Argued: April 6, 2018
Circuit Court for Baltimore City Case No.: T15280012
Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.
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).
AND LEGAL PROCEEDINGS
was born in April 2012 to S.B. ("Mother"), an
18-year-old former CINA 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.
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Order of Protective Supervision, which was rescinded in
gave birth to twins, H.J. ("Brother") and H.J.
("Sister") 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.
three children were declared CINA.
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.
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
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.
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 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.
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 . . . ."
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."
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 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
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
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
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.
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.
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.
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
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 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.
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.
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.
Juvenile Court's Findings
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.
Acknowledging the fundamental right of parents, the court
also emphasized that the State has an interest in protecting
vulnerable 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),  as
well as nine additional factors to "determin[e] whether exceptional
1. Length of time child has been away from the biological
2. Age of child when care was assumed by caretakers[;]
3. Possible emotional effect on child if custody changed to
4. Possible emotional effect on child if custody is given to
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
7. Intensity and genuineness of parent's desire to have
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.
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 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.
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
granted certiorari to resolve the following
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 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?
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.
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).
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 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
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
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[, ]"
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 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
Id. at 191.
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.
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.
Transcendent Standard And FL § 5-323
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.
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 . .