (“CINA”) order was pending.CINA and TPR proceedings are governed by different statutes and nothing prohibits the initiation of TPR proceedings while a CINA appeal is pending.
  • The circuit court also did not err with regards to the paternal grandmother because the juvenile court had previously considered—then later rejected—her as a placement. Additionally, the focus of a TPR hearing is to determine the fitness of the parents, not the paternal grandmother’ssuitability as a placement.
  • Finally, the circuit court did not err in terminating the parental rights of the appellants because the circuit court had properly considered the factors enumerated in Family Law Article (“FL”) §5-323(d) and the evidence supported its factual findings.

Facts

Cross, who weighed less than four pounds at birth, wasprenatally exposed to both HIV and hepatitis-C, was born prematurely, and from birthwas exhibitingsevere health issues, including anemia, heart arrhythmias, and breathing difficulties. After over one month of hospitalization, Cross was adjudicated a CINA andcommitted to the Department of Social Services (“the Department”). Cross was placed in a foster home with Mr. and Mrs. B., who later became unable to care for him when they experienced a medical emergency. Cross was then placed with Christopher D. and David A., where he has since remained.

Virginia H., the mother, was incarcerated after Cross’s birth. Upon her release, she entered a rehabilitation center, where she stayed for nearly a year. Ms. H., who has four children, does not have custody of any of them. Cross’s permanency plan changed to reunification with his father once his father was determined to be Aaron R.; however, in March 2009, Mr. R. requested Cross’s placement with his paternal grandmother, Barbara J. Mr. R. recognized that he was not a viable placement option for Cross, and that he unlikely would become one in the near future. In April 2009, the circuit court ordered the Department to conduct a home study and a bonding study to determine whether Barbara J. could serve as a placement resource. The results of those studies, which were negative, caused the juvenile master to recommend that Cross’s permanency plan change to non-relative adoption.

Ms. H., the mother, filed exceptions to the permanency plan. After the exceptions hearing, the circuit court concluded that neither Ms. H. nor Mr. R. were viable placements for Cross and ordered a permanency plan of non-relative adoption. Ms. H. noted an appeal of the CINA case with the Court of Special Appeals (“CSA”). While that appeal was pending, the Department filed a TPR petition. Mr. R. filed a motion to stay the TPR proceedings in the juvenile court until the CINA appeal had been resolved, which the juvenile court denied. After the TPR hearing, the juvenile court terminated the parental rights of Ms. H. and Mr. R. and granted guardianship to the Department.

The Department filed a motion to dismiss the CINA appeal as moot, claiming that the TPR order ended the circuit court’s jurisdiction in the CINA case. The CSA denied the motion to dismiss and affirmed the circuit court’s CINA decision. Appellant, Ms. H., filed a petition for writ of certiorari to the Court of Appeals for the CINA case, which was denied. Ms. H. and Mr. R. both separately noted an appeal of the TPR case.

Discussion

I.

Appellants argued that the circuit court erred when it continued with the TPR hearing while the appeal of the CINA order was pending. Because the Court of Appeals denied appellants’ motion for a writ of certiorari in the CINA case, the CSA noted that their argument was moot; nevertheless, it discussed the issue to clarify the interaction between CINA proceedings and TPR cases.

The CSA distinguished this case from In re: Emileigh F.,355 Md. 198 (1999). Unlike Emileigh F., where the juvenile court then granted the Department’s motion for an order of recession and termination of juvenile court jurisdiction, effectively terminating the CINA case while an appeal was pending; here, no action was taken to terminate the CINA proceedings. Although a juvenile court can take a CINA adjudication into consideration in a TPR proceeding, it is not a prerequisite. The Department may file a TPR petition even if the permanency plan has not yet been changed from reunification or adoption by a relative to adoption by a non-relative. Earlier, in the appeal of the CINA case, the CSA noted that the TPR order, by operation of statute (specifically, FL § 5-325(a)(1) and (4) and FL §5-324(b)), extinguished the CINA case.Here, the CSA explained that Emileigh F. stands for the proposition that a juvenile court’s actions in the CINA proceedings cannot defeat an appellant’s right to challenge those CINA determinations.

Finally, nothing prohibits the initiation of a TPR proceeding during the pendency of a CINA appeal. Although the two are related, the actions operate independently and are governed by different statutes. Furthermore, a CINA adjudication is not required prior to filing a TPR petition.

II.

Appellants argued that the circuit court erred by refusing to consider placing Cross with his paternal grandmother; this was based on the court’s denial of the paternal grandmother’s motion to intervene in the TPR proceedings and its rulings limiting admission of evidence regarding her suitability as a placement for Cross. The CSA observed that the juvenile court had already considered, then subsequently rejected, the possibility of Cross’s placement with his paternal grandmother: the Department conducted both a home study and a bonding study to determine whether shewould be a viable placement for Cross. These studies resulted in negative findings, and a social worker who testified as an expert at the TPR hearing said that there was no evidence of bonding or attachment between Cross and the paternal grandmotherThe social worker concluded that Ms. J. was not a long-term placement option. CSA stated that the circuit court had correctly pointed out that the focus of a TPR hearing is the parental fitness of Ms. H. and Mr. R—not the potential suitability of the paternal grandmother as a placement resource.

III.

Appellants contended that the juvenile court erred in terminating their parental rights. The CSA explained that when the State attempts to terminate the parental rights without the parents’ consent, the standard is whether the TPR would be in the best interest of the child. FL §5-323. The CSA noted that its role is to determine whether the lower court correctly applied the law, whether it abused its discretion, and whether its factual determinations were clearly erroneous. The CSA concluded that the circuit court had properly considered the statutory factors.

Regarding Cross’s emotional ties, the worker who conducted the home studies and bonding studies testified that she did not observe any signs of attachment between Cross and his biological parents or grandmother; she did, however, observe strong attachment between Cross and his foster parents. The CSA concluded that the circuit court properly considered the all applicable statutory criteria based on the evidence in the record, which provided clear and convincing evidence of Mr. R.’s parental unfitness and the existence of exceptional circumstances with Ms. H. that made continuation of parental relationship detrimental to the best interests of Cross.

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