author: Kenney, J.

text:
    168 A.3d 1088
    IN RE: ADOPTION/GUARDIANSHIP OF C.A. AND D.A.
    No. 2234,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    August 30, 2017

      Submitted by: Michael T. Torres (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
    Submitted by: Deborah L. Corley (Legal Aid Bureau, Inc., Annapolis), Janet Hartge, (Brian E. Frosh, Atty. Gen., Baltimore, MD), all on the briefs, for Appellee,
    Panel: Kehoe, Leahy, James A. Kenney, III (Senior Judge, Specially Assigned), JJ.
   Kenney, J.

On September 15, 2014, the Circuit Court for Anne Arundel County, sitting as the juvenile court, declared D.A. and C.A., children of A.C.-R., appellant (“Father”), each to be a Child in Need of Assistance (“CIÑA”). D.A. and C.A. (the “Children”) were placed in the custody of the Anne Arundel County Department of Social Services (the “Department”). In 2016, the Department filed a petition seeking to terminate appellant’s parental rights. Following a hearing, the court granted the Department’s petition and terminated appellant’s parental rights. In this appeal, appellant presents the following question for our review:

Did the circuit court err in terminating [ajppellant’s parental rights?

For reasons to follow, we answer appellant’s question in the negative and affirm the judgment of the circuit court.

BACKGROUND

C.R.-A. (“Mother”) gave birth to D.A. and C.A. on February 7, 2007 and February 20, 2009, respectively. Father, who was in the country illegally, was arrested in 2010 “due to domestic violence between himself and the children’s mother” and was eventually deported to his home country of Mexico. At that time, Mother and her five minor children, all of whom were the children of Father, “resided in a boarding house with multiple families known for illegal activities including drug use, gambling and excessive alcohol.” In 2011, Mother was indicated for neglect by the Prince George’s County Department of Social Services (hereinafter “PGDSS”).

In August of 2013, Mother befriended Levi R. and Mary D., a married couple whom she met while the couple was doing missionary work for their church. At the time, Mother was living in a tent in Washington D.C. with her five children, including D.A. and C.A., and her boyfriend, Phillipe W. Not long after meeting Levi R. and Mary D,, Mother asked Mr. R. if he and his wife would care for the five children. The couple agreed and eventually filed for emergency custody of all five. The juvenile court granted custody of the five children to Mr. R. and Ms. D. in December of 2013. In that order, the court found that Father had “no present involvement in the case.”

Around the same time, Father was arrested and incarcerated in a federal prison in Louisiana because he again came into the United States illegally and was “trying to bring others into the country.” The record does not disclose Father’s whereabouts between the time he was deported in 2010 and the time he was incarcerated in 2013.

In February 2014, PGDSS investigated a report of child sexual abuse against Phillipe W. involving D.A. and C.A. The alleged sexual abuse happened “sometime in later 2012 or early 2013” when the Children were living in a tent with Mother and Phillipe W. PGDSS ultimately determined that the allegations involving D.A, were “indicated;” a finding of “unsubstantiated” was issued regarding the allegations involving C.A.

In July of 2014, Mr. R. informed the Department that he and his wife could no longer care for the Children. The Department subsequently filed and was granted a Petition with Request for Shelter Care, and D.A. and C.A. were placed in foster care. At the time, Mother’s whereabouts were unknown, while Father remained incarcerated in federal prison. In August of 2014, the court held a review hearing regarding the shelter care order, and, on September 15, 2014, the court found D.A. and C.A. to be CIÑA and ordered out-of-home placement under the care of the Department.

The court held another review hearing in January of 2015. By this time Mother had been located and was present at the hearing. Also present was counsel for Father, who remained in federal detention. Following the hearing, the court found that the Department had made reasonable efforts at reunification. The court also ordered that D.A. and C.A. were to remain in the custody of the Department and that Mother be allowed supervised visitation. The court made no findings regarding Father.

In May of 2015, the court held a hearing regarding D.A. and C.A.’s permanency plans. Again, Mother and counsel for Father were present for the hearing. Following the hearing, the court found that Mother had made “no progress toward correcting the problems that caused the children to be placed in foster care,” that she continued “to live with a man who may have abused one of her children,” that she had no employment or place to live, and that she continued “to test positive for illegal drugs.” The court also noted that Father remained “incarcerated in Louisiana.” As a result of these and other findings, the court ordered that D.A. and C.A.’s permanency plans be changed from reunification to custody and guardianship with a relative.

In November of 2015, the court held another hearing regarding D.A. and C.A.’s permanency plans. Mother and counsel for Father were present at the hearing, and Father, who was still incarcerated, participated by telephone. The court ultimately ordered that D.A. and C.A.’s permanency plans be changed to custody and guardianship by a non-relative. The Department, in April of 2016, filed petitions for guardianship of D.A. and C.A., and the court held a hearing on the Department’s petitions in October of 2016.

At that hearing, Maggie Swink, one of the Department’s assigned in-home services workers for D.A. and C.A., testified that, during her time as the Children’s caseworker, the Department provided Mr. R. and Ms. D. with various in-home services, including weekly visits, assisting with clothing and food for the Children, offering referrals for therapy, and working with the couple on parenting techniques. Ms. Swink also testified that she contacted Father regarding placement for the Children and that Father provided two potential resources: his mother and a “fictive relative that he called a cousin who was living in California.” Ms. Swink could not locate Father’s “cousin” but did manage to locate his mother, who indicated that she was not willing to be a resource at that time. Ms. Swink also reported that she tried to communicate with Father on other occasions and that she “sent him court reports.”

Hadassah Freed, who replaced Ms. Swink as the Children’s caseworker in August of 2014, testified that Father was in prison the whole time she was his caseworker, that she only spoke with him “two or three times,” and that he tried to contact her only one time. Ms. Freed also testified that she mailed “every service agreement” to Father but never received a signed service agreement in return. When asked about Father’s phone contact with the Children, Ms. Freed responded that “it wasn’t frequently.”

She also reported that Father informed her that he had family in the United States and that his mother was “available in Mexico.” She had “phone conversations” with his family in the United States, and she contacted the International Social Services regarding his mother. The International Social Services completed a home study with Father’s mother, which, according to Ms. Freed, had been “favorable.” Ms. Freed left the Department in April of 2015, before she could follow up on any of these resources.

Following Ms. Freed’s departure, Kimberly McKay was assigned as D.A. and C.A.’s caseworker. Ms. McKay reported that she made several attempts to reach Father by phone but was unable to do so. She also sent several service agreements to Father for him to sign, but Father never sent any back. Ms. McKay also spoke with Father’s mother about “possibly coming here to the United States ... to care for the children,” but she was “denied her visa to the United States.” Ms. McKay stated that she later investigated Father’s niece in Arizona as a potential resource, but the niece did not take the appropriate steps to initiate the process of becoming a resource. She also investigated Father’s “cousin” in California and discovered that he was in the country illegally and without a known address.

In the meantime, D.A. and C.A.’s foster parents informed the Department that they could no longer care for the Children. In September of 2015, the Children were moved into the care of a new foster parent, Melanie R., with whom they now live. Ms. R. testified that the Children’s adjustment into her home had gone “extremely well,” that they loved school and reading, and that they were involved in numerous activities, including soccer and Girl Scouts. Ms. R. also testified that the Children regularly attended therapy and that she had not seen any behavioral problems with the Children since they moved into her home. She added that the Children had requested that they not be addressed by their birth names (D.A. goes by “S.” and C.A. goes by “M.”). When asked about long-term plans for the Children, Ms. R. responded that “they’re going to be adopted by me.”

Regarding the Children’s relationship with Father, Ms. R. testified that the Children had been speaking with him by phone “less than once a month” but that the conversations had become more frequent in recent months. When Father and the Children spoke, there was “a language barrier” because Father spoke to the Children in Spanish, which neither child can speak fluently. Ms. R. reported that, during one conversation, Father suggested that he be allowed to live with her and the Children after his release.

After their permanency plans had been changed to adoption, D.A. and C.A.’s case was transferred to Susan Lonergan, a case manager with the Department’s adoptions unit, in June of 2016. Ms. Lonergan testified that she conducted in-home visits with Ms. R. and the Children at least once a month and that she had no concerns about the Children’s care under Ms. R. She reported that the Children were “always clean” and “always appropriately dressed” and that they were “happy” and “appear comfortable.” According to Ms. Lonergan, the Children never expressed an interest in speaking with Father. Ms. Lonergan also testified that she made frequent attempts to reach Father’s case manager in prison but that “they never call back.” She also stated that she sent several documents to Father but that she did not receive any response.

Lisa Cammauf, a family support worker with the Department, testified that she had been assigned D.A. and C.A.’s case in November of 2014 and that she had worked with them ever since. Ms. Cammauf reported that she had been involved in several “team decision meetings” in which Father participated by telephone and that she had assisted in answering questions that he had regarding the Children. During one meeting, she told Father that his ability to be a resource for the Children was limited because he was in prison, to which Father responded that “when he gets out, no matter what, [D.A. and C.A.] are his children” and “he will do everything he can to come back and... get his kids.” Father reiterated this sentiment at a subsequent meeting in which he again participated by telephone.

Ida Johnson, a family therapist, testified that she had been treating D.A. and C.A. since July of 2014. Ms. Johnson reported that the Children had behavior problems when they first came into her care, including stealing, lying, wetting the bed, and fighting with their siblings. She attributed the Children’s behavioral issues in part to the instability of their home life and having to continually adjust to new surroundings.

Regarding D.A. and C.A’s current situation, Ms. Johnson reported that the Children had adjusted “very well” to life with Ms. R.; that Ms. R. was “very committed” to the Children’s therapy; and, that Ms. R. and the Children were “very bonded” and “very affectionate.” She further stated that the Children were “making significant progress adjusting to their new home” and that they “appear happy and comfortable with their surroundings.”

Father testified by telephone from prison, admitting that he is “an illegal alien” and that, on at least two occasions, he had entered the United States illegally. According to Father, it was his last entry into the United States, which occurred in December of 2013, that resulted in his being incarcerated. He also stated that he would not be released until July of 2017, at which time he would be deported to Mexico. Father asserted that he was not to blame for “everything that’s happened” and that he loved his Children and wanted to do “absolutely everything possible to be with them.” He also claimed that after his deportation he would “find a way to come back” but that if he could not “God will bless them anyway.” Father stated that he had not seen D.A. or C.A. since 2012.

As to resources available to him, Father testified that his mother had been willing to care for the Children but that she had passed away prior to the hearing. He also reported that he had a cousin in California but that he did not know the cousin’s name. As to the Department’s efforts in providing services, Father testified that he and the Department had “had meetings;” that the Department told him that there were papers he needed to sign; that the Department had sent him letters “all about court hearings, meetings;” and, that the Department sent him updates on the Children.

At the close of the hearing, the court issued a written order terminating Father’s parental rights and granting the Department the authority to consent to D.A. and C.A.’s adoption. In so doing, the court made the following findings:

The Juvenile Court finds after giving primary consideration to the health and safety of [D.A. and C.A.] and consideration to each of the relevant statutory factors, it is in the best interests of each minor child.. .to terminate the parental rights of [Father.]... He is not able to provide a safe and healthy environment for the children. [Father], has been incarcerated in a federal prison since December 2013, and is due to be deported to Mexico upon his release in July 2017, nine months from this hearing. He entered the U.S. illegally resulting in his incarceration. This is his second incarceration for illegal entry, and this second time he was incarcerated for transporting other illegal immigrants into the United States. He has not seen his children since sometime in 2012.... There has been some contact by telephone, once a week approximately these past few months.... The father has not provided care for his children in approximately four years.
[D.A. and C.A.] want to remain in the care of their current foster mother who is an adoptive resource. They have adjusted well to their home and are in a stable and nurturing environment.
The father is not in any better circumstance than when the children were placed in foster care in July 2014, 26 months ago, or even 11 months prior to that date when the mother asked [Mr. R.] to take her five children.
The Court finds that pre-placement services were not offered to the father because he was incarcerated in a federal prison in Louisiana beginning in December 2013.
* * *
The Department was able to locate [Father] at the federal prison and discussed with him by telephone the children’s placement into foster care. In response to the request of the Department, [Father] provided the names of paternal relative residing in Mexico and [a] fictive relative, first name only, in the United States. The Department attempted to contact the relative by written correspondence, but at least initially, the paternal grandmother was not able to be a resource.
The Court finds that the extent, timeliness, and nature of the services offered to [Father] was reasonable given his out of state incarceration during the entire time the children were in foster care. The father was included by telephone in two Team Decision Making meetings: May 2015 and in February 2016.... The Department secured the assistance of interpreters and translators to ensure meaningful communication with [Father], The Department sent written documents, service agreements, letters and court orders, to [Father] in both English and Spanish.
* * *
Because the father was incarcerated.. .in federal prisons, not to be released until July 2017, but to be deported back to Mexico upon his release, any further attempts at reunification services to him were prohibitive and futile.
This Court finds that the Department has fulfilled its obligations under the agency service agreements with the parents, but that neither parent met its obligations in full under the service agreements. The Department attempted to enter into service agreements with the father, who did not return any document signed.... Although the father did not return a signed agreement to the Department, he did contact the Department by phone to confirm receipt of the first service agreement. The Department discussed with him by telephone service plans and obligations and court orders. At no time did he state to the Department that he did not understand what had been sent or explained to him about his children.
* * *
The Court finds that the father.. .is not a resource for his children. He indicated in a letter to the Department that his plan was to take the children to Mexico once established there. He also stated in both May 2015 and February 2016 that he was “going to get” his children, even if it meant his entering into the United States again illegally.
The Court finds that the Department made reasonable efforts to attempt to maintain regular contact with the father by phone and mail service.... The Department made regular attempts to speak with him and his case manager. The Department attempted to arrange a translation service (“Language Link”) for the father (who speaks some English but [D.A. and C.A.] have some difficulty understanding him, and the foster mother does not speak Spanish) to facilitate communication with the children but the prison would not permit the service.
Contact between the father and foster mother, while feasible, has been minimal.... The father has been inappropriate. He asked the foster mother during one phone call to allow him to live with her when he is released from prison. She told him no.
The Court finds that the father has not contributed financially to a reasonable part of the child’s care and support.
The Court finds that there has not been any evidence presented that the father has a disability that renders [him] consistently incapable of caring for the children’s immediate and ongoing physical and psychological needs for long periods of time.
This Court finds that additional services would not be likely to bring about a lasting adjustment so that the children could be returned to the father within an ascertainable time not to exceed 18 months from the date of placement. The children have been in care over 26 months. The children have been out of the care of the father, for over an estimated four years.
* * *
This Court finds that [D.A. and C.A.] have adjusted to their community, foster home, and school. The Court further finds that there are no known or reasonably foreseeable negative feelings demonstrated by the children regarding the severance of the parent-child relationship and that the likely impact of the termination of parental rights on each child’s well-being is positive.
Recently, the girls started to call themselves by different names.... [They] made this decision independently. It is apparent that the girls are comfortable in their environment, that they are well cared for, and that they have a loving relationship with [Ms. R.]
* * *
This Juvenile Court further finds in consideration of In re: Adoption/Guardianship of Rashawn H., 402 Md. 477 [937 A.2d 177] (2007) that continuation of the parental relationship of the father is not in the best interests of the children... due to exceptional circumstances that exist that make a continuation of the parental relationship detrimental to the best interests of the children, [D.A. and C.A.] As discussed infra, the father has not seen his children in approximately four years due to being incarcerated for a second illegal entry into the United States and will be deported back to Mexico in July 2017.

STANDARD OF REVIEW

Our review of the juvenile court’s decision to terminate Father’s parental rights involves three interrelated standards: (1) a clearly erroneous standard, applicable to the juvenile court’s factual findings; (2) a de novo standard, applicable to the juvenile court’s legal conclusions; and (3) an abuse of discretion standard, applicable to the juvenile court’s ultimate decision. In re Yve S., 373 Md. 551, 586, 819 A.2d 1030 (2003). In other words, “when the appellate court views the ultimate conclusion of the [juvenile 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.” Davis v. Davis, 280 Md. 119, 234, 372 A.2d 231 (1977). An abuse of discretion occurs when the court’s decision is “ Veil removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” In re Adoption/Guardianship No. 3598, 347 Md. 295, 313, 701 A.2d 110 (1997) (quoting North v. North, 102 Md.App. 1, 14, 648 A.2d 1025 (1994)).

That said, “our function, in reviewing [the juvenile court’s] findings, is not to determine whether, on the evidence, we might have reached a different conclusion.” In re Adoption No. 09598 in the Circuit Court for Prince George’s County, 77 Md.App. 511, 518, 551 A.2d 143 (1989). “Rather, it is to decide only whether there was sufficient evidence—by a clear and convincing standard—to support [the court’s] determination that it would be in the best interest of [the child] to terminate the parental rights of [the parent].” Id. In making that decision, “we must assume the truth of all the evidence, and of all of the favorable inferences fairly deducible therefrom, tending to support the factual conclusion of the trial court.” Id. (citation omitted). And, “in a case involving termination of parental rights, the greatest respect must be accorded the opportunity [the trial court] had to see and hear the witnesses and to observe their appearance and demeanor.” In re Adoption/Guardianship Nos. 2152A, 2153A, 2154A in the Circuit Court for Allegany County, 100 Md.App. 262, 270, 641 A.2d 889 (1994) (citations and quotations omitted). “Where the best interest of the child is of primary importance, ‘the trial court’s determination is accorded great deference, unless it is arbitrary or clearly wrong.’ ” Id. (citation omitted).

DISCUSSION

Father argues that the circuit court erred in granting the Department’s petition and terminating his parental rights. This is because “the record fails to establish that retaining the parental relationship would be detrimental to the children’s best interests.” He also maintains that “the Department did not do enough to provide him with services during his incarceration” and that “the services agreements did not meaningfully outline obligations for [Father] to complete.” Finally, he avers that, although D.A. and C.A. “may have adjusted well with their pre-adoptive family,” the existence of a bond between the Children and their foster family “cannot trump the father’s liberty interest in maintaining his parental relationship” and “cannot be a dispositive consideration when evaluating whether parental rights should be terminated[.]”

The State counters that the court “properly found that exceptional circumstances justified a termination of parental rights based on its review of the factors set forth in § 5-323(d) of the Family Law Article,” which, according to the State, permits a court to “terminate a parental relationship if the court finds by clear and convincing evidence that termination is in the child’s best interests.” The State posits that the Children have a right to a stable environment and that the court’s decision “properly promotes the [Children's best interests by providing them with a stable and permanent adoptive home which will meet their emotional and physical needs.”

The right of a parent to raise his child, “recognized by constitutional principles, common law and statute, is so fundamental that it may not be taken away unless clearly justified.” In re Adoption Guardianship No. 10941 in the Circuit Court for Montgomery County, 335 Md. 99, 112, 642 A.2d 201 (1994). And, “[w]hen the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.” Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). “The consequences of this drastic and permanent severing of the strongest and basic natural ties and relationships has led the Legislature and this Court to make sure, as far as possible, that adoption shall not be granted over parental objection unless that course clearly is justified.” Walker v. Gardner, 221 Md. 280, 284, 157 A.2d 273 (1960).

Nevertheless, the fundamental right of a parent to raise his child “is not absolute and does not exclude other important considerations.” In re Mark M., 365 Md. 687, 705, 782 A.2d 332 (2001), For instance, “the State of Maryland has an interest in caring for those, such as minors, who cannot care for themselves.” Id. In addition, our appellate courts have long held that “the best interests of the child may take precedence over the parent’s liberty interest in the course of a custody, visitation, or adoption dispute.” Boswell v. Boswell, 352 Md. 204, 219, 721 A.2d 662 (1998).

In harmonizing these competing interests, the Court of Appeals has recognized “a substantive presumption—a presumption of law and fact—that it is in the best interest of children to remain in the care and custody of their parents.” In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 495, 937 A.2d 177 (2007). “That presumption, however, has limits, and the right of a parent to make decisions regarding the care, custody, and control of their children may be taken away where (1) the parent is deemed unfit, or extraordinary circumstances exist that would make a continued relationship between parent and child detrimental to the child, and (2) the child’s best interests would be served by ending the parental relationship.” In re Adoption/Guardianship of Jasmine D., 217 Md.App. 718, 733, 94 A.3d 837 (2014) (citation omitted).

In short, the presumption that it is in a child’s best interests to remain in the care and custody of his parent “may be rebutted upon a showing either that the parent is ‘unfit’ or that ‘exceptional circumstances’ exist which would make continued custody with the parent detrimental to the best interest of the child.” In re Rashawn H., 402 Md. at 495, 937 A.2d 177. Therefore, “in all cases where the interests of a child are in jeopardy the paramount consideration is what will best promote the child’s welfare, a consideration that is of ‘transcendant importance.’ ” In re Adoption/Guardianship No. A91-71A, 334 Md. 538, 561, 640 A.2d 1085 (1994) (citation omitted). In other words, “the controlling factor in adoption and custody cases is not the natural parent’s interest in raising the child, but rather what best serves the interest of the child.” In re No. 10941, 335 Md. at 113, 642 A.2d 201; see also In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 111, 8 A.3d 745 (2010)(“[W]hile the parental rights are recognized ... the child’s best interest standard trumps all other considerations.”) (footnote omitted).

“In determining the child’s best interests, the juvenile court is required to consider the statutory factors in [Maryland Code, Family Law] FL § 5-323(d).” In re Jasmine D., 217 Md.App. at 734, 94 A.3d 837. Moreover, “[i]n cases where parental rights are terminated, it is important that each factor be addressed specifically not only to demonstrate that all factors were considered but also to provide a record for review of this drastic measure.” In re Adoption/Guardianship No. 87A262, 323 Md. 12, 19-20, 590 A.2d 165 (1991). If, based on these factors, the court finds by clear and convincing evidence that the child’s best interests are served by a termination of parental rights, the court may terminate said rights. In re Jasmine D., 217 Md.App. at 734, 94 A.3d 837. As the Court of Appeals has explained:

The court’s role in TPR cases is to give the most careful consideration to the relevant statutory factors, to make specific findings based on the evidence with respect to each of them, and, mindful of the presumption favoring a continuation of the parental relationship, determine expressly whether those findings suffice either to show an unfitness on the part of the parent to remain in a parental relationship with the child or to constitute an exceptional circumstance that would make a continuation of the parental relationship detrimental to the best interest of the child, and, if so, how. If the court does that—articulates its conclusion as to the best interest of the child in that manner—the parental rights we have recognized and the statutory basis for terminating those rights are in proper and harmonious balance.

In re Rashawn H., 402 Md. at 501, 937 A.2d 177 (footnote and emphasis omitted).

The primary statutory factor the court must consider before terminating parental rights is “the health and safety of the child[.]” FL § 5-323(d). The other factors the court must consider are, in relevant part: (1) the nature and timeliness of the services offered by the Department to the parent; (2) the extent to which the parent has fulfilled his obligations under a social service agreement; (3) the parent’s efforts in adjusting his circumstances, condition, or conduct to make it in the child’s best interest to be returned to the parent’s care; (4) the extent to which the parent has maintained regular contact with the child, the child’s caregiver, and the Department; (5) the parent’s financial contributions to the child’s well-being; (6) whether additional services would likely bring about a lasting parental adjustment so that the child could be returned to the parent within a reasonable time not to exceed 18 months from the date of placement unless the court finds that it would be in the child’s best interests to extend the time period; (7) whether the parent has abused or neglected the child or another minor and the seriousness of the abuse or neglect; (8) the child’s emotional ties with and feelings toward the parent and others who may affect the child’s best interests; (9) the child’s adjustment to community, home, placement, and school; and (10) the child’s feelings about severing the parent-child relationship and the likely impact this severance would have on the child’s well-being. Id.

In addition to being mandatory considerations pri- or to a termination of parental rights, the factors outlined in FL § 5-323 also serve “as criteria for determining the kinds of exceptional circumstances that would suffice to rebut the presumption favoring a continued parental relationship and justify termination of that relationship.” In re Rashawn H., 402 Md. at 499, 937 A.2d 177. Other criteria relevant to an exceptional circumstances determination include: the length of time that the child has been with his adoptive parents; the strength of the bond between the child and the adoptive parent; the relative stability of the child’s future with the parent; the age of the child at placement; the emotional effect of the adoption on the child; the effect on the child’s stability of maintaining the parental relationship; whether the parent abandoned or failed to support or visit with the child; and, the behavior and character of the parent, including the parent’s stability with regard to employment, housing, and compliance with the law. In re No. A91-71A, 334 Md. at 562-64, 640 A.2d 1085.

Viewing the court’s decision in light of the above legal principles, we hold that the juvenile court in the instant case did not err or abuse its discretion in terminating Father’s parental rights. We are persuaded that the presumption favoring a continued parental relationship between Father and the Children was rebutted by clear and convincing evidence in the record.

Father resided in the United States illegally around the time D.A. and C.A. were born and was ultimately deported in 2010 following a domestic violence incident involving the Children’s Mother. Rather than adjust his circumstances and make legal efforts to obtain entry into the United States, Father, by his own admission, made another illegal entry into the United States in 2013, this time bringing other individuals with him. That resulted in his arrest and eventual incarceration in federal prison, where he remained through the date of the hearing on October 11, 2016.

Thus, for the vast majority of the Children’s lives, Father made little to no effort in adjusting his circumstances to make the Children’s living situation better or become more involved in the Children’s lives. Although his incarceration made such adjustments difficult, that incarceration did not commence until December of 2013, which was at least a year after he last saw the Children. During that time, the Children were subjected to unacceptable living conditions, neglect, and possible sexual abuse while in the care of their Mother. Father, according to the evidence, did nothing to remedy that situation. In fact, other than Father’s claim that he last saw the Children in 2012, there is little indication that he was even involved in the Children’s lives at any time prior to his incarceration.

Father maintained minimal contact with the Children during his incarceration, and any sort of parental bond was virtually non-existent at the time of the hearing. Not surprisingly, the Children expressed no real desire to speak with him or maintain the relationship. Other than Father’s insistence that he “loved” the Children, there was no indication of any meaningful bond with the Children. On the other hand, the Children had developed a strong bond with their foster mother, Melanie R., with whom they had lived for over a year. The Children were adjusting extremely well in her care, were safe and healthy, and were excited about the prospect of being adopted. While in Ms. R.’s care, the Children did well in school, took part in activities, and participated in therapy, which their therapist indicated was progressing well.

Father argues that the record fails to establish how retaining the parent-child relationship would be detrimental to the Children’s best interests. We disagree. Not only did he show a consistent disregard for the law and a general inability and/or unwillingness to provide a safe and stable environment for the Children prior to his incarceration, he also showed a general lack of regard for the Children’s best interest during their time in foster care. He stated several times that “no matter what” he was “going to get” the Children, despite the fact that he had no legal right to do so, and he even expressed a desire to live with Ms. R. and the Children following his release from prison, even though neither Ms. R. nor the Children suggested that such an arrangement was feasible or desirable. Father also suggested that the Children could live with his “cousin” in California, even though he did not know the cousin’s name or present any indication that this “cousin” was capable of caring for the Children.

At the time of the hearing, Father was incarcerated and would not be released until July of 2017, nine months after the hearing and almost three years after the Children’s date of placement. Moreover, Father was to be deported following his release, and there was no indication as to when or whether he would be able to come back to the United States to care for the Children. Despite his insistence that he planned to reenter the United States legally, Father offered no explanation for how he would manage to do so. In fact, Father admitted that he might not be able to come back into the country at all.

Father has taken no discernable steps toward ensuring that he would become more active in the Children’s lives or how he planned to care for the Children following his release from prison and eventual deportation. Father offered no feasible resources available to him in the United States, no explanation of what he would do upon his release or how he would manage to reenter the United States, and no evidence that he was capable of even sustaining a relationship with the Children, much less providing them with a safe and healthy environment.

Meanwhile, both D.A. and C.A. expressed an eagerness to move on with their lives. And, after having been subjected to substandard living conditions for three years and then shuttled through the foster-care system for the next two, the Children were finally living in a stable, supportive, and healthy home with someone who is qualified and willing to adopt them. Clearly, any impediment to the Children’s relationship with Ms. R., including maintaining a parent-child relationship between the Children and Father, would be detrimental to the Children’s best interest. Conversely, severing what little relationship the Children and Father have will likely have no negative impact on the Children.

Father argues that, although the Children may have adjusted well to life with Ms. R., that fact cannot trump his liberty interest in maintaining his parental relationship with the Children. He also argues that the length of time they were out of his care cannot be treated as dispositive. While we agree, generally, with those statements, Father has conflated the issues and misrepresented the court’s determination. The court did not terminate Father’s parental rights based solely on the Children’s relationship with Ms. R. or the amount of time they were in foster care. Rather, these were but two of many factors that the court considered in determining that it was in the Children’s best interests to terminate their relationship with Father. And, as previously stated, a child’s best interests do trump the parent’s liberty interest in maintaining his relationship with a child. For these reasons, Father’s reliance on In re James G., 178 Md.App. 543, 603-04, 943 A.2d 53 (2008)(holding that the court’s changing of a child’s permanency plan was erroneous because the court failed to address the child’s best interest while giving “paramount consideration” to the length of time the child was out of the parent’s care); Washington County Dept. of Soc. Serv. v. Clark, 296 Md. 190, 197, 461 A.2d 1077 (1983)(finding unconstitutional a Maryland statute that created a legal presumption that termination is in the best interest of the child when the child had been in foster care for two or more continuous years); and, In re Adoption/Guardianship of Alonza D., Jr., 412 Md. 442, 468, 987 A.2d 536 (2010)(holding that the court’s termination of parental rights was erroneous because “the judge focused primarily on the length of time [the children] had been in foster care and the apparent bond that had developed between [the foster parent] and the children” while at the same time failing to show “how a continued parental relationship would have caused a detriment to the children[.]”) is misplaced.

Father also contends that the Department “did not do enough to provide him with services during his incarceration” and that “the services agreements did not meaningfully outline obligations for [him] to complete.” Again, we disagree. As the court explained, pre-placement services were not offered to Father because he was incarcerated. When the Department spoke with Father about possible relative resources, he provided several names, all of which were investigated and ruled out by the Department. Moreover, any provision of services toward reunification would have been futile given that Father was incarcerated the entire time the children were in foster care. Nevertheless, the Department still provided the following services: including Father, via telephone, in certain meetings; securing the assistance of interpreters and translators; sending written documents, service agreements, letters, and court orders to Father in both English and Spanish; discussing service plans and court orders with Father; maintaining contact with Father by phone and mail service; and, making regular attempts to speak with Father and his case manager. The fact remains that no amount of services would have alleviated the primary obstacle to Father’s ability to care for the children, namely, his incarceration and impending deportation. Under these circumstances, we are not persuaded that the juvenile court’s determination that the Department’s provision of services was reasonable was clearly erroneous.

Finally, Father avers that the evidence showed only that he could not take custody of the Children immediately, which he claims did not “have a direct bearing on whether the parental relationship should remain intact.” On this point, In re Adoption/Guardianship No. J970018, 128 Md.App. 242, 737 A.2d 604 (1999) is instructive. There, the appellant, James L., fathered a child in 1991 while in prison. Id. at 245, 737 A.2d 604. At the time of the child’s birth, James was serving a sentence of twenty years to life for first-degree murder. Id. at 246, 737 A.2d 604. In 1997, the Department of Social Services filed a petition to terminate James’ parental rights, and a hearing on the petition was held in 1998. Id. at 246-47, 737 A.2d 604. The juvenile court ultimately ordered James’ parental rights terminated because of his incarceration. Id. The court noted that, while James was “coming up for” parole in “a couple of years,” it was possible “that he could be in jail for the rest of his natural life.” Id. at 249, 737 A.2d 604.

On appeal, James argued that the court erred in terminating his parental rights based on his incarceration. Id. at 245, 737 A.2d 604. We disagreed, explaining that “[g]iven the appropriate set of factual circumstances.. .incarceration may indeed, under the facts of a particular case, be a critical factor in permitting the termination of parental rights, because the incarcerated parent cannot provide for the long-term care of the child.” Id. at 252, 737 A.2d 604. Applying this principle to the facts of that case, we held that the juvenile court “was acting in the best interests of [the child] in terminating the parental rights of [James].” Id. at 253, 737 A.2d 604. We reasoned that such a finding was not clearly erroneous because, had James’ parental rights remained intact, the child’s status would be “placed in suspended animation until 2001 or even beyond waiting for [James’] potential for parole to be realized, an occurrence that the trial court noted may never come to be.” Id. at 253, 737 A.2d 604.

This case presents a similar situation. Despite Father’s claims that he planned to legally come back to the United States following his deportation, he recognized that his reentry may never happen. Therefore, not only was he unable to take care of the Children immediately, or even in the immediate future, there exists the very real possibility that he may never be able to enter the United States legally. This distinct possibility is made even more probable in light of the fact that Father made no known efforts at securing legal entry in the years between the Children’s birth and his incarceration in 2013. As was the case in In re No. J970013, maintaining Father’s parental rights under these circumstances would have placed the Children’s status in a state of suspended animation until a future date that may never occur. We cannot say, therefore, that the trial court was clearly erroneous or abused its discretion in finding that terminating Father’s parental rights was in the Children’s best interest. See In re No. 10941, 335 Md. at 106, 642 A.2d 201 (discussing Title 5 of the Family Law Article as being based on the premise “that it is in a child’s best interest to be placed in a permanent home and to spend as little time as possible in foster care.”).

JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . Mother consented to the adoption of D.A. and C.A, and voluntarily relinquished her parental rights. She is not a party to this appeal.

      . The Department also filed custody/guardianship petitions regarding the other three children.

      . The record is unclear as to whether Father’s counsel made any arguments on his behalf.

      . Father testified through an interpreter.

      . Appellant argues that the court "clearly erred when it found that [appellant] acted inappropriately when he asked the foster mother if he could come live with her after he reenters the United States[.]” We disagree, as such a suggestion, under the circumstances, was clearly inappropriate. See www.merriam-webster.com/dictionary/inappropriate (defining "inappropriate” as “not right or suited for some purpose or situation”).

      . Father’s deportation status in this case is one factor in the best interests’ analysis because it impacts his ability to care for the Children and to provide them with a safe and healthy environment now or in the foreseeable future. But deportation of an undocumented parent in and of itself is not a basis for termination of parental rights of otherwise fit parents.

      , Although appellant’s mother was ultimately identified as a potential resource, she died before the hearing.

      . Specifically, James claimed that the juvenile court erred "in finding that [his] incarceration was tantamount to a disability thus rendering him incapable of providing adequate care for his son[.]” In re No. J970013, 128 Md.App. at 245, 737 A.2d 604. Although we agreed that the incarceration of a parent does not necessarily constitute a disability, we found no support for James’ claim in the record. Id. at 252, 737 A.2d 604.


source: Caselaw Access Project

author: Raker, J.

license: Public Domain

text:
    168 A.3d 1104
    Tavon FULLWOOD v. STATE of Maryland
    No. 2003,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    August 31, 2017

      Argued by: C. Justin Brown (Brown & Nieto, LLC, on the brief), Baltimore, MD, for Appellant.
    Argued by: Ryan R. Dietrich (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

      Panel: Meredith, Friedman, Irma S. Raker (Senior Judge, Specially Assigned), JJ.
   Raker, J.

Tavon Fullwood, appellant, was convicted by a jury in the Circuit Court for Baltimore County on April 19, 2002, of attempted first-degree murder, first-degree rape, first-degree sexual offense, and attempted sodomy. In this post-conviction appeal, appellant presents one question for our review:

“Did the post-conviction court abuse its discretion in denying appellant’s petition for post-conviction relief on the grounds that defense counsel did not provide ineffective assistance in failing to investigate and call an expert witness to testify regarding the evidence of sexual assault, and that this contention ‘has been finally litigated on appeal?’ ”

We shall hold that defense counsel’s failure to investigate and call an expert witness to testify regarding the evidence of sexual assault did not constitute ineffective assistance and shall affirm the judgment.

h-1

Appellant was convicted by a jury on April 19, 2002, m the Circuit Court for Baltimore County of attempted first-degree murder, first-degree rape, first-degree sexual offense, and attempted sodomy. The court sentenced appellant to a term of life imprisonment for the attempted murder; a consecutive term of life imprisonment for the rape, with the balance suspended; a concurrent term of life imprisonment for the sexual offense; and a concurrent term of ten years’ imprisonment for the attempted sodomy. Appellant filed a timely appeal to the Court of Special Appeals which affirmed the conviction in an unreported opinion on June 7, 2004. Fullwood v. State, September Term 2002, No. 2197 (filed June 7, 2004). The Court of Appeals denied appellant’s petition for writ of certiorari on September 21, 2004. On November 7, 2012, appellant filed a Petition for Post Conviction Relief. The State filed an Answer on December 3, 2013. Judge Ruth A. Jaku-bowski held the post-conviction hearing on December 19, 2013 and continued and concluded it on May 27, 2015. Judge Jakubowski denied the post-conviction Petition on September 3, 2015. Appellant filed a timely Application for Leave to Appeal and this Court granted appellant’s Application on December 1, 2016.

Because appellant is arguing in this appeal that his counsel provided ineffective assistance by failing to investigate and call an expert witness to testify regarding the evidence of sexual assault, we set out the relevant factual background: On March 15, 2001, at around 3:00 a.m., Baltimore County Police found Ms. Luzer at her apartment. Police responded to a call from residents of the apartment located below Ms. Luzer. The neighbor testified she heard screams, woke up her boyfriend, and then called the police. She heard window blinds moving and thought she saw a person’s shadow drop from above and flee. The boyfriend also heard screaming but thinks he saw two shadows fall past the apartment. Officers found Ms. Luzer naked and face down on her bed. She was covered in blood and had been stabbed several times in the chest, torso, and arms. While waiting for an ambulance to arrive, an officer administered first aid to Ms. Luzer and asked if she had been sexually assaulted. She said no. A detective on the scene requested that the sexual assault forensic examiner collect evidence.

Police discovered potential blood stains along the handrail of the outside hallway which led from Ms. Luzer’s apartment building to the apartment building where appellant’s cousin, Melvin Fullwood, sometimes resided with his girlfriend, Chan-tal Veanie, and their three-year-old daughter. A detective questioned residents who lived adjacent to the handrail, including Melvin, who answered the door at Veanie’s apartment. Because Melvin’s statement was inconsistent with that of other neighbors, the detective sought a search warrant for Veanie’s apartment. Veanie later consented to the search, and both she and Melvin cooperated with police. Based on the information they gave, an arrest warrant for appellant was issued and appellant turned himself in to police headquarters. Melvin and appellant’s account of the night differ. Melvin recounted being at Veanie’s apartment with appellant, Both Melvin and Veanie recall that appellant had an angry conversation with someone on the telephone shortly after Veanie returned home at 11:30 p.m. with her daughter, then appellant left the apartment, and returned between 2:45 and 3:00 a.m. Melvin answered the door and appellant entered screaming and yelling about being in a fight with “some guys” and Melvin saw blood on his hands. According to Melvin, appellant showered upstairs, they argued, appellant left, returned, and left again. Veanie and Melvin testified they did not clean the upstairs bathroom.

Soraya Sina, a Sexual Assault Forensic Examiner nurse (SAFE witness), testified that she examined Ms. Luzer in the Shock Trauma Unit. The examination was interrupted when Ms. Luzer’s blood pressure dropped and she had to be rushed to surgery. Ms. Sina later continued the examination where she determined, and later testified at trial, that Ms. Luzer had contusions, tears, and abrasions to her vagina; tears and swelling around her anus; and bruising, blood, and a small laceration three to four inches inside her vaginal cavity. There was some blood and tearing on her hymen, but it was intact. Ms. Sina also conducted a “pubic combing” in an effort to collect trace evidence or semen. There were no condoms at the scene and no semen was detected on any of the items tested,

Appellant testified in his own defense at the trial. He admitted to being in Ms. Luzer’s apartment on the night of the attack. Appellant testified that he was at Veanie’s apartment with Melvin and, after Veanie fell asleep with her daughter, Melvin asked him to come with him to what turned out to be the victim’s apartment. Appellant said that he followed Melvin into Ms. Luzer’s apartment and waited in the living room while Melvin went back into Ms. Luzer’s bedroom. Appellant then heard muffled noises and screams and when he entered the bedroom, he saw Melvin on top of Ms. Luzer’s naked body. Melvin stabbed Ms. Luzer, appellant wrestled with him for the knife, and then Melvin left the apartment by jumping out of the window. Appellant testified that he went to the kitchen to call 911 but decided not to call because he was covered in blood. Appellant heard someone at the door and because he thought it might be the police he left through the same window as Melvin. Appellant went back to Veanie’s apartment where Melvin was showering upstairs, they argued, Melvin gave appellant clothes to change into, and he left.

DNA evidence from Ms. Luzer’s apartment confirmed appellant’s presence during the attack. No fingerprints were determined conclusively to belong to Melvin, although appellant testified that Melvin wore gloves. Multiple blood samples recovered from the upstairs bedroom of Veanie’s apartment tested positive for Ms. Luzer’s DNA. An empty can of Ajax cleaner was found in the upstairs bathroom by forensic examiners and they noticed a strong odor of cleaning solution as well.

The State advanced a theory of the case with rape as the motive for the attack and the attempted murder an effort to get rid of the witness. At trial the defense did not challenge the occurrence of a sexual assault but focused its defense on the theory that Melvin committed the crimes, not appellant.

The jury convicted appellant and appellant filed a direct appeal, which this Court affirmed in an unreported opinion filed on June 7, 2004. Fullwood v. State, September Term 2002, No. 2197 (filed June 7, 2004). Approximately ten years later, appellant filed a Petition for Post Conviction Relief. Appellant retained a SAFE expert with experience conducting, reviewing, and interpreting the results of SAFE examinations. After reviewing the State’s SAFE witness’s examination and testimony, the expert made several findings that questioned the credibility of the evidence. The expert was critical of the manner in which the examination had been done, questioned whether the photographs taken by Ms. Sina showed the injuries that Ms. Sina testified that she had observed, offered alternative explanations for why some of the indications of injury may have been present, and questioned the interpretations drawn by Ms. Sina. Specifically, appellant’s SAFE expert testified at the post-conviction hearing that Ms. Sina failed to photograph certain injuries and failed to include other injuries in her written report that she later testified to at trial. Additionally, appellant’s expert testified that it was possible one of the injuries may have been caused by the insertion of the catheter at shock trauma, the Teledyne blue dye used during the examination may have been misapplied to certain areas that could lead to a false positive reading, and the positioning of the posterior fourchette was misidentified as being located at the five, six, and seven o’clock positions although the posterior fourchette is only at the six o’clock position. Appellant’s SAFE expert acknowledged that she was unable to conclude definitively that the injuries described and documented by Ms. Sina had not occurred and certain conclusions were limited because she could only review photographs and could not conduct a live examination of the victim.

At the post-conviction hearing, appellant’s counsel called as a witness Kenneth Ravenell, appellant’s trial counsel. He testified that he did not conduct any pre-trial investigation into the sufficiency of the State’s sex crime evidence. He acknowledged that Ms. Sina provided much of the State’s evidence as to the sexual assault and “the bulk of the State’s evidence and the rape case” depended on the credibility of the SAFE nurse. Trial counsel admitted if he had similar testimony as the SAFE expert retained for the post-conviction hearing he “absolutely” would have presented it to the jury and there was “no strategic reason” not to. Trial counsel explained how the evidence could be used to attack the credibility of the State’s case by undermining the theory that rape was the motive for the attack. Trial counsel testified as to his belief that undermining the State on one issue can dimmish its credibility on other issues.

On September 3, 2015, Judge Jakubowski denied the request for Post Conviction relief and held that appellant failed to overcome the presumption that trial counsel’s failure to investigate and challenge the state’s rape evidence was trial strategy. Judge Jakubowski provided a reasoned explanation for her ruling denying relief as to each of appellant’s allegations of error including: 1) ineffective assistance of counsel for trial counsel’s failure to challenge the rape evidence asserted by State witness, Soraya Sina; failure to investigate and cross-examine witness, Melvin Fullwood; failure to object to the introduction of the prejudicial mug shot into evidence; failure to test and present exculpatory DNA evidence at trial; failure to pursue and investigate Melvin Fullwood’s confession; 2) trial counsel’s conflict of interest stemming from his involvement with Melvin Fullwood in another case; and 3) cumulative ineffective assistance of counsel. Judge Jakubowski stated:

“Petitioner has failed to overcome the presumption that trial counsel’s actions were mere trial strategy, as required by the deficiency prong of the Strickland test. Petitioner presented insufficient evidence to indicate that the evidence and background of SAFE nurse, Sina, required further investigation. The Petitioner offers an inadequate basis as to how an expert witness called to refute Nurse Soraya would have been an effective trial strategy. Additionally, counsel testified at the Post Conviction hearing that the case centered around who had committed the crime. It should be noted that trial counsel was successful in establishing that Nurse Sina was a fact witness and not an expert witness. Challenging a prosecution witness and deciding not to call a witness are actions that are considered tactical in nature. Tactical defense decisions are within counsel’s purview.
* * *
It should also be noted that the Petitioner testified at trial that Melvin Fullwood committed the assault and he saw him on top of the victim who was naked at the time. There is no dispute that the victim was brutally attacked and nearly died. Petitioner’s claims that if expert testimony was available at trial to refute the rape charge that it would have removed motive and changed the outcome of the trial. This Court finds no merit or basis to this allegation after considering the testimony at the hearing, the trial transcript and the applicable law.”

This timely appeal followed.

II.

Before this Court, appellant argues that trial counsel rendered ineffective assistance in failing to investigate and call an expert witness to controvert the evidence of a sexual assault. Appellant argues that the court erred in denying post-conviction relief because trial counsel admitted there was no strategic reason for failing to investigate and challenge the rape evidence and Strickland requires trial counsel be reasonably informed, through investigation, before making a strategic decision. See Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant argues that trial counsel’s focus on who committed the crimes, rather than whether the crimes actually occurred, did not justify the exclusion of a defense that could undermine the credibility of the sex crime evidence. By arguing that the defenses are not mutually exclusive, appellant asserts that counsel’s decision not to consult with an expert before settling on a defense strategy was unreasonable and cannot be excused as a strategic decision. Finally, appellant argues there is a reasonable probability that the outcome of the proceeding would have been different if findings similar to those presented by the expert at the post-conviction hearing had been presented to the jury. Appellant argues this evidence would have created reasonable doubt as to whether a sexual assault occurred and would have undermined the State’s theory of the case. Appellant also argues that the rape accusations had a prejudicial spillover effect on the attempted murder charge by tainting the jury’s perception of appellant and making the jury more likely to convict on all counts.

Appellee argues that trial counsel’s failure to investigate and challenge the rape evidence was an objectively reasonable trial strategy based on the defense’s focus, not on the extent of what was done to the victim, but rather who committed the crimes against her. Appellee argues that defense counsel’s strategy was reasonably aimed at presenting a credible narrative that implicated Melvin and since there was no question that a serious crime had occurred, the question of whether the victim had, as a matter of fact, been sexually assaulted was entirely peripheral. Appellee argues that the decision not to allocate resources to hire an expert was a reasonable decision because it would not effectively refute Ms. Sina’s findings inasmuch as they were based mostly on her own recollections and observations and the exam was conducted under less than ideal circumstances because of the victim’s critical medical condition. Appellee further argues that a defense expert would provide only inconclusive evidence and incremental impeachment value and therefore may not have been presented to the jury even if one was retained. Appellee argues that challenging the sexual assault evidence would have distracted the jury and may have backfired if interpreted by the jury as an attempt to sully the victim and diminish the horror that she experienced. The State argues that strategy is evidenced at trial since defense counsel was careful not to dispute the sexual assault in front of the jury but argued vigorously before the judge in motions for judgment of acquittal that the evidence, including perceived deficiencies in Ms. Sina’s testimony, was not sufficient to support the sexual offenses.

III.

The right to effective assistance of counsel in a criminal trial is guaranteed by the Sixth Amendment to the United States Constitution, made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Strickland, 466 U.S. at 669, 104 S.Ct. 2052. It is black letter law in Maryland that a “post-conviction proceeding pursuant to the Maryland Uniform Post Conviction Procedure Act, Maryland Code § 7-102 of the Criminal Procedure Article (2001), is the most appropriate way to raise the claim of ineffective assistance of counsel.” Mosley v. State, 378 Md. 548, 558-59, 836 A.2d 678, 684 (2003).

Strickland sets forth the legal standard for determining whether there was ineffective assistance of counsel with a two-pronged test including a “performance component” and a “prejudice component.” Barber v. State, 231 Md.App. 490, 515, 153 A.3d 800, 813 (2017); State v. Jones, 138 Md.App. 178, 205, 771 A.2d 407, 423 (2001). A defendant must demonstrate that “under the circumstances, counsel’s acts resulted from unreasonable professional judgment, meaning that ‘counsel’s representation fell below an objective standard of reasonableness ....’” Jones, 138 Md.App. at 206, 771 A.2d at 424 (internal citation omitted). “To establish the requisite degree of prejudice in Maryland, the defendant must demonstrate a ‘substantial possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id. at 207-08, 771 A.2d at 424 (internal citation omitted). Both prongs must be met to show “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052.

The standard of review of the lower court’s determinations regarding issues of effective assistance of counsel “is a mixed question of law and fact.” Strickland, 466 U.S. at 698, 104 S.Ct. 2052. A reviewing court “will not disturb the factual findings of the post-conviction court unless they are clearly erroneous.” Jones, 138 Md.App. at 209, 771 A.2d at 425. Nonetheless, “a reviewing court must make an independent analysis to determine the ‘ultimate mixed question of law and fact ... [i]n other words, the appellate court must exercise its own independent judgment as to the reasonableness of counsel’s conduct and the prejudice, if any.’ ” Id., 771 A.2d at 425 (internal citations omitted).

First, we examine whether trial counsel’s decision not to investigate and call an expert witness to testify regarding the evidence of the sexual assault fell below an objective standard of reasonableness. This inquiry under the performance prong of the Strickland standard is highly deferential and a defendant “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (internal citation omitted).

Appellant argues that trial counsel’s decision not to pursue a line of defense challenging the sexual assault evidence cannot be considered a reasonable trial strategy because counsel testified at the post-conviction hearing that he had no strategic reason for his failure to investigate the sufficiency of this evidence. While testimony at post-conviction hearings can help explain tactical decisions, “a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. For this reason, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at 690, 104 S.Ct. 2052.

Trial counsel testified he could think of no strategic reason not to use expert testimony indicating the State’s evidence presented by the SAFE nurse was not enough to conclude that a sexual assault had taken place, if he had obtained it. Trial counsel’s testimony was not an explanation of tactical choices but a retrospective opinion on something he may have done in different circumstances, namely, if he had retained an expert. This speculation is susceptible to the same hindsight bias that courts caution against, particularly when accompanied with the present knowledge that the chosen strategy did not prevail. Most significantly, the performance inquiry therefore requires an objective evaluation of the reasonableness of counsel’s conduct from “counsel’s perspective at the time.” See id. at 689, 104 S.Ct. 2052.

Under this objective standard, appellant has failed to offer sufficient explanation as to why the chosen strategy, which focused on who committed the crime, rather than the particulars of the crime itself, was unreasonable. “[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigations.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. Appellant argues that pursuing both lines of defense would not be inconsistent. While pursuing multiple lines of defense may be an available strategic choice, the decision to pursue one strategy over the other may also be a reasonable strategic choice. “[Wjhen you add a weak argument to a strong argument, you weaken, not strengthen. The sum in such a case is worth less than the best of its parts. ... Your advocacy is never stronger than your weakest argument.” Herbert J. Stern & Stephen A. Saltz-burg, Trying Cases to Win In One Volume 40 (2018). An argument challenging the sexual assault may have been reasonably viewed as a weak argument and thus the strategic choice to focus squarely on a stronger argument challenging who committed the crimes was a reasonable trial strategy.

A review of the record and the circumstantial evidence of a sexual assault supports the presumption that it was reasonable to reserve argument challenging the sufficiency of the sexual assault evidence for motions for judgment of acquittal before the judge in order to present a more consistent and credible defense theory to the jury. This is especially reasonable due to the sensitivity of challenging the sexual assault when the victim clearly suffered extensive injuries, was found naked, and the defense’s theory of the case placed Melvin sitting on top of her nude body. Further, and highly significant in our view, appellant testified at trial that he heard moaning prior to entering Ms. Luzer’s bedroom and therefore attacking the sexual assault evidence may have been considered inconsistent with appellant’s testimony. Thus, appellant has failed to overcome the presumption that trial counsel’s actions can be considered sound trial strategy.

Even if trial counsel’s performance can be said to be deficient, appellant fails to meet his burden under the second prong of the Strickland test requiring prejudice be shown. Although the appellant need not show that the prejudice “more likely than not altered the outcome in the case,” there must be a “substantial possibility” that but for the prejudice, the result of the proceeding would have been different. Jones, 138 Md.App. at 207-08, 771 A.2d at 424-25 (internal citations omitted). Given that the expert’s testimony at the post-conviction hearing was inconclusive and admittedly based on an imperfect report due to the medical exigencies during the forensic exam, it is unlikely such testimony would have had a substantial effect on a jury. It is even more unlikely because of the circumstantial evidence pointing to a sexual assault and, additionally, the other undisputed life-threatening injuries suffered by the victim. Based on these facts and the evidence presented at trial, we cannot conclude that there was a substantial possibility that, but for trial counsel’s failure to investigate and challenge the State’s sexual assault evidence, the result of the proceeding would have been different. We hold that appellant was not denied effective assistance of counsel.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . Ms. Sina was employed at Greater Baltimore Medical Center. Due to Ms. Luzer’s unstable condition however, Ms. Sina examined Ms. Luzer in the Shock Trauma Unit of the hospital.