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July 01, 2013

Court Could Consider Facts from Earlier Removal in Goal Change Hearing

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re Ashley S., 2013 WL 2350483 (Md.).

In case where earlier dependency matter was dismissed on appeal but children were removed on new facts, trial court properly found goal change to adoption was warranted. Fact that mother failed to visit during second custodial period and testimony of her children that they favored adoption because they did not believe mother was getting the mental health treatment she needed showed their relationship was harmed more by her erratic behavior than their time in care. 

Two sisters were alleged abused and neglected by their mother. The allegations involved physical abuse, leaving them unattended, and failure to provide needed treatment or services to support their education. They were eventually removed by the court after the mother kept the older sister home from school without explanation. 

During this custodial period, the agency could not always verify where the mother was living, having visited an address she provided and finding she did not live there. The agency had been unable to get the mother to participate and at times even discuss services. She was regularly late to visits. Though the mother had been encouraged to be involved with school meetings and medical appointments, she did not participate. 

About eight months after they were initially removed, the Court of Special Appeals reversed the dependency order finding an insufficient factual basis.

The children were legally removed shortly thereafter because the agency could still not verify the mother’s address. The mother did not appeal this order. 

Months later, the trial court held a permanency review. It considered the nearly eight months the girls were initially in care and the seven months after their second removal. 

According to the agency, they were unable to verify that the mother had completed any services. Though they had made referrals, the mother had not followed those recommendations. Instead, she gave the address of a psychologist she planned to see, but the address was to a parking garage. The mother testified that she had an apartment and a job but could not recall the addresses or phone numbers to either. Both girls testified that they favored adoption. 

The trial court ordered a plan of adoption and the mother appealed. The Maryland Court of Appeals heard the case on its own motion. 

The mother argued on appeal that because of the initial custody placement, the trial court should have given her additional time and put less weight on the circumstances that occurred during that episode. 

She argued the court should have considered that their bond would have been stronger but for the erroneous initial removal. The Maryland Court of Appeals stated that this may or may not have helped her case. Had the girls not been removed, the pattern of unstable residences, keeping the older child out of school, failing to obtain counseling, and excessive corporal punishment, may have eroded their bond as well. Even if the time in care hurt their bonding, this was in part due to the mother’s actions in failing or visiting late or seeing her children at other appointments. During visits she insulted her daughter and failed to follow through with other commitments. 

Thus, the trial court could have found the weakened bond was less due to the length of time in care, but to the mother’s inappropriate actions and inactions. 

The mother also claimed the court put too much weight on the children’s relationship with the foster mother, with whom they had been placed during both custodial episodes. While ample evidence showed the children were thriving in the foster home, the record did not show the juvenile court put undue weight on this factor. 

Next the court discussed the length of time in care. It held the trial court did not act improperly in considering the entire time the children were in care. Considering the impact the lack of permanency had on them, rather than a mathematically rigid analysis, was consistent with ensuring their best interests. 

In general, where a parent has their children removed for a period and that is overturned, it may be proper to disregard or put much less weight on facts and circumstances from that earlier episode. However, it would be inconsistent with protecting a child’s safety and well-being to do so rigidly. Here, the trial court made proper determinations after thoroughly reviewing the information and did not abuse its discretion in choosing an adoption goal. 

Based on the above, the Maryland Court of Appeals affirmed the trial court order changing the goal to adoption.