IN RE: C.E.
No. 2, Sept. Term, 2017
Court of Appeals of Maryland.
October 20, 2017
172 A.3d 476
Argued by Janet Hartge, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland, Baltimore, MD) and Argued by Joan F. Little (Legal Aid Bureau, Inc., Baltimore, MD), on brief, for Respondents.
Argued before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.
Adkins, J.
In this CINA1 case, we settle conflicting decisions from the Court of Special Appeals on the appealability of a juvenile
We issued a writ of certiorari to consider two questions. First, did the Court of Special Appeals err in holding that the court‘s order waiving reasonable reunification efforts was not a final order and not appealable? Second, did the juvenile court err in holding that a waiver of reasonable efforts pursuant to
We shall answer the first question no, holding that Petitioner had no right to an interlocutory appeal. We do not reach the second question.
I. FACTS AND LEGAL PROCEEDINGS
C.D., the mother of C.E., has an extensive history with Baltimore City Department of Social Services (“Department“). Under a series of saddening circumstances, all six of C.D.‘s children have been adjudged CINA. The first finding occurred in 1998 and the latest in 2015. Juvenile courts have involuntarily terminated C.D.‘s parental rights for four of her six children.
A. Involuntary Terminations of C.D.‘s Parental Rights
C.D. suffers from several mental illnesses that prevent her from properly caring for her children. C.D.‘s previous mental health diagnoses include paranoia, adjustment disorder, major depression, somatization disorder, borderline personality disorder, mania, and bipolar affective disorder. C.D. also demonstrated “fits of rage” and underwent psychiatric hospitalizations, yet she refused regular and continuing mental health
As a result of her inability to care for her children, primarily attributed to her mental illnesses, C.D. lost parental rights to four of her six children. C.D.‘s second child, I.S., was found to be a CINA in 1998. Her third child, L.B., was also found to be a CINA in 1999. In 2003, a juvenile court terminated C.D.‘s parental rights over both I.S., and L.B. after a contested hearing. The Court of Special Appeals affirmed the juvenile court‘s termination of C.D.‘s parental rights. C.D.‘s fourth and fifth children, J.D. and M.D., were both found to be CINA in 2012. After a contested hearing in 2014, C.D.‘s parental rights with respect to J.D. and M.D. were also terminated. Again, the Court of Special Appeals affirmed. When C.D. had her sixth child in 2014, the Department intervened once again.
B. CINA Finding Regarding C.E.
C.E. was born prematurely in May of 2014. In June, C.E. was transferred from the neonatal intensive care unit at Johns Hopkins to Mount Washington Pediatric Hospital after complications arising from C.E.‘s low birth weight. In July, before C.E. could leave the hospital in the care and custody of C.D., the Department filed a CINA Petition for shelter care of C.E. in the Circuit Court for Baltimore City. The Department alleged that C.D. had untreated mental health conditions that prevented her from caring for C.E. Two weeks later, the juvenile master approved the CINA petition and ordered C.E. into the Department‘s custody. The Department then transferred custody of C.E. to relatives. An adjudicatory hearing was set for October of 2014. This hearing was postponed five times. The juvenile court agreed to four of these postponements to allow C.D. to hire an attorney—she hired and fired several in this timeframe.
On June 16, 2015, nearly a year after the Department filed its Petition, the court conducted an adjudicatory hearing and
C. Department‘s Waiver Request
The Department expended extensive resources and took substantial steps to provide C.D. with reasonable reunification services. The Department, through an assigned caseworker, made repeated referrals to assist C.D. in obtaining mental health treatment. C.D. refused to leave her home for mental health treatment. To appease C.D. the Department contacted twelve mental healthcare providers but each refused to provide in-home care to C.D. A social worker attempted to give C.D. psychiatric resources, but C.D. promptly ripped up the resources and handed them back to the social worker. C.D. rejected the transportation offered by the Department for visits with C.E. Although C.D. had a period of supervised bi-weekly visits with C.E., these visits were marred by C.D.‘s emotional outbursts.
On July 9, 2015, the Department filed a Motion to Waive Reasonable Efforts to Reunify pursuant to
The Department argued that it should not continue to provide reasonable reunification services because C.D. involuntarily lost her parental rights to four siblings of C.E. C.D., opposing the motion, argued that
After the court heard argument on the Department‘s Motion and C.E.‘s response, it granted the Department‘s Motion. The hearing judge noted C.D.‘s four previous contested terminations of parental rights and explained that “in my view of the entire record of this case . . . it is mandatory for me to grant the Department‘s motion under [CJP] 3-812.” In his written order, the hearing judge again noted “[C.D.‘s] four prior appellate-sustained [terminations of parental rights] over [C.D.‘s] objection for [C.E.‘s] siblings.” C.D. immediately appealed the order waiving reasonable efforts to the Court of Special Appeals.
D. C.D.‘s Appeal of the Waiver Order
The intermediate appellate court, in an unreported decision, affirmed the waiver. In re C.E., No. 0464, 2016 WL 7235560 (Md. Ct. Spec. App. Dec. 14, 2016). The Court did not address the question C.D. submitted,3 but instead held that an order
The intermediate court also considered whether
A dissenting judge disagreed with the Court‘s rejection of C.D.‘s appeal and reasoned that that the panel majority improperly characterized the waiver order as one that would not affect C.D.‘s care or custody. Id. at *9.
The 2016 decision conflicts with an earlier decision from the Court of Special Appeals. In that case, In re Joy D., 216 Md. App. 58, 84 A.3d 223 (2014), a different panel considered the same question: whether a party may immediately appeal an order waiving a department‘s obligation to provide reasonable reunification services. Id. at 61. The intermediate appellate court, in a unanimous opinion, reasoned that a waiver order was appealable as a change to the terms of another order regarding a parent‘s care or custody of her child. Id. at 73, 84 A.3d 223 n.10. (“An order waiving the requirement to make reasonable efforts to reunify a parent with his or her child is appealable pursuant to
C.D. makes two arguments before this Court. First, she contends that the juvenile court‘s order waiving reasonable reunification efforts deprived her of care and custody of C.E., thereby creating an immediate right to an appeal. Second, C.D. argues that
A. Standard of Review
Appellate courts do not disturb the juvenile court‘s findings of fact unless they are clearly erroneous. In re Yve S., 373 Md. 551, 586, 819 A.2d 1030 (2003) (citing Davis v. Davis, 280 Md. 119, 125–26, 372 A.2d 231 (1977)). We review the juvenile court‘s decisions on matters of law without deference. Id. Here, the parties do not dispute the juvenile court‘s finding with respect to the only relevant fact—that C.D.‘s parental rights to four of C.E.‘s siblings were involuntarily terminated.
The juvenile court determined, as a matter of law, that
B. Appealability of the Juvenile Court‘s Waiver
Our decision regarding the appealability of the juvenile court‘s waiver of the Department‘s obligation to provide reasonable reunification services first requires an exploration of the CINA statutory scheme and the progression of such cases.
1. CINA Statutory Framework and Proceedings
A local social services department can file a petition to remove a child from a home to protect a child “from serious immediate danger.”
After the emergency shelter care hearing, the juvenile court must hold an adjudication hearing. The rules of evidence apply and the juvenile court must decide “whether the allegations in the petition are true.” Id.
If the child is committed to the care of the Department, the court must also conduct a permanency planning hearing wherein the court shall decide the long-term plan for the child‘s placement. Id.
2. Appealable Orders in CINA Proceedings
The right to an appeal is not a constitutional right, but rather, as Judge Moylan has noted, “a grant of legislative grace.” Kurstin v. Bromberg Rosenthal, LLP, 191 Md. App. 124, 131, 990 A.2d 594 (2010), aff‘d, 420 Md. 466, 24 A.3d 88 (2011) (citing Jolley v. State, 282 Md. 353, 355, 384 A.2d 91 (1978)). Maryland‘s statutes determine this Court‘s appellate jurisdiction. Accordingly, an appeal must be legislatively permitted. Gruber v. Gruber, 369 Md. 540, 546, 801 A.2d 1013 (2002) (citing Kant v. Montgomery Cty., 365 Md. 269, 273, 778 A.2d 384 (2001)).
The General Assembly has outlined permitted appeals in CJP Title 12.
As we said in Peat: “[T]o be appealable a ‘judgment must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding.‘” Id. at 91, 394 A.2d 801 (quoting U.S. Fire Ins. Co. v. Schwartz, 280 Md. 518, 521, 374 A.2d 896 (1977), overruled on other grounds by Dep‘t of Pub. Safety & Corr. Servs. v. LeVan, 288 Md. 533, 419 A.2d 1052 (1980)).
In Rohrbeck v. Rohrbeck, 318 Md. 28, 41, 566 A.2d 767 (1989), we set out further requirements of a final judgment:
(Emphasis added). The final judgment rule aims to “promote judicial economy and efficiency” by preventing piecemeal appeals after every order or decision by a trial court. Sigma Reprod. Health Ctr. v. State, 297 Md. 660, 665, 467 A.2d 483 (1983).
Judge Wilner, writing for this Court, identified three exceptions to
[W]e have made clear that the right to seek appellate review of a trial court‘s ruling ordinarily must await the entry of a final judgment that disposes of all claims against all parties, and that there are only three exceptions to that final judgment requirement: [(1)] appeals from interlocutory orders specifically allowed by statute; [(2)] immediate appeals permitted under
Maryland Rule 2-602 ; [(3)] and appeals from interlocutory rulings allowed under the common law collateral order doctrine.
Salvagno v. Frew, 388 Md. 605, 615, 881 A.2d 660 (2005). Petitioner does not contend that the second exception to the finality rule (
This Court has explored, on numerous occasions, the appealability of the juvenile court‘s interlocutory orders as permitted by
In In re Karl H., we considered whether a parent could appeal the juvenile court‘s modification of a permanency plan from one of unification alone to a concurrent permanency plan for both reunification and adoption.10 394 Md. at 426–27, 906 A.2d 898.
Most recently, we considered the appealability of a non-final order altering a permanency plan. We assessed whether a mother could appeal a juvenile court order transferring immediate custody of the child from the Department to the child‘s father. In re Joseph N., 407 Md. at 282–83, 965 A.2d 59. The ultimate goal of the permanency plan—reunification with only the mother—remained the same. Id. at 283–84, 965 A.2d 59. Relying on authority discussed above, we concluded that the mother could appeal the juvenile court‘s transfer of immediate custody from the Department to the child‘s father, because it substantially increased the probability that the child would be reunified with the mother and the father rather than solely the mother. Id. at 292, 965 A.2d 59. Although the juvenile court did not amend the permanency plan‘s ultimate goal, granting the father immediate custody significantly reduced the likelihood that the mother would receive sole custody. Id. at 292–93, 965 A.2d 59. We also noted that the order represented a “meaningful shift in direction” for the mother and her ability to regain custody of her child. Id. at 292, 965 A.2d 59.
In a case closer to the present appeal, a mother appealed the juvenile court‘s denial of her request to compel an independent evaluation of the “bonding” between her and her children. In re Samone H., 385 Md. at 285, 869 A.2d 370.
Unlike Joseph N. or Karl H., in which the juvenile court altered immediate custody of the child or materially changed the terms of a permanency plan, C.E. has remained in the custody of relatives and the permanency plan has not changed. The Department‘s initial permanency plan and the continued permanency plan both called for C.E. to be ultimately placed with relatives. Accordingly, the order has not denied C.D. of the custody of C.E. Additionally, we cannot conclude that the order impacts C.D.‘s “care” of C.E. Prior to the order, C.D. failed to utilize reunification services. After the order, this has not changed. The order merely relieved the Department of its obligation to foist services upon an uncooperative parent. Contrary to C.D.‘s assertions, the waiver of reasonable reunification efforts has not worked a “death-knell” on her ability to regain custody and care of her child and represents no “meaningful shift in direction.” In re Joseph N., 407 Md. at 292, 965 A.2d 59. Since the order does not deprive C.D. of the “care or custody” of C.E., it is not immediately appealable via
We consider another of the Department‘s arguments to be particularly persuasive. We have recognized that the General Assembly permitted waiver of the reasonable efforts to prevent a CINA from languishing in foster care. The statutes regarding CINA and reasonable reunification efforts have their origin in federal law. We explained the origin of the
During the 1970‘s, nationwide concern grew regarding the large number of children who remained out of the homes of their biological parents throughout their childhood, frequently moved from one foster care situation to another, thereby reaching majority without belonging to a permanent family. This phenomenon became known as “foster care drift” and resulted in the enactment by Congress of Public Law 96-272, the “Adoption Assistance and Child Welfare Act of 1980,” [(“AACWA“)] codified at
Congress then revised the AACWA when it passed the Adoption and Safe Families Act of 1997 (“ASFA“). Pub. L. No. 105-89, 111 Stat. 2115 (codified at
We agree with the Department that permitting C.D.‘s appeal of the juvenile court‘s order waiving reasonable reunification services will not serve the purposes of the CINA statutory framework. “A key purpose of the CINA law is to ‘achieve a timely, permanent placement for the child consistent with the child‘s best interests[.]‘” In re Ashley S., 431 Md. 678, 712, 66 A.3d 1022 (2013) (quoting
The Court of Special Appeals has issued conflicting opinions—one reported11 and one unreported—on the issue of whether a parent may immediately appeal a juvenile court‘s order waiving reasonable reunification efforts. Today we settle this issue. The intermediate appellate court‘s 2016 decision in this case—upholding the juvenile court‘s waiver order—correctly denied C.D.‘s appeal.
We hold that a juvenile court‘s order waiving a department‘s obligation to provide reasonable reunification efforts, while leaving a custody order and permanency plan unchanged, does not deprive a parent of care or custody of a child. Accordingly, C.D. has no statutory right to an immediate appeal within CJP
III. CONCLUSION
We affirm the judgment of the Court of Special Appeals and hold that C.D. could not immediately appeal the juvenile court‘s order waiving the Department‘s obligation to provide reasonable reunification efforts.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Lance BUTLER, III
Misc. Docket AG No. 14, Sept. Term, 2016
Court of Appeals of Maryland.
October 23, 2017
172 A.3d 486
Notes
The juvenile court‘s findings were supported by the evidence presented and the court‘s CINA determination was supported by the law. Accordingly, we hold that the trial court did not err nor abuse its discretion when it found C.E. to be CINA and committed him to the custody of the Department.
In re C.E., No. 0925, 2015 WL 9183397, at *10 (Md. Ct. Spec. App. Dec. 15, 2015), cert. denied, 446 Md. 705, 133 A.3d 1110 (2016).After conducting a hearing under
(e)(1) At a permanency planning hearing, the court shall:
(i) Determine the child‘s permanency plan, which, to the extent consistent with the best interests of the child, may be, in descending order of priority:
1. Reunification with the parent or guardian;
2. Placement with a relative for:
A. Adoption; or
B. Custody and guardianship under
3. Adoption by a nonrelative;
4. Custody and guardianship by a nonrelative under
5. For a child at least 16 years old, another planned permanent living arrangement that:
A. Addresses the individualized needs of the child, including the child‘s educational plan, emotional stability, physical placement, and socialization needs; and
B. Includes goals that promote the continuity of relations with individuals who will fill a lasting and significant role in the child‘s life; and
(ii) For a child at least 14 years old, determine the services needed to assist the child to make the transition from placement to successful adulthood.
(f)(1) In developing a permanency plan for a child in an out-of-home placement, the local department shall give primary consideration to the best interests of the child, including consideration of both in-State and out-of-state placements. The local department shall consider the following factors in determining the permanency plan that is in the best interests of the child:
(i) the child‘s ability to be safe and healthy in the home of the child‘s parent;
(ii) the child‘s attachment and emotional ties to the child‘s natural parents and siblings;
(iii) the child‘s emotional attachment to the child‘s current caregiver and the caregiver‘s family;
(iv) the length of time the child has resided with the current caregiver;
(v) the potential emotional, developmental, and educational harm to the child if moved from the child‘s current placement; and
(vi) the potential harm to the child by remaining in State custody for an excessive period of time.
In a petition under this subtitle, a local department may ask the court to find that reasonable efforts to reunify a child with the child‘s parent or guardian are not required if the local department concludes that a parent or guardian:
(1) Has subjected the child to any of the following aggravated circumstances:
(i) The parent or guardian has engaged in or facilitated:
1. Chronic or severe physical abuse of the child, a sibling of the child, or another child in the household;
2. Chronic and life-threatening neglect of the child, a sibling of the child, or another child in the household;
3. Sexual abuse of the child, a sibling of the child, or another child in the household; or
4. Torture of the child, a sibling of the child, or another child in the household;
(ii) The parent or guardian knowingly failed to take appropriate steps to protect the child after a person in the household inflicted sexual abuse, severe physical abuse, life-threatening neglect, or torture on the child or another child in the household;
(iii) The child, a sibling of the child, or another child in the household has suffered severe physical abuse or death resulting from abuse by the parent or guardian or another adult in the household and all persons who could have inflicted the abuse or caused the death remain in the household; or
(iv) The parent or guardian has abandoned the child;
(2) Has been convicted, in any state or any court of the United States, of:
(i) A crime of violence against:
1. A minor offspring of the parent or guardian;
2. The child; or
3. Another parent or guardian of the child; or
(ii) Aiding or abetting, conspiring, or soliciting to commit a crime described in item (i) of this item; or
(3) Has involuntarily lost parental rights of a sibling of the child. (Emphasis added).
(b) When allowed: If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment:
(1) as to one or more but fewer than all of the claims or parties; or
(2) pursuant to
(1) it must conclusively determine the disputed question;
(2) it must resolve an important issue;
(3) it must be completely separate from the merits of the action; and
(4) it must be effectively unreviewable on appeal from a final judgment.
See, e.g., Dawkins v. Balt. City Police Dep‘t., 376 Md. 53, 58, 827 A.2d 115 (2003) (citing In re Foley, 373 Md. 627, 633, 820 A.2d 587 (2003)) (emphasis added).