In re: Adoption/G'ship of H.W. , 460 Md. 201 ( 2018 )

In re: Adoption/Guardianship of H.W., No. 70, September Term, 2017, Opinion by Adkins, J.
FAMILY LAW — TERMINATION OF PARENTAL RIGHTS — FAMILY LAW
ARTICLE § 5-323 — EXCEPTIONAL CIRCUMSTANCES: In assessing whether to
terminate parental rights, a juvenile court must consider the statutory factors set forth in
Md. Code (1984, 2012 Repl. Vol.), § 5-323 of the Family Law Article and make findings
by clear and convincing evidence whether a parent is either unfit to remain in a parental
relationship or exceptional circumstances exist that would make a continuation of the
parental relationship detrimental to the best interests of the child such that terminating
parental rights is in the child’s best interests.
FAMILY LAW — TERMINATION OF PARENTAL RIGHTS — EXCEPTIONAL
CIRCUMSTANCES — CONSIDERATION OF NON-STATUTORY FACTORS: A
court must assess whether exceptional circumstances exist that would make a continuation
of the parental relationship detrimental to the best interests of the child according to the
statutory factors set out in Md. Code (1984, 2012 Repl. Vol.), § 5-323(d). These factors
are criteria for determining whether exceptional circumstances exist that rebut the
presumption favoring a continued parental relationship. Consideration of any non-
statutory factors must be tailored to the inquiry of whether the continued parental
relationship is detrimental to the child’s best interests. A juvenile court should closely
adhere to the statutory factors.
FAMILY LAW — TERMINATION OF PARENTAL RIGHTS — FAMILY LAW
ARTICLE § 5-323 — FACTORS PERTAINING TO CUSTODY: When terminating
parental rights pursuant to Md. Code (1984, 2012 Repl. Vol.), § 5-323 of the Family Law
Article, a juvenile court must base its assessment on the statutory factors set forth in § 5-
323(d). Consideration of exclusively custodial factors risks according equal standing to
third-party custodians, and a decision to justify terminating parental rights must focus on
the continued parental relationship, not custody. In this termination of parental rights
proceeding, the juvenile court’s inclusion of the Ross v. Hoffman, 280 Md. 172 (1977),
factors used in third-party custody disputes did not impermissibly taint its decision because
it made specific findings under each required statutory factor and its Ross findings were
substantively the same as the statutory findings.
Circuit Court for Baltimore City
Case No.: T15280012
Argued: April 6, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 70
September Term, 2017
IN RE: ADOPTION/GUARDIANSHIP OF H.W.
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
Opinion by Adkins, J.
Hotten, J., concurs and dissents.
Filed: July 16, 2018
2018-07-16
08:55-04:00
Proceedings to terminate parental rights necessitate maintaining a delicate balance
between a parent’s constitutional right to raise their children, the State’s interest in
protecting children, and the child’s best interests. Here, we return to the often-complicated
question of exceptional circumstances in the context of terminating parental rights (“TPR”)
under Md. Code (1984, 2012 Repl. Vol.), § 5-323 of the Family Law Article (“FL”). We
consider if, when assessing whether exceptional circumstances exist that make continuing
the parental relationship detrimental to a child’s best interests, a juvenile court errs by
considering custody-specific factors used to determine exceptional circumstances in third-
party custody disputes. See, e.g., Ross v. Hoffman, 280 Md. 172 (1977).
FACTS AND LEGAL PROCEEDINGS
H.W. was born in April 2012 to S.B. (“Mother”), an 18-year-old former CINA1 and
M.W. (“Father”). Father had been convicted in Connecticut seven years earlier of sexual
assault in the first degree and was released in 2009. Four months before H.W. was born,
Father was extradited from Maryland to Connecticut and incarcerated there. Father was
released in January 2013 and remained in Connecticut on probation. He has never seen H.W.
1
“CINA,” as defined by Md. Code (1973, 2013 Repl. Vol., 2016 Supp.), § 3-801(g)
of the Courts and Judicial Proceedings Article (“CJP”) means a “child in need of
assistance.” CJP 3-801(f) defines a child in need of assistance as:
a child who requires court intervention because:
(1) the child has been abused, has been neglected, has a
developmental disability, or has a mental disorder; and
(2) the child’s parents, guardian, or custodian are unable or
unwilling to give proper care and attention to the child and
the child’s needs.
In October 2012, Mother left H.W. unattended during a bath. When she returned, she
found him face down in the water. H.W. was hospitalized and on life support for two weeks.
In December 2012, H.W. was found to be a CINA and was placed in Mother’s care under an
Order of Protective Supervision. Some months later, the Baltimore City Department of
Social Services (“Department”) sought emergency removal of H.W. from the home, which
a juvenile court granted. In July 2013, H.W. was returned to Mother’s care under another
Order of Protective Supervision, which was rescinded in December 2013.
Mother gave birth to twins, H.J. (“Brother”) and H.J. (“Sister”)2 in January 2014.
In June 2014, Mother was bathing Brother in the kitchen sink under running water. Sister
was in her car seat in a different room with a bottle. Sister began choking and Mother left
Brother unattended to respond. When Mother returned to the kitchen, she discovered that
Brother had suffered severe burns. He was hospitalized for nearly a month. The
Department promptly filed Petitions with Requests for Shelter Care for all three children,
which the juvenile court granted. H.W. and Sister were placed in a foster home belonging
to Mr. and Mrs. M. on June 20, 2014. After being discharged from the hospital, Brother
was placed in a separate foster home to address his specific medical needs, but he
eventually joined H.W. and Sister at the M. home.3 All three children were declared CINA.
2
Because the twins have the same initials, we refer to them as “Sister” and “Brother”
for convenience.
3
Mother and the twins’ father consented to adoption of the twins by the M. family
and their parental rights have been terminated. At argument, the Department informed the
Court that the M. family has adopted the twins.
2
At the time H.W. was removed, he had a healed burn on the side of his forehead.
Mother told the Department caseworker that H.W. had run into a lit cigarette while playing.
Mother reported that she contacted his pediatrician, who advised her to put Vaseline on the
burn, but sought no other medical attention.
Lori Lee, H.W.’s caseworker, attempted to locate Father in July 2014 and received
information that he was incarcerated in Kentucky. She sent a letter to him but received no
response.4 In late 2014, while on probation in Connecticut, Father learned that H.W. was in
the State’s custody, through either a summons or a letter from Lee. Father obtained
permission to travel to Baltimore for a CINA hearing in December 2014. Mother introduced
Lee to Father the morning of the hearing. Father had thought the hearing was in the morning
and he wanted to visit H.W. When Lee explained that the hearing was scheduled for the
afternoon, Father informed Lee that he would not be able to stay because he had to return to
Connecticut. Lee told Father why H.W. was in the State’s care, and that she would like for
him to visit with H.W. Father indicated that he would speak with his probation officer, so
he could return to Baltimore to visit with H.W. Father, however, did not immediately return
to Connecticut. Instead, he left the courthouse with Mother and made alternate travel
arrangements to leave the next day. He did not attend the December 2014 hearing.
In January 2015, Lee had a phone conversation with Father’s probation officer while
Father was present. Father wanted to attend an upcoming hearing and his probation officer
indicated that she and Father would discuss whether or not he would receive permission to
4
Other than information about Lee’s efforts to locate Father, the record does not
reflect that Father was ever incarcerated in Kentucky.
3
do so. Later that month, Lee sent a letter to Father’s probation officer providing additional
information about the hearing. She did not receive a response and Father did not attend the
hearing. Lee sent additional letters to Father in July and August, notifying him of upcoming
hearings and enclosing copies of court orders. She invited Father to contact her to “discuss
any questions you may have regarding [H.W.] and [to] schedule visits.” Lee did not receive
a response. In August 2015, Father was incarcerated again for violating his probation.
Father wrote Lee a letter in October 2015, notifying her of his incarceration. He
identified an aunt and his brothers as relative resources for H.W. He included contact
information for his aunt and mother, but not for his brothers. Father expressed that he
wanted to be in H.W.’s life. He claimed that his probation officer had refused to allow him
to attend hearings in Maryland. Father had “requested to be sentenced to prison in pursuit
of no more probation, which will allow [him] to relocate back to Baltimore . . . .”
Father explained that he had difficulty communicating with Mother by phone but
occasionally reached her through social media. He stated that Mother became “stubborn and
withdrawn when [he] asked of [H.W.]’s whereabouts.” Father also asked Lee for resources,
“I don’t know what you can do for [H.W.] and I, but I am sincerely asking for your help for
our unity?” Father anticipated being “incarcerated for approximately 2 y[ea]rs” but hoped
that “you and your department have left me some options as [H.W.]’s father.” He asked Lee
to send “any information about the progress that has been made with [H.W.]’s placement.”
Lee investigated Father’s aunt, who passed her fingerprint and background checks.
When Lee contacted the aunt about completing a home inspection, she declined to be a
resource. Rather, she was willing to be “a back-up plan to [the Department’s] back-up
4
plan” and thought it best that H.W. remain with his foster family. Lee sent Father a letter
in November 2015 notifying him of this development and informing him that his brothers
had not contacted her regarding H.W.
Lee explained that H.W.’s foster family was willing and able to adopt him, and that
H.W. was having behavioral issues. She also advised Father of an upcoming hearing in
December and asked him to contact her if his situation changed, or if he had other relatives
the Department could investigate. Between March and November 2016, Lee sent Father
six more letters with copies of court orders concerning H.W. Father did not respond.
In October 2015, the Department filed a Petition for Guardianship with the Right to
Consent to Adoption or Long Term Care Short of Adoption for H.W. Father and Mother
objected, but later consented. Father, however, withdrew his consent and the matter
proceeded to a contested hearing in 2017.
The TPR Hearing
Lee testified at the hearing, describing her meeting with Father in 2014, subsequent
attempts at communication with him, and her investigation of Father’s aunt. Lee
acknowledged that Father had been under legal constraints since before H.W. went into
care. During her testimony, she also described H.W.’s placement with the M. family and
her monthly visits with the children. H.W. had some special needs relating to behavioral
problems and had been diagnosed with ADHD. He was receiving treatment and the M.
family worked with him through therapy. The M. family was in contact with Mother
through phone and e-mail.
5
Lee testified that H.W. is emotionally attached to Mr. and Mrs. M., and calls them
PopPop and Mommy. H.W.’s twin siblings are also placed with the M. family and H.W.
has bonded with them—“truly a big brother.” Lee stated that she had no concerns about
H.W.’s care and opined that it would be detrimental to H.W. to remove him from the M.
home because of his emotional attachments and because it would “set him backwards in
his treatment, the therapy that he’s been going through for his behavioral problems.” Lee
recommended that Mr. and Mrs. M. adopt H.W.
Father testified by phone from the Brooklyn Correctional Facility in Connecticut,
where he was serving a 30-month sentence for violating his probation. During his testimony,
Father explained that Mother did not contact him after he was extradited from Maryland in
2011. He had sporadic contact with Mother and, although he always asked to speak to H.W.
during phone calls, this rarely happened. Mother did not share much information about H.W.
with him, and on at least one occasion, they argued about money. Father explained that his
probation officer had denied him permission to attend other hearings for H.W.
Father had several probation violations and had tested positive for marijuana. He
explained that since he had been in Connecticut, “the majority of [his] situation has been
homelessness,” and that he had not been able to provide for himself. Father had been
employed during his probation with a fast food restaurant and with a printing company. In
early 2014 he sent money to his brother, who babysat H.W., for “Pampers, . . . for food,
for a haircut, things like that.”
Father’s mandatory release date was in February 2018, but he anticipated release as
early as November or December 2017 based on earned credits. Upon release, he would no
6
longer be subject to probation conditions. He testified that he enrolled in a program called
“Good Intentions[,] Bad Choices” but that no other programs had been recommended to, or
required of him. He had been referred to programs during his probation, including a drug
treatment program, which he had not completed. Father did not think he needed counseling,
explaining that he writes in his journal and has been doing his own reading to educate himself.
After release, Father planned to come to Baltimore and obtain custody of H.W.
Although most of Father’s family is in Baltimore, he did not have any resources identified in
Baltimore—he was not in “re-entry stage” to “transition back into society” yet. He was unsure
where he would live in Baltimore but hoped that family might help him. Father admitted that
he had “no support at all.” He was not sure how long he would stay in Baltimore, but if he did
obtain custody of H.W., the maximum he would stay would be five years.
Father said he would keep H.W. in contact with the twins, and introduce H.W. to his
teenage daughter, who lives in Philadelphia with her mother. Father explained that he was
changing his life and did not want to give his son away to another family. He testified that
he wanted to keep his parental rights because he wanted to be a “present” and “active” father.
The Juvenile Court’s Findings
The juvenile court considered Lee’s and Father’s testimony, as well as court orders,
H.W.’s medical records, Lee’s letters to Father, Father’s letter to Lee, and a bonding
evaluation between H.W. and the M. family.5 Acknowledging the fundamental right of
parents, the court also emphasized that the State has an interest in protecting vulnerable
5
Mother did not appear for her bonding evaluation. The evaluation states that
Father could not be evaluated because he was incarcerated.
7
children and that the juvenile court must give “primary consideration to the health and
safety of the child and consideration to all other factors needed to determine whether
terminating a parent’s rights is in the child’s best interests . . . .” The court then analyzed
the statutory factors set forth in FL § 5-323(d),6 as well as nine additional factors7 to
“determin[e] whether exceptional circumstances exist[ed]:”
1. Length of time child has been away from the biological
parent[;]
2. Age of child when care was assumed by caretakers[;]
3. Possible emotional effect on child if custody changed to
biological parent[;]
4. Possible emotional effect on child if custody is given to
caretaker[;]
5. Period of time which elapsed before parent sought to
reclaim child and efforts made toward reclamation[;]
6. Nature and strength of ties between child and current
caretaker[;]
7. Intensity and genuineness of parent’s desire to have the
child[;]
8. Stability and certainty as to child’s future in the custody of
the parent[; and]
9. Stability and certainty as to child’s future in custody of the
caretaker.
Based upon the statutory factors in FL § 5-323(d), the juvenile court concluded that
there was not clear and convincing evidence that Father was unfit. The juvenile court found
“by clear and convincing evidence[,] based on the relevant statutory factors[,] that
6
The juvenile court determined that Md. Code (1984, 2012 Repl. Vol.), § 5-323(c)
of the Family Law Article (“FL”) did not apply. We discuss the court’s specific findings
in greater detail, infra.
7
The factors are substantially the same as those in Ross v. Hoffman, 280 Md. 172,
191 (1977), but the juvenile court did not identify the factors as such.
8
exceptional circumstances exist[ed] to make the continuation of the parental relationship
detrimental to the best interests of the child.” It awarded guardianship to the Department.
The Court of Special Appeals vacated the juvenile court’s decision. See In re
Adoption/Guardianship of H.W., 234 Md. App. 237 (2017). It concluded that the juvenile
court erred by using four factors related exclusively to custody of the child in deciding to
terminate Father’s parental rights. Id. at 251. Based on the differences between a proceeding
to terminate parental rights and a custody proceeding, the Court of Special Appeals reasoned
that factors relating solely to custody did not belong in a TPR analysis. Id.We granted certiorari to resolve the following question:8
1. Are juvenile courts permitted to consider custody-specific
factors in termination of parental rights proceedings,
specifically: (a) the potential emotional effect of the change
in custody; (b) the instability and uncertainty of the child’s
8
Petitioner presented the following questions, which we have consolidated and
rephrased:
1. Did the Court of Special Appeals improperly proscribe
juvenile courts from considering factors critical to the
determination of a child’s best interests when it held that,
in determining whether to terminate parental rights,
juvenile courts may not consider either the emotional
effects of a change in custody upon the child or the stability
and certainty of a child’s future?
2. In determining that it is in five-year-old H.W.’s best
interests to terminate the parental rights of an incarcerated
father, whom the child has never met, did the juvenile court
permissibly consider the following factors: (a) the potential
emotional effect on the child of a change of custody; (b) the
instability and uncertainty of the child’s future in the
custody of the father; and (c) the stability and certainty of
the child’s future in the custody of the prospective adoptive
parents?
9
future in the parent’s custody; and (c) the stability and
certainty of the child’s future in the custody of the
prospective adoptive parents?
We shall conclude that, when terminating parental rights, a juvenile court must base
its assessment on the statutory factors set forth in FL § 5-323. Consideration of exclusively
custodial factors risks blurring important distinctions between parents and third-party
custodians. In this case, the juvenile court’s inclusion of custody-specific factors did not
taint its decision because it made specific findings on each relevant statutory factor and its
Ross findings were substantively the same as its more appropriate statutory findings.
STANDARD OF REVIEW
We use three distinct, but interrelated standards to review a juvenile court’s decision
to terminate parental rights. In re Adoption of Ta’Niya C., 417 Md. 90, 100 (2010). The
juvenile court’s factual findings are left undisturbed unless they are clearly erroneous. We
review legal questions without deference, and if the lower court erred, further proceedings
are ordinarily required unless the error is harmless. Id. The lower court’s “ultimate
conclusion,” if it is “founded upon sound legal principles and based upon factual findings
that are not clearly erroneous,” will be “disturbed only if there has been a clear abuse of
discretion.” Id. (quoting In re Adoption/Guardianship of Victor A., 386 Md. 288, 297
(2005)) (brackets omitted).
DISCUSSION
The Department and H.W. contend that the Court of Special Appeals committed
legal error when it decided that use of the Ross v. Hoffman, 280 Md. 172, 191 (1977),
factors relating to custody was impermissible in a TPR proceeding under FL § 5-323. They
10
assert that the statute does not create an exclusive list of factors to assess both exceptional
circumstances and analyze a child’s best interests. Because the ultimate standard is the
child’s best interests, they reason that a juvenile court should be free to assess any relevant
factors, including custody. Further, they argue that FL § 5-323 specifically includes
custodial factors relating to the child’s placement.
Father concedes that a court may look beyond the statutory factors, but he maintains
that the juvenile court must restrict its extra-statutory analysis to factors relevant to whether
termination of parental rights is in the child’s best interests. Father, relying on In re
Adoption/Guardianship of Rashawn H., 402 Md. 477 (2007), argues that because custody
and TPR are separate inquiries, factors relevant to a custody analysis do not translate to the
TPR context because parental success in TPR “merely preserves the possibility of future
reunification . . . .” (Emphasis in original). Custody-specific considerations cloud the
analysis, he reasons, because the question in a TPR proceeding is not whether the existing
custodial arrangement is in the child’s best interests, rather, it is whether continuing the
parental relationship is detrimental to the child.
In Ross, 280 Md. at 179, we addressed whether exceptional circumstances were
present in a custody dispute between a parent and a third party that merited granting
custody to the third party. We identified several factors that we considered “of probative
value in determining the existence of exceptional circumstances[,]” including:
the length of time the child has been away from the biological
parent, the age of the child when care was assumed by the third
party, the possible emotional effect on the child of a change of
custody, the period of time which elapsed before the parent
sought to reclaim the child, the nature and strength of the ties
11
between the child and the third party custodian, the intensity
and genuineness of the parent’s desire to have the child, [and]
the stability and certainty as to the child’s future in the custody
of the parent.
Id. at 191.
The parties do not challenge the use of some of these factors in the proceeding
below. Rather, their dispute centers on four factors: (1) the possible emotional effect on
the child if custody was changed to the biological parent; (2) the possible emotional effect
on the child if custody was given to the caretaker; (3) the stability and certainty as to the
child’s future in the custody of the parent; and (4) the stability and certainty of the child’s
future in the custody of the caretaker.
We look first to the fundamental principles associated with a court’s decision to
terminate parental rights and the statutory scheme set forth in FL § 5-323.
The Transcendent Standard And FL § 5-323
This Court has long recognized that parents have a fundamental right to raise their
children and make decisions about their custody and care. See In re Adoption of Jayden
G., 433 Md. 50, 66–67 (2013); In re Adoption/Guardianship of Victor A., 386 Md. 288,
298–99 (2005). As we explained in Rashawn H., 402 Md. at 495, there is “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.” These principles are not absolute—they are tempered by the State’s
interest in protecting children. See Jayden G., 433 Md. at 68. The “transcendent” standard
in TPR proceedings has always been the child’s best interests. Ta’Niya C., 417 Md. at 112;
Jayden G., 433 Md. at 67; Rashawn H., 402 Md. at 496.
12
The General Assembly has established a legal framework to assess whether it is in
a child’s best interests to terminate parental rights that balances the child’s best interests
and the appropriate protection for parental rights. FL § 5-323(b) establishes the burden of
proof and findings required for a juvenile court to terminate parental rights:
If, after consideration of factors as required in this section,
a juvenile court finds by clear and convincing evidence that
a parent is unfit to remain in a parental relationship with
the child or that exceptional circumstances exist that would
make a continuation of the parental relationship
detrimental to the best interest of the child such that
terminating the rights of the parent is in the child’s best
interests, the juvenile court may grant guardianship of the
child without consent otherwise required under this subtitle
and over the child’s objection.
(Emphasis added). Subsection (d) requires that the juvenile court “shall give primary
consideration to the health and safety of the child and consideration to all other factors
needed to determine whether terminating a parent’s rights is in the child’s best
interests . . . .” and it provides a list of factors that must be considered.
Rashawn H. And The TPR Analysis
We offered some guidance interpreting the TPR statute in Rashawn H.9 The
statutory scheme for terminating parental rights has “three critical elements in . . . balance
that serve to give heightened protection to parental rights in the TPR context.” 402 Md. at
9
We considered both then-FL § 5-313 and its successor, FL § 5-323. In re
Adoption/Guardianship of Rashawn H., 402 Md. 477, 499 (2005).
13
498. First, although not “expressly articulated” in the statute,10 there is an implicit
presumption that “the interest of the child is best served by maintaining the parental
relationship . . . .” Id. This presumption is rebuttable “only by a showing that the parent
is either unfit or that exceptional circumstances exist that would make the continued
relationship detrimental to the child’s best interest.” Id. The parental relationship
presumption originates from our precedent on parent-third party custody disputes, but the
concepts of unfitness and exceptional circumstances have a substantially different
meaning in TPR cases. Id.In custody cases, unfitness “means an unfitness to have custody of the child, not an
unfitness to remain the child’s parent; exceptional circumstances are those that would make
parental custody detrimental to the best interest of the child.” Id. (emphasis in original).
Facts that might demonstrate unfitness or exceptional circumstances in a custody case are
not always sufficient to terminate parental rights. Therefore, to justify a TPR decision,
“the focus must be on the continued parental relationship, not custody.” Id. at 499
(emphasis added). The facts must show that the parent is unfit to continue the relationship,
or exceptional circumstances make the continued relationship detrimental to the child’s
best interests. Id.
Second, the “State must overcome a much higher substantive burden by a higher
standard of proof.” Id. It must establish unfitness or exceptional circumstances by clear
10
The General Assembly amended FL § 5-323(b) in 2009 to include this
presumption. See 2009 Md. Laws, Ch. 350, § 1; see also In re Adoption/Guardianship of
Amber R., 417 Md. 701, 710 n.8 (2011).
14
and convincing evidence rather than the preponderance standard applicable in custody
cases. Id. Terminating parental rights is “a total rescission of the legal relationship
between parent and child, and . . . is generally final.” Id. at 496. Further, in custody
disputes, the State serves as a neutral judicial forum, whereas in TPR proceedings, the State
is “a moving party, acting in its capacity as parens patriae[,]” to terminate a parental
relationship and transfer those rights to itself. Id.
Third, the Legislature has “carefully circumscribed the near-boundless discretion
that courts have in ordinary custody cases to determine what is in the child’s best interests.”
Id. at 499. The statutory factors are both considerations in determining whether TPR is in
a child’s best interests, and “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.” Id. (emphasis
added). See also Ta’Niya C., 417 Md. at 104 (“[T]he same factors that a court uses to
determine whether termination of parental rights is in the child’s best interest under the
TPR statute equally serve to determine whether exceptional circumstances exist.”). The
TPR statute “appropriately looks to . . . whether the parent is, or within a reasonable time
will be, able to care for the child in a way that does not endanger the child’s welfare.”
Rashawn H., 402 Md. at 499–500.
Unfitness or exceptional circumstances do not, by themselves, mandate a decision
to terminate parental rights. See Jayden G., 433 Md. at 94. Rather, they demonstrate that
the presumption favoring the parent has been overcome. The decision to terminate parental
15
rights must always revolve around the best interests of the child.11 Id. The three
concepts—unfitness, exceptional circumstances, and best interests—“are fused together,
culminating in the ultimate conclusion of whether terminating parental rights is in a given
child’s best interests.” Id. at 96 n.32.
Judge Wilner clarified the appropriate balance between a parent’s interest and the
best interests of a child:
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.
Rashawn H., 402 Md. at 501 (emphasis in original). This, we reiterated in Ta’Niya C., 417
Md. at 111, “should be the touchstone for courts in TPR cases.”
With this framework established, we next consider whether a juvenile court is
permitted to deviate from the statutory framework by including other factors.
11
If, however, the juvenile court does not find either exceptional circumstances or
unfitness, the court may not re-examine best interests without keeping the constitutionally-
based parental presumption firmly in mind. In re Adoption of Ta’Niya C., 417 Md. 90, 111
n.19 (2010).
16
The Presence Of Additional Factors
FL § 5-323(d) requires the juvenile court to “give primary consideration to the
health and safety of the child and consideration to all other factors needed to determine
whether terminating a parent’s rights is in the child’s best interests, including . . . .”
(Emphasis added). Thus, although the statute limits the juvenile court’s discretion and sets
forth criteria a juvenile court must consider in making the exceptional circumstances and
best interests analyses, the statutory language does not contemplate that those factors are
exclusive. See Rashawn H., 402 Md. at 499.
Additional criteria may come into play in the exceptional circumstances analysis.
For example, in Ta’Niya C., 417 Md. at 104 n.11, we explained that in a TPR exceptional
circumstances analysis, “[i]n addition to . . . statutory factors, courts may consider ‘such
parental characteristics as age, stability, and the capacity and interest of a parent to provide
for the emotional, social, moral, material, and educational needs of the child.’” (quoting
Pastore v. Sharp, 81 Md. App. 314, 320 (1989), cert. denied, Pastore v. Sharp, 419 Md.
304 (1990)). These additional factors are germane to statutory criteria, such as a parent’s
efforts to alter circumstances to make it in the child’s best interests to return to the parent’s
home. See FL § 5-323(d)(2); see also id. (d)(2)(ii) (parent’s contributions to child’s care).
They also directly relate to the statutory inquiry regarding a parent’s unfitness or the
presence of exceptional circumstances that make continuing the relationship detrimental to
the child’s best interests. See Rashawn H., 402 Md. at 499.
H.W. asserts that this Court applied the Ross factors in Ta’Niya C. In that case, we
analyzed language from Rashawn H. that was directly traceable to Ross. Ta’Niya C., 417
17
Md. at 106. Our discussion of Ross was intended to clarify the relationship between the
presumption accorded to parents and the paramount standard in TPR proceedings—the
child’s best interests. Id. at 105. We did not apply the Ross factors or endorse application
of those factors in our decision to remand the case to the juvenile court for an appropriate
assessment of whether exceptional circumstances existed. Id. at 116–17.
In re Adoption of K’Amora K., 218 Md. App. 287, 305–06 (2014), similarly does
not demonstrate that the Ross factors are utilized to assess exceptional circumstances in
TPR proceedings under FL § 5-323. There, the Court of Special Appeals explained that
this Court had included a parent’s behavior or character in the exceptional circumstances
analysis in another case, In re Adoption/Guardianship No. A91-71A, 334 Md. 538 (1994).
K’Amora K., 218 Md. App. at 306. But the Court of Special Appeals drew from a portion
of No. A91-71A that discussed factors other than those set forth in Ross. Id. (citing No.
A91-71A, 334 Md. at 562–63). Specifically: the effect upon the child’s stability of having
the particular relationships continue; abandonment by a parent; and a failure to support or
visit the child. These behaviors provided “insight into the parent’s character, motivation,
or ability to fulfill parental responsibilities.”12 No. A91–71A, 334 Md. at 563. These factors
do not address custody—rather they reflect on the nature of the parent-child relationship
that a TPR proceeding would sever.
12
These factors are already encompassed in the statute. See, e.g., FL § 5-323(d)(2)(i)
(parent’s efforts to maintain regular contact with child); id. (d)(2)(ii) (parent’s contribution
to child’s care and support); id. (d)(4)(iii)–(iv) (child’s feeling about TPR and impact of
terminating parental rights on child’s wellbeing).
18
The Department and H.W. maintain that the Court of Special Appeals’ decision
directly conflicts with In re Adoption/Guardianship of C.A. and D.A., 234 Md. App. 30(2017), because the Court approved “use of the Ross factors in a guardianship action.” In
C.A. and D.A., after explaining that the factors in FL § 5-323 serve as mandatory criteria
to determine exceptional circumstances that would rebut the parental presumption, the
intermediate appellate court identified “[o]ther criteria relevant to an exceptional
circumstances determination,” specifically:
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.
Id. at 50 (citing No. A91–71A, 334 Md. at 562–64). These factors, drawn from No. A91–
71A, are modified from independent adoption cases relying on Ross.13 Compare id., and
No. A91-71A, 334 Md. at 562–64, with Ross, 280 Md. at 191. Notably, the Court of Special
13
The Ross factors have surfaced in independent adoption cases under FL § 5-3B-22,
which authorizes courts to grant adoption without a natural parent’s consent under certain
circumstances. See In re Adoption/Guardianship No. 3598, 347 Md. 295, 325–26 (1997);
In re Adoption/Guardianship No. A91-71A, 334 Md. 538, 561–62 (1994). In both cases,
the prospective adoptive parents had taken custody of the child and the natural parent
sought the child’s return. See No. 3598, 347 Md. at 327; No. A91-71A, 334 Md. at 545.
FL § 5-3B-22(b) specifically requires that the prospective adoptive parent have had
custody of the child for a specific period of time. Finally, the dispute, between two private
parties, bears greater resemblance to third-party custody cases in which the State serves as
a neutral forum, rather than an active participant.
19
Appeals did not include the custody-specific factors from Ross that triggered the
controversy in this case.14
The Ross Factors And The TPR Statute
The Department and H.W. contend that the Ross factors pertaining to custody are
effectively encompassed in FL § 5-323. A child’s home life is part of the TPR analysis,
which, they assert, necessarily includes custody. They reason that because the guardianship
statute gives juvenile courts discretion in making decisions concerning the child’s best
interests, custody-specific factors are entirely appropriate elements to include in the FL § 5-
323 calculation.
The Court of Special Appeals determined that some Ross factors were consistent
with statutory factors, particularly those set forth in FL § 5-323(d)(4), and relevant to the
central question of whether the continued parental relationship would be detrimental to a
child’s best interest. H.W., 234 Md. App. at 251. But, it cautioned, factors that “expressly
pertain to custody—the possible emotional effect on the child of a change in custody and
the stability and certainty as to the child’s future in the custody of the parent—do not belong
in a TPR analysis.” Id.
14
The Court of Special Appeals included a factor considering the “emotional effect
of the adoption on the child.” In re Adoption/Guardianship of C.A. and D.A., 234 Md. App.
30, 50 (2017). We consider that proper framing of this factor is set forth in FL § 5-323(d)(4),
specifically, the child’s emotional ties to individuals who significantly affect his or her best
interest, the child’s feelings about ending the parent-child relationship, and the impact of
terminating parental rights on the child’s well-being. Adoption may follow a TPR decision,
but the court assessing whether to terminate parental rights must focus on whether the
parent is unfit to have a continued relationship with the child, or that exceptional
circumstances make continuing the relationship detrimental to the child’s best interests,
and whether TPR is in the child’s best interests. Rashawn H., 402 Md. at 499.
20
We agree with the Court of Special Appeals that some Ross factors demonstrate
reasonable overlap with certain statutory factors in FL § 5-323(d). The chart below
illustrates the overlap:
Ross Factors FL § 5-323(d)
Length of time the child has been away FL § 5-323(d)(2)(iv) (additional services
from the biological parent. bring about parental adjustment to return
child in ascertainable time not greater than
18 months from date of placement unless it
in child’s best interests to extend the time).
FL § 5-323(d)(4)(i) (child’s emotional ties
with and feelings towards parents, siblings,
others who may affect child’s best interests
significantly).
FL § 5-323(d)(4)(iii)–(iv) (child’s feelings
about severing parent-child relationship
and likely impact of TPR on child’s well-
being).
Age of child when care assumed by third FL § 5-323(d)(2)(iv) (see supra).
party. FL § 5-323(d)(4)(ii) (child’s adjustment to
community, home, placement).
FL § 5-323(d)(4)(iii)–(iv) (see supra).
The period of time elapsed before the FL § 5-323(d)(2) (results of parent’s effort
parent sought to reclaim the child. to adjust parent’s circumstances, condition,
or conduct to make it in child’s best
interests to be returned to parent’s home).
FL § 5-323(d)(2)(i) (extent to which parent
has maintained regular contact with child).
The nature and strength of the ties between FL § 5-323(d)(4)(i) (see supra).
the child and the third-party custodian. FL § 5-323(d)(4)(ii) (see supra).
The intensity and genuineness of the FL § 5-323(d)(2) (see supra).
parent’s desire to have the child. FL § 5-323(d)(4)(i), (iii)–(iv) (see supra).
Ta’Niya C., 417 Md. at 104 n.11.
The custody-specific factors—the possible emotional effect on the child of a change
of custody and the stability and certainty as to the child’s future in the custody of the
21
parent—present different considerations.15 To be sure, FL § 5-323(d) requires the juvenile
court to consider “all other factors needed to determine whether terminating a parent’s
rights is in the child’s best interests . . . .” before supplying a list of considerations that
must be included. (Emphasis added). And we observe that trial courts are accorded
significant discretion in making assessments about a child’s best interest. See In re
Adoption/Guardianship of Amber R., 417 Md. 701, 713 (2011). Although the custody-
specific Ross factors relate to certain statutory factors, the relationship alone does not
resolve this case. We assess these factors, and whether they pose impermissible
considerations that may lead a juvenile court’s TPR analysis astray.
The child’s emotional attachments and the potential emotional effect on the child
from a change of custody falls well within the explicit statutory factors a court must address
in assessing the child’s placement. See FL § 5-323(d)(4)(i) (consider “child’s emotional
ties with and feelings toward . . . others who may affect child’s best interests
significantly”); id. (d)(4)(ii) (child’s adjustment to community, home, placement, and
school). And, as in this case, that placement may be a foster family who wishes to adopt
the child. See, e.g., Jayden G., 433 Md. at 91; Amber R., 417 Md. at 707; Ta’Niya C., 417
Md. at 95–96.
The stability and certainty as to the child’s future in the custody of the parent relates
to statutory factors considering whether the parent “is, or within a reasonable time will be,
15
At oral argument, we sought clarification on whether the juvenile court
independently added the Ross factors to the analysis. A review of the record reveals that
the Department relied on the Ross factors during its closing argument and specifically
discussed custodial considerations.
22
able to care for the child in a way that does not endanger the child’s welfare.” Rashawn
H., 402 Md. at 500; see also FL § 5-323(d)(2) (parent’s efforts to adjust circumstances to
make it in child’s best interests for child to be returned to parent’s home); id. (d)(2)(iv)
(whether additional services could bring about “lasting parental adjustment” to return child
to parent in ascertainable time). These factors are connected—albeit loosely—to the best
interests analysis FL § 5-323 requires.
On the other hand, we have cautioned that:
a child’s prospects for adoption must be a consideration
independent from the termination of parental rights . . . in that
“the facts should first be considered as if the State were taking
the child from the parent for some indefinite placement and
upon that determination open the question of the suitability of
the proposed adoption and its relation to the child’s welfare.”
Victor A., 386 Md. at 317 (quoting Cecil Cty. Dep’t of Soc. Servs. v. Goodyear, 263 Md.
611, 615 (1971)). This Court has consistently emphasized that custody proceedings are
“on a different plane than TPR proceedings.” Rashawn H., 402 Md. at 495–96; see also
Burak v. Burak, 455 Md. 564, 631–32 (2017) (declining to adopt FL § 5-323(d) criteria as
standard for unfitness in third-party custody dispute). Rashawn H., teaches us that the
statute cabins the “near-boundless discretion” that courts have in custody cases. 402 Md.
at 499. FL § 5-323 balances a court’s inquiry into whether the continued parental
relationship is in the child’s best interests with the appropriate consideration owed to a
parent’s fundamental rights. Id. Courts must address the presumption accorded to parents,
“[r]ather than deciding at the outset what living arrangement is in the child’s best
23
interests . . . .” Jayden G., 433 Md. at 95. To do otherwise risks “creat[ing] the impression
that the natural parents and a third party stood on the same footing.” Id.
Our decision in this case turns on harmonizing these competing considerations. We
are mindful that the best interests of a child require flexibility based on the circumstances
unique to each child. Id. at 86. We must decide whether, in this case, the juvenile court’s
inclusion of custody-specific factors unduly tipped the balance between a parent’s rights,
the State’s interest in protecting vulnerable children, and the child’s best interests.
The Juvenile Court’s Findings
The juvenile court first considered “all services offered to the parent before the
child’s placement, whether offered by a local department, another agency or a
professional[,]” FL § 5-323(d)(1)(i), and the “extent, nature, and timeliness of services
offered by a local department to facilitate reunions of the child and parent . . . .” Id.
(d)(1)(ii). Father’s whereabouts were unknown when H.W. came into care in 2014 and
“no services could be provided prior to the child’s placement.” Lee had communicated
with Father and explored the resources he offered when he asked for assistance in his
October 2015 letter. Lee and Father had not discussed service agreements. Father’s
incarceration made it difficult to offer reunification services, and Father did not testify that
he had “availed himself of any services or programs while incarcerated.” Because there
were no service agreements, the juvenile court was unable to make findings under
subsection (d)(1)(iii), regarding the extent to which the Department and Father had fulfilled
obligations under any service agreements.
24
Turning to subsection (d)(2), which assesses “the results of the parent’s effort to
adjust the parent’s circumstances, condition, or conduct to make it in the child’s best
interests for the child to be returned to the parent’s home,” the juvenile court considered
Father’s efforts to maintain regular contact with H.W., the Department, and the M. family.
See id. (d)(2)(i). Father has never met H.W. Although Father asked to visit his son when
he was at the December 2014 hearing and presumably was available because he stayed an
extra day, he chose not to see H.W. Father had “limited contact” with the Department and
there is no evidence that he had contact with the M. family. The juvenile court also found
under subsection (d)(2)(ii) that Father had not provided support to H.W.
In considering Father’s incarceration, the juvenile court observed that TPR
proceedings involving an incarcerated parent turn on the specific facts of each case. The
court considered precedent demonstrating that lengthier sentences of incarceration may
weigh in favor of terminating parental rights, but the ultimate consideration was the best
interests of the child. Under subsection (d)(2)(iii), Father’s incarceration was not a parental
disability, but it impacted H.W.’s wellbeing. Father had been incarcerated or under
supervision throughout H.W.’s life, and he would be incarcerated for approximately
another year. Although this was “short term” incarceration, the court found that Father’s
incarceration and lack of contact did not serve H.W.’s best interests.
Subsection (d)(2)(iv) requires considering whether additional services are likely to
bring about an adjustment “so that the child could be returned to the parent within an
ascertainable time not to exceed 18 months from the date of placement[.]” A juvenile court
may extend that period for an identifiable time upon a specific finding that it is in the child’s
25
best interests to do so. Id. The juvenile court found that H.W. had been in the Department’s
care for almost three years, and Father had been incarcerated, or out of state, and had only
minimal contact with the Department. Although Father planned to return to Baltimore and
attempt reunification, he would be incarcerated for another year and had no concrete plans
or resources available upon his release. The court concluded that it would not be in H.W.’s
best interests to leave the case open for an additional year in the hope that Father would
come to Baltimore to reunify with H.W. “The Court can point to no behavior or pattern of
the father that would persuade the Court to believe that additional time . . . [or] additional
services would be likely to bring about a lasting parental adjustment so that the child could
be returned to the parent.”
The juvenile court determined that subsections (d)(3)(ii)–(v)16 did not apply, but
concluded that under (d)(3)(i), which considers whether “the parent has abused or
neglected the child or a minor and the seriousness of the abuse or neglect,” Father had
“responsibility for the supervision of the child[,]” and his “inability through his actions that
have resulted in incarceration ha[ve] resulted in [n]eglect by omission.”
FL § 5-323(d)(4)(i) requires the juvenile court to assess “the child’s emotional ties
with and feelings towards the child’s parents, the child’s siblings, and others who may
affect the child’s best interests significantly.” The court referred to the bonding study with
16
These subsections address: (1) results of drug tests at birth for a child; (2) whether
the parent has subjected the child to torture, abuse, sexual abuse, or chronic and life-
threatening neglect; (3) a parent’s convictions for crimes of violence against his or her
offspring or another parent of the child; and (4) whether a parent has involuntarily lost
parental rights to a sibling of the child. See FL § 5-323(d)(3)(ii)–(v).
26
the M. family and observed that H.W. has bonded with his siblings. Although Father said
he would keep H.W. in touch with the twins, Father expressed an intention to take H.W.
away from Baltimore, which would separate him from his siblings.
Subsection (d)(4)(ii) examines the child’s adjustment to the community, home,
placement, and school. The juvenile court cited Lee’s testimony about H.W.’s current
placement and his attachment to the M. family. Subsections (d)(4)(iii) and (iv) look to the
effect terminating parental rights would have on the child. In considering H.W.’s feelings
about the severance of the parent-child relationship under subsection (d)(4)(iii), the court
found that H.W., who was four at the time of the hearing, had never met Father and did not
know that Father existed. Applying (d)(4)(iv), the hearing judge concluded that
terminating parental rights would impact H.W.’s well-being by permitting him to be
“adopted with [his] siblings by [his] current caregiver . . . .” who had cared for him “for
the majority of his 4 years of life.”
The juvenile court then considered nine additional factors, which it identified as
“[f]actors for determining whether exceptional circumstances existed.” The juvenile
court’s finding under the first factor, the “[l]ength of time [the] child has been away from
the biological parent,” was identical with its finding under subsection (d)(2)(i)—that H.W.
has never been in Father’s care and Father has never seen H.W. Under the second factor,
the “[a]ge of [the] child when care was assumed by [the] caretakers,” the court found that
H.W. had been placed with the M. family since June 20, 2014.
The third factor the court applied was the “[p]ossible emotional effect on [the] child
if custody changed to the biological parent.” It found that “[a]ny change that would remove
27
the child from a home that he has only known would more than likely have a detrimental
effect” and that H.W. “does not know his father . . . .” Here, the court was repeating
assessments it had already made in analyzing the factors in subsections (d)(4)(ii) and (iii).
With regard to the fourth factor, the “[p]ossible emotional effect on [the] child if
custody is given to the caretaker[,]” the court concluded:
[H.W.] has been in the care of the current caretakers not to[o]
long after his birth. . . . [H.W.] is in the unique position of
being placed with his two other siblings in a home that has been
characterized as loving. . . . [He] is bonded to the only parents
he has known since birth. Remaining with the current
caretakers would continue the positive emotional effect
on . . . [H.W.].
The length of H.W.’s placement with the M. family, the positive nature of his placement
and emotional attachment to the M family, and his relationship to his siblings had already
been addressed in the court’s earlier findings under subsection (d)(4)(ii).
The fifth and seventh factors, the time elapsed before Father sought to reclaim H.W.,
his efforts towards reclamation, as well as the “intensity and genuineness” of his desire to
have H.W., necessitated examination of facts and circumstances related to Father’s efforts
under (d)(1)–(2). The juvenile court found that Father “has stated in a letter and in
testimony a desire to have the child but has done nothing further to promote that agenda.
Father has shown no genuineness or intensity to have his child.” Here too, the juvenile
court’s analysis and findings were consistent with its existing statutory findings. In
considering the sixth factor, the “nature and strength of the ties between [the] child and
current caretaker,” the juvenile court repeated its findings from Lee’s testimony about her
28
recent visit to the M. family, which it had already set forth under findings for subsection
(d)(4)(ii).
Regarding factor eight, the stability and certainty as to H.W.’s future in Father’s
custody, the juvenile court reiterated its findings under subsections (d)(1)(i)–(ii), regarding
Father’s incarceration, and that he had not sought any services or programs while
incarcerated. The hearing judge also found that Father could be released in a year and
intended to come to Baltimore, but he “does not have any resources in place to provide
stability for himself[,] let alone a child.” Further,
[t]he father’s family in Baltimore is not a resource for him, let
alone a child. . . . Father did not, while on parole, seek any
stability. Father could not successfully complete the terms of
his probation, which resulted in his current
incarceration. . . . [H.W.’s] stability and certainty . . . in
[F]ather’s care would be one of instability and uncertainty . . . .
The juvenile court had already made these findings under subsection (d)(2)(iv), when it
considered whether additional services could bring about a lasting parental adjustment to
permit H.W. to return to Father’s care. The juvenile court’s specific conclusion regarding
Father’s stability, although not identical to other findings, was consistent with the court’s
earlier determination that Father had not demonstrated any “behavior or pattern” that
persuaded the court that “additional services would be likely to bring about a lasting
parental adjustment” such that he could safely and appropriately care for H.W. within the
statutory timeframe.
Finally, in considering the ninth factor, the stability and certainty as to H.W.’s future
in the custody of the M. family, the juvenile court determined only that “[H.W.] has gained
29
stability and certainty in the care and custody of the current caretaker and has thrived and
progressed under their care.” This conclusion recycled the juvenile court’s previous
statutory findings regarding H.W.’s placement.
Analysis
As we have explained supra, the focus of the inquiry in a TPR proceeding revolves
around whether the continued parental relationship is detrimental to the child’s best
interest. See Rashawn H., 402 Md. at 499. The juvenile court thoroughly considered the
relevant statutory factors in relation to the available evidence and made detailed findings
while keeping the presumption of the continued parental relationship in mind. See id. at 501.
An exceptional circumstances analysis must turn on whether the presence—or
absence—of particular facts and circumstances makes continuation of the parental
relationship detrimental to the child’s best interests. See, e.g., In re Adoption/Guardianship
of Alonza D., Jr., 412 Md. 442, 462–63 (2010) (“Passage of time, without explicit findings
that the continued relationship with [the parent] would prove detrimental to the best
interests of the children, is not sufficient to constitute exceptional circumstances.”).
Consideration of any non-statutory factors in a TPR proceeding must be tailored to that
inquiry. Custodial decisions necessitate different considerations than the decision to
terminate parental rights. Rashawn H., 402 Md. at 498–99. Using purely custodial Ross
factors runs the risk of ignoring the essential assessment of the parental relationship that
is necessary to decide whether to terminate that relationship. Drawing comparisons
between a parent and a third party in TPR proceedings may risk according the third party
equal footing, particularly if the juvenile court fails to make findings in accordance with
30
the statute. Although some Ross factors are related to the statutory factors, it is
undoubtedly the best practice for juvenile courts to adhere to FL § 5-323(d). See id. at 501;
see also Ta’Niya C., 417 Md. at 104 & n.11.
As we explained earlier, the final decision of a juvenile court is subject to review
for abuse of discretion. Ta’Niya C., 417 Md. at 100. Although by incorporating these
factors the juvenile court came perilously close—indeed, we consider this as far as a
juvenile court can go—it did not cross the line. The juvenile court did not make separate
findings based on the Ross factors. Rather, the bulk of the court’s conclusions repeated its
findings properly made under the statutory factors. We conclude that, under these
circumstances, injecting the Ross factors did not upset the legislatively crafted balance set
out in FL § 5-323.
Father asserts that the trial court “impermissibly contrasted H.W.’s respective
futures with [Father] and his foster parents[,]” by considering these custodial factors. He
also maintains that the juvenile court failed to properly consider whether he would be
capable of caring for H.W. within a reasonable amount of time. The TPR statute explicitly
requires the court to consider factors associated with the child’s placement, see FL § 5-
323(d)(4), and the parent’s efforts to adjust their circumstances to be reunited with the
child. See id. (d)(1)–(2). We have directed courts to proceed with caution in assessing the
factors relating to a child’s foster care placement, and not to rely on bonding with a foster
family as the primary justification for terminating parental rights.
In Alonza D., 412 Md. at 464, we observed that it was reasonable to presume that a
“successful foster care placement has at its foundation a level of bonding by the children
31
with the caretaker.” Bonding alone cannot be a dispositive factor—the juvenile court must
assess whether the continued relationship with a biological parent is detrimental to the
child’s best interests. Id. Otherwise, we reasoned, “reunification with a parent would be a
mere chimera . . . .” Id.Although H.W. had thrived in his foster care placement, that is not enough reason
to sever Father’s parental rights. “For exceptional circumstances to exist, the court must
also find that the passage of time when the parent and the child were apart makes
continuation of the parental relationship detrimental to the best interest of the child.”
Ta’Niya C., 417 Md. at 112. Here, the juvenile court properly looked to Father’s conduct.
H.W. did not have any ties to Father. He was unaware that Father existed. The evidence
demonstrated that Father had been relatively indifferent to his obligations to his child.
Father did not know that H.W. was in the Department’s custody for a prolonged period of
time. He had only minimal contact with the Department regarding reunification and
visitation. When Father had the opportunity to visit with H.W., he chose not to do so.
From this, the juvenile court reasonably concluded that continuing the legal relationship in
the hope that Father might make changes in his life to permit reunification was unlikely
based on Father’s past behavior, and it was not in H.W.’s best interests to do so.
Father’s incarceration made it difficult for the Department to offer reunification
services. As we explained in Rashawn H., 402 Md. at 500, the Department must offer a
reasonable level of services to assist in reunification. See also FL § 5-525(e) (requiring
reasonable efforts to make it possible for a child to return to the child’s home). These
efforts need not be perfect, In re James G., 178 Md. App. 543, 601 (2008), but are judged
32
on a case-by-case basis. In re Shirley B., 419 Md. 1, 25 (2011). Here, Father had only
sporadic contact with the Department, rendering this task even more difficult. In short,
there was no evidence that Father could, “or within a reasonable time w[ould] be, able to
care for the child in a way that does not endanger the child’s welfare.” Rashawn H., 402
Md. at 500.
CONCLUSION
The juvenile court gave “most careful consideration to the relevant statutory factors,”
and made specific findings based on the available evidence. Id. at 501. Although factors
pertaining exclusively to custody have no place in TPR assessments under FL § 5-323, the
juvenile court did not abuse its discretion when, based on these circumstances and an
appropriate statutory analysis, it terminated Father’s parental rights.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED. CASE
REMANDED TO THAT COURT WITH
INSTRUCTIONS TO AFFIRM THE
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY AND REMAND
THE CASE TO THAT COURT FOR
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID BY
RESPONDENT M.W.
33
Circuit Court for Baltimore City
Case No. T15280012
Argued: April 6, 2018 IN THE COURT OF APPEALS
OF MARYLAND
No. 70
September Term, 2017
__________________________________
IN RE: ADOPTION/GUARDIANSHIP
OF H.W.
__________________________________
Barbera, C.J.,
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
__________________________________
Concurring and Dissenting Opinion by
Hotten, J.
__________________________________
Filed: July 16, 2018
Respectfully, I must concur in part, and dissent in part with the Majority’s holding.
Using the four factors related exclusively to a custody determination is not appropriate in
deciding whether to terminate the parental rights of H.W.’s father, M.W. (“Father”). I
agree with the Majority’s rationale that “[c]onsideration of exclusively custodial factors
risks blurring important distinctions between parents and third-party custodians.” Majority
Slip Op. at 10. However, in acknowledging that an analysis of custody factors blurs
important distinctions, I do not know whether the injection of custody factors tainted the
juvenile court’s decision. I agree with the Court of Special Appeals that consideration of
custody factors was reversible error.
At issue are the factors that a court must adhere to in rendering its findings in a TPR
proceeding. Maryland Code (1984, 2012 Repl. Vol.), § 5-323(b) of the Family Law Article
(“Fam. Law”) allows for the termination of parental rights if “a juvenile court finds by
clear and convincing evidence that a parent is unfit to remain in a parental relationship with
the child or that exceptional circumstances exist that would make a continuation of the
parental relationship detrimental to the best interests of the child such that terminating the
rights of the parent is in a child’s best interests[.]” The two threshold considerations are
parental unfitness or exceptional circumstances. However, when a court exercises its
discretion to terminate parental rights, the most critical overarching determination is the
child’s best interest. In re Adoption of Jayden G., 433 Md. 50, 82, 70 A.3d 276, 295 (2013).
Fam. Law § 5-323(d)(1) expressly provides the factors to be considered, including:
(1)(i) all services offered to the parent before the child’s placement, whether
offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local
department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled
their obligations under a social services agreement, if any;
(2) the results of the parent’s effort to adjust the parent’s circumstances,
condition, or conduct to make it in the child’s best interests for the child
to be returned to the parent’s home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is committed; and
3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the child’s care and
support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent
consistently unable to care for the child’s immediate and ongoing
physical or psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting
parental adjustment so that the child could be returned to the parent
within an ascertainable time not to exceed 18 months from the date of
placement unless the juvenile court makes a specific finding that it is in
the child’s best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a minor and the
seriousness of the abuse or neglect;
(ii) 1. A. on admission to a hospital for the child’s delivery, the mother
tested positive for a drug as evidenced by a positive toxicology test;
or
B. upon the birth of the child, the child tested positive for a drug as
evidenced by a positive toxicology test; and
2. the mother refused the level of drug treatment recommended by
a qualified addictions specialist, as defined in § 5-1201 of this title,
or by a physician or psychologist, as defined in the Health
Occupations Article;
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any court of the United
States, of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
2
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to commit a crime
described in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the
child; and
(4)(i) the child’s emotional ties with and feelings toward the child’s parents,
the child’s siblings, and others who may affect the child’s best interests
significantly;
(ii) the child’s adjustment to:
1. community;
2. home;
3. placement; and
4. school;
(iii) the child’s feelings about severance of the parent-child relationship;
and
(iv) the likely impact of terminating parental rights on the child’s well-
being.
As both the Majority and the Court of Special Appeals have alluded to, Fam. Law
§ 5-323(d) does not confine the court’s analysis to the factors specifically enumerated. The
express text of the statute allows a court to give due “consideration to all other factors
needed to determine whether terminating a parent’s rights is in the child’s best interests[.]”
Fam. Law § 5-323(d).
In the case at bar, after considering each of the relevant statutory factors in Fam. Law
§ 5-323(d), the juvenile court could not find clear and convincing evidence of Father’s
unfitness to remain in a parental relationship with H.W. Consequently, the juvenile court
examined whether the Department had shown by clear and convincing evidence,
exceptional circumstances that rendered a continuation of the parental relationship
detrimental to the best interest of the child. In order to determine whether exceptional
circumstances existed, the juvenile court relied on four custody-specific factors which are
not expressly stated in § 5-323(d) and which we have addressed within the context of a
3
child custody action. Those factors were: (1) the possible emotional effect on the child if
custody changed to biological parent; (2) the possible emotional effect on the child if
custody is given to a caretaker; (2) the stability and certainty as to the child’s future in the
custody of the parent; and (3) the stability and certainty as to the child’s future in the
custody of the caretaker. See Burak v. Burak, 455 Md. 564, 659, 168 A.3d 883, 938–39
(2017) (citing Ross v. Hoffman, 280 Md. 172, 191, 372 A.2d 582, 593 (1977)). After
considering these factors, the juvenile court determined that exceptional circumstances
existed to terminate Father’s parental rights.
This Court has continually grappled with balancing a child’s best interest and
finding parental unfitness or exceptional circumstances. Writing for this Court, Judge
Wilner first endeavored to interpret the factors considered in a TPR proceedings in In re
Adoption/Guardianship of Rashawn H. (“Rashawn H.”), 402 Md. 477, 937 A.2d 177(2007). Rashawn H. may not have provided as clear guidance as the Majority suggests.
As explained by the Majority, Rashawn H. struck a balance between a parent’s and child’s
interest:
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.
4
Id. at 501, 937 A.2d at 192; see Majority Slip Op. at 16. However, Rashawn H. did not
interpret the necessity to adhere to the expressly enumerated factors in § 5-323(d), or the
consideration of “other factors” referenced within the statute. Rashawn H.’s focus was on
drawing the distinctions between custody and TPR proceedings. The extensive legislative
and historical analysis in Rashawn H. provides guidance on the appropriateness of TPR
proceedings, but not necessarily on how juvenile courts should approach a finding of
parental unfitness or exceptional circumstances. Notwithstanding the unsettled areas of
Rashawn H., its discussion makes clear that “[t]o justify a TPR judgment, therefore, the
focus must be on the continued parental relationship, not custody.” Rashawn H., 402 Md.
at 499, 937 A.2d at 190.
The Rashawn H. Court highlighted three elements to distinguish the heightened
standards in TPR proceedings that are not utilized when considering child custody. Id. at
498, 937 A.2d at 190. First, a presumption exists that it is in the best interest of the child
to maintain the parental relationship, which may be rebutted by a showing of unfitness or
exceptional circumstances that would make the continued relationship detrimental to the
child’s best interest. Id. Second, this presumption must be established by clear and
convincing evidence, a heightened burden than the preponderance of the evidence standard
applied in custody cases. Id. at 499, 937 A.2d at 190. Third, the Court reasoned that the
General Assembly limited a juvenile court’s discretion by expressly including factors to
determine exceptional circumstances that justify termination of a parental relationship. Id.Considering the clarification of those elements, the Court remanded the matter for the
5
juvenile court “to make clear and specific findings with respect to each of the relevant
statutory factors[.]” Id. at 505, 937 A.2d at 194.
Upholding the juvenile court’s application of custody factors in TPR proceedings is
fundamentally at odds with the three critical elements outlined in Rashawn H. and
subsequent decisions relying on Rashawn H.’s elements. The first element in Rashawn H.
dictates that it is in the best interest of a child to maintain the parental relationship. Unless
there is a finding of unfitness or exceptional circumstances, the parental relationship should
not be terminated. In the custody context, unfitness “means an unfitness to have custody
of the child, not an unfitness to remain the child’s parent; exceptional circumstances are
those that would make parental custody detrimental to the best interest of the child.” Id. at
498, 937 A.2d at 190 (emphasis in original). In applying the factors enunciated in Fam.
Law § 5–323(d), the juvenile court could not find parental unfitness or exceptional
circumstances that would result in a detriment to H.W. Additional factors may be
considered in the analysis, as long as the best interest of the child is “the touchstone for
courts in TPR cases.” In re Adoption of Ta’Niya C., 417 Md. 90, 111, 8 A.3d 745, 757
(2010). As the Majority points out, those factors should “relate to the statutory inquiry
regarding a parent’s unfitness or the presence of exceptional circumstances that make
continuing the relationship detrimental to the child’s best interests.” Majority Slip Op. at
17. The custody factors considered by the juvenile court indicated supra, are directly
correlated to a child’s best interest in the custody of a particular caretaker. Utilizing
custody factors may ultimately bolster a finding of exceptional circumstances where one
may not have existed. Although the Majority posits that the juvenile court’s reliance on
6
custody factors did not taint the TPR decision, there is, ultimately, no way to guarantee that
it did not. Juvenile courts should be cautioned against improperly piecemealing factors
from other statutes or cases to bootstrap the desired goal of terminating a parent’s rights.
The second element from Rashawn H. similarly leads to a conclusion that custody
factors have no place in a TPR proceeding. A heightened burden of proof reflects the
seriousness of TPR proceedings. Because a TPR proceeding could result in a complete
rescission of the parental-child relationship, the specific factors enumerated in Fam. Law
§ 5–323(d) are necessary measures to ensure protection of a parent’s fundamental right to
raise a child. See Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060 (2000)
(protecting the right “to make decisions concerning the care, custody, and control of their
children[ ]” under the Fourteenth Amendment of the United States Constitution.).
As the Court in Rashawn H. articulated in its third element, the express inclusion of
factors to consider in Fam. Law § 5–323(d) indicates that the General Assembly sought to
focus a juvenile court’s discretion when determining exceptional circumstances that justify
termination of a parental relationship. “[I]t is clear that the General Assembly’s extensive
list of factors, when considered in the light of the standing presumption favoring parental
rights, reflect the spirit that termination is an alternative of last resort, and is not to be taken
lightly.” In re Adoption/Guardianship of Amber R., 417 Md. 701, 715, 12 A.3d 130, 138
(2011). This Court recognized that TPR proceedings are “different in kind and not just in
degree[ ]” from custody disputes, Rashawn H., 402 Md. at 496, 937 A.2d at 188 and that
the General Assembly “set forth criteria to guide and limit the court[.]” Id. at 499, 937
A.2d at 190. Although similar factors may be relevant in both contexts, the ultimate
7
inquiries are distinct. Much like we have explained that “a child’s prospects for adoption
must be a consideration independent from the termination of parental rights,” In re
Adoption/Guardianship of Victor A., 386 Md. 288, 317, 872 A.2d 662, 679 (2005),
similarly custody is too. Although a juvenile court may consider a host of other relevant
factors, the statutory directive must be followed.
In sum, it was reversible error for the juvenile court to consider the four custody
factors utilized to find exceptional circumstances. “[I]f no parental unfitness or exceptional
circumstances exist, there is no need to inquire further as to where the best interest of the
child lies.” Ta’Niya C., 417 Md. at 105, 8 A.3d at 753 (internal quotations and citations
omitted). If the court could not find parental unfitness or exceptional circumstances, the
court’s analysis should have gone no further. Accordingly, I would affirm the judgment
of the Court of Special Appeals.
8