FAMILY LAW - SIBLING VISITATION - FINDING OF PARENTAL UNFITNESS
OR EXCEPTIONAL CIRCUMSTANCES MUST PRECEDE BEST INTERESTS
INQUIRY

Before a court may order that a sibling, whether full, half, or CINA, have visitation with
another sibling, contrary to that sibling’s parent’s wishes, the court must make a threshold
finding of parental unfitness or exceptional circumstances indicating that a lack of sibling
visitation will have a substantial deleterious effect on the sibling for whom visitation is
sought.
Circuit Court for Carroll County
Case No. 06-I-10-005291
Argued: October 3, 2013            IN THE COURT OF APPEALS OF
                                             MARYLAND


                                                  No. 15

                                          September Term, 2013


                                             In re: Victoria C.


                                              Barbera, C.J.
                                              Harrell
                                              Battaglia
                                              Greene
                                              Adkins
                                              McDonald
                                              Rodowsky, Lawrence F.
                                               (Retired, Specially
                                                    Assigned),


                                                            JJ.


                                         Opinion by Battaglia, J.
                                      Greene and Adkins, JJ., dissent.


                                        Filed: March 27, 2014
       In the present case we are called upon to address the applicability of our holding in

Koshko v. Haining, 398 Md. 404, 441, 921 A.2d 171, 192-93 (2007), in which we recognized

that parents of a minor child have the fundamental right to make decisions regarding the care,

custody, and control over their child such that third parties seeking visitation contrary to the

parents’ wishes must make a prima facie showing that the absence of such visitation would

have a “significant deleterious effect” on the child, i.e., “exceptional circumstances.” 1 Our

Koshko decision followed the United States Supreme Court’s ruling in Troxel v. Granville,

530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), in which the Court ruled as

unconstitutional a Washington statute, which permitted any third party to seek visitation with

a minor child as long as a trial court determined that it was in the child’s best interest,

because the statute afforded no presumption in favor of parental decision-making.

       Today we address the ability of Victoria C., born on August 25, 1993, to visit with her

half-siblings, Lance and Evan, over the objections of their biological father, George C., from

whom Victoria C. is estranged, so much so that Victoria C. had been declared a Child in

Need of Assistance, and their biological mother, Kieran C. After the Circuit Court sitting

as a Juvenile Court determined that supervised visitation by Victoria C. with Lance and Evan

was appropriate upon such recommendation by a master, the Court of Special Appeals




       1
         In Koshko v. Haining, 398 Md. 404, 441, 921 A.2d 171, 192-93 (2007), we also
referred to parental unfitness as a basis that would justify overriding a parental decision with
respect to visitation. Parental unfitness is not in issue in the present case, so we do not
address it.
reversed, holding that Victoria C. had not proven exceptional circumstances within our

Koshko dictates. Victoria C. petitioned for certiorari, which we granted, to resolve three

questions, which we have consolidated into one and rephrased for clarity:2

      Does the analytical framework established by Koshko v. Haining, 398 Md.
      404, 921 A.2d 171 (2007), which requires a third party seeking visitation of a
      minor child, contrary to the parents’ wishes, to make a prima facie showing of
      exceptional circumstances before a court may award visitation to a third party,
      apply when a woman, previously adjudicated a Child in Need of Assistance,
      seeks visitation with her siblings?

We will respond yes and explain.

      Victoria C. was declared a Child in Need of Assistance3 in April of 2010 after her


      2
          In her Petition for Certiorari, Victoria presented the following three issues for
review:

      1. It is desirable and in the public interest to treat children in need of assistance
      under the best interest standard and to diverge from this standard, regardless
      of age, is contrary to the statutory authority granted to the juvenile court[.]
      2. It is desirable and in the public interest to differentiate a sibling from a
      grandparent as in the decision in Koshko v. Haining, 398 Md. 404 (2007) and
      the decision in In re Tamara R., 136 Md. App. 236 (2000) should remain the
      Maryland standard for sibling visitation.
      3. It is desirable and in the public interest to limit exceptions as well as appeals
      to those delineated matters specifically enumerated per Maryland Rule 11-111
      and review per the clearly erroneous standard.


      3
       Section 3–801(f) of the Courts and Judicial Proceedings Article, Md. Code (1974,
2013 Repl. Vol.) defines a Child in Need of Assistance as:

      (f) Child in need of assistance. - “Child in need of assistance” means 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
                                                                               (continued...)

                                               2
father, George C., would not allow her to return to the home that he shared with his wife

Kieran C., and their two children Lance, then four-years old, and Evan, then two-years old.

After Victoria C.’s mother committed suicide in 2003, she lived with her father, but in 2009,

she was sent to live with her aunt in Texas, after the Department of Social Services

investigated an allegation of abuse against George C.4 Victoria C.’s aunt sent her back to

Maryland one year later, and George C. did not permit Victoria C. to return to his home.

Instead, he made arrangements for Victoria C. to stay in a local hotel; Victoria C., however,

ran away and was ultimately placed by the Department of Juvenile Services in the San Mar

Children’s home, located in Boonsboro, Maryland.

       The Carroll County Department of Social Services, thereafter, filed a Petition to

declare Victoria C. a Child in Need of Assistance (CINA), which was granted by the Circuit

Court sitting as a Juvenile Court for Carroll County. The court adjudicated Victoria C. a

CINA after determining that continued residence in George C.’s home was contrary to

Victoria C.’s welfare:


(...continued)
                        (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
       4
          Victoria C.’s school had reported suspected physical abuse to the Department of
Social Services after Victoria C. arrived at school with bruising in her left eye area;
ultimately, the Department’s investigation resulted in a finding of “indicated,” which Section
5-701(m) of the Family Law Article, Md. Code (1999, 2012 Repl. Vol.) defines as a “finding
that there is credible evidence, which has not been satisfactorily refuted, that abuse, neglect,
or sexual abuse did occur.” Ultimately the determination of Victoria C.’s status as a Child
in Need of Assistance was based upon the inability to return her to the father’s home.

                                                3
               [T]he Respondent’s mother is deceased and her father is unwilling to
       have her at this time due to the past history he has with respect to her (prior
       child protective services investigation resulted in an “indicated” finding
       resulting in the father’s sending Respondent to Texas to live with a maternal
       aunt.). The child was with the aunt from approximately February 23, 2009
       until March 5, 2010, at which time the child was returned to Maryland. The
       father attempted to house the child at a local hotel, but she ran away and was
       ultimately placed at San Mar’s Children’s home after intervention by the
       Department of Juvenile Services. Further information was detailed on the
       record.
       The court further finds,
               That the evidence presented sustained a finding that because of the
       emergent nature of the situation, such reasonable efforts to prevent or
       eliminate the need for removal of the child could not be made; the emergent
       nature that existed is that: See above. The child had been housed at a local
       hotel from which she ran away and then was reported as a runaway. She was
       referred to the Department of Juvenile Services; and the intervention of the
       Department of Social Services became necessary due to prior incidents of
       alleged abuse by the Respondent’s father; the Respondent’s mother is
       deceased.

Victoria C. remained in the custody of the Carroll County Department of Social Services for

placement in a therapeutic group home, the Nicodemus House, and eventually went into

foster care.   George C.’s parental rights over Victoria C. were not terminated; the

permanency plan5 reflected a goal of reunification with George C.




       5
         Section 5-525(f)(1) of the Family Law Article, Md. Code (1999, 2012 Repl. Vol.)
states in relevant part:

               (f) Development of a permanency plan. – (1) In developing a permanency plan
               for a child in an out-of-home placement, the local department shall give
               primary consideration to the best interests of the child, including consideration
               of both in-State and out-of-state placements.


                                               4
       The Circuit Court sitting as a Juvenile Court conducted periodic review hearings,6

during the first of which Victoria asked to visit with Lance and Evan, the minor children of

George C. and Kieran C., who had been married in 2005. With respect to her visitation

request, the master assigned to the case made the following findings:

              The Respondent would like to have contact with her half-siblings.
       Visitation has not occurred with the Respondent’s father thus far. Other
       information regarding compliance with Court Orders was detailed on the
       record. According to the Respondent, the therapy sessions had conflicted with
       her work schedule, but that issue is being resolved. She would like to see her
       siblings.
              The Respondent’s father stated that there is not a significant
       relationship with the Respondent at this time and does not believe it would be
       appropriate to have contact with the younger half-siblings at this time.
       Otherwise, he will cooperate with the other Court’s directives.

Based on these findings, the master’s recommendation was that “visitation between the



      6
       Section 3-823(h) of the Courts and Judicial Proceedings Article, Md. Code (1974,
2013 Repl. Vol.), provides that the Juvenile Court must conduct periodic review hearings:

              (h) Periodic reviews.—(1)(i) Except as provided in
              subparagraphs (ii) and (iii) of this paragraph, the court shall
              conduct a hearing to review the permanency plan at least every
              6 months until commitment is rescinded or a voluntary
              placement is terminated.
                      (ii) The court shall conduct a review hearing every 12
              months after the court determines that the child shall be
              continued in out-of-home placement with a specific caregiver
              who agrees to care for the child on a permanent basis.
                      (iii) 1. Unless the court finds good cause, a case shall be
              terminated after the court grants custody and guardianship of the
              child to a relative or other individual.
                      2. If the court finds good cause not to terminate a case,
              the court shall conduct a review hearing every 12 months until
              the case is terminated. . . .

                                              5
Respondent and her half-siblings shall occur only if and when therapeutically indicated.”

George C., thereafter, filed exceptions to the master’s recommendation.7 Ultimately, the

visitation issue was deferred pending another review hearing in which renewal of the

relationship between Victoria C. and her father would be revisited:

             ORDERED that Victoria C. and her father, George C., will attend
      family counseling with Joan McInerney in the hope of renewing their
      relationship. The first session will be for Victoria C. and the counselor, the
      second session will be for George C. and the counselor, and then the third
      session will be both parties together; and it is further
             ORDERED that a review hearing will be scheduled for mid-January of
      2011 to see if the parties have made progress in renewing their relationship.
      At this hearing, the parties agree that the issue of sibling visitation can be
      addressed by the court if the parties do not agree on the issue. Both parties
      will be able to present testimony and evidence at such time on the issue of
      sibling visitation. . . .

      Efforts at reunification between George C. and Victoria C. failed, and prior to the

scheduled review hearing, which was postponed until May of 2011, Kieran C., Lance and



      7
        Rule 11-111(c) provides that any party may file exceptions to a master’s findings,
conclusions, recommendations, and proposed orders:

              c. Review by court if exceptions filed. Any party may file exceptions
      to the master's proposed findings, conclusions, recommendations or proposed
      orders. Exceptions shall be in writing, filed with the clerk within five days after
      the master's report is served upon the party, and shall specify those items to
      which the party excepts, and whether the hearing is to be de novo or on the
      record.
              Upon the filing of exceptions, a prompt hearing shall be scheduled on
      the exceptions. An excepting party other than the State may elect a hearing de
      novo or a hearing on the record. If the State is the excepting party, the hearing
      shall be on the record, supplemented by such additional evidence as the judge
      considers relevant and to which the parties raise no objection. In either case the
      hearing shall be limited to those matters to which exceptions have been taken.

                                               6
Evan’s mother, moved to intervene as a party, asserting that “[a]s the mother of the children

with whom the court is considering visitation, she has a right to act as a party in these

proceedings and participate in the case to the extent that her children are now involved,”

which the Circuit Court sitting as a Juvenile Court granted. The assigned master, thereafter,

heard testimony regarding the effect on Victoria C. of not having visitation with her half-

siblings, as well as the estrangement between Victoria C. and George and Kieran C. After

Victoria C.’s counsel presented her case, George and Kieran C. moved for judgment, arguing

that pursuant to this Court’s decision in Koshko, Victoria C. had not met her burden “to show

prima facie evidence of either parental unfitness or exceptional circumstances demonstrating

the current or future detriment to the child absent visitation from that third party.” The

master denied the motion, relying on the Court of Special Appeals’s decision in In re Tamara

R., 136 Md. App. 236, 764 A.2d 844 (2000)8 :

             In review of, obviously review of Koshko and the particular reference
       to Tamara R., refers strictly to the portion where the court in Tamara R., at


       8
         In In re Tamara R., 136 Md. App. 236, 764 A.2d 844 (2000), decided before Koshko
v. Haining, 398 Md. 404, 921 A.2d 171 (2007), the Court of Special Appeals considered
whether Tamara R., a fourteen-year old CINA, could visit with her half-siblings over their
parents’ objection. The court concluded that:

       The State’s interest in the protection of a minor child who has been removed
       from her parent’s care is sufficiently compelling to justify over-riding her
       parent’s opposition to visitation with her sibling, if there is evidence that
       denial of sibling visitation would harm the minor child who is separated from
       her family; it is not necessary that denial of visitation would also harm the
       siblings whom the separated child seeks to visit.”

In re Tamara R., 136 Md. App. at 254, 764 A.2d at 884.

                                              7
       page 252 indicates that the best way to determine the best interest of a child
       with regard to a parent’s decision to decline visitation over whom the parent
       has custody, and to place the burden on the non-parent seeking visitation to
       rebut that presumption.
              However, Tamara continued with a rather lengthy review of not only
       Troxel but also other states at page 254 through 255 regarding the significant
       and specific relationship between siblings and a sibling who is, again, out of
       the home and seeking visitation, and for a determination by the court as to
       harm to the child who is out of the home at this point with respect to not
       having visitation with the natural half-siblings.
              And at this time, based upon the Court looking at this matter in the light
       most favorable, at this time, to Victoria’s motion, and looking at Respondent’s
       Exhibit No. 2, the Court at this time will deny the motion for judgment based
       on that specific reference in Tamara R.

       George and Kieran C., thereafter, testified about the potential adverse effects on Lance

and Evan that could result from visitation with Victoria C. George C. related that he believed

it would be “emotionally damaging to the boys” to introduce Victoria C. into their lives, as

a result of the “strong negative feelings” Victoria C. harbored toward him; rather, he believed

that he should at least have “a neutral relationship with my daughter before she can have a

relationship with the two young boys.” Kieran C., likewise, testified that she did not “feel

comfortable introducing my two young children to someone I don’t already have at least a

neutral relationship with” and that she was concerned with “the hostility my stepdaughter

displays to my husband. I am concerned about how she might, unintentionally, but might

influence the relationship between my sons and my husband and my sons and myself.”

       After concluding the hearing, the master ultimately made the following findings with

respect to the visitation issue:

       Your Master finds that the Respondent has, since the death of her mother in


                                              8
       2003, had many changes in her life, specifically beginning with her father’s
       remarriage in 2005. For some time she resided with her father, stepmother,
       older brother, William and younger brothers, Lance and Evan, when she
       admittedly had a close relationship with her younger brothers. However, in
       March 2009 she was sent (by her father) to live with a maternal aunt, Carrie
       . . . , while an investigation was ongoing here in Carroll County that resulted
       in an “Indicated” finding as to her father. During the time that the Respondent
       resided in Texas, no effort was made by her father or stepmother to maintain
       contact with her siblings. The Respondent testified that she did not
       specifically ask to speak to her brothers. When her aunt returned her to
       Maryland in March 2010, Victoria was not permitted to return home by her
       father or stepmother and therefore was then placed in foster care. She was
       adjudicated a Child In Need of Assistance in April, 2010. Since that time she
       has summarily been denied a relationship with her siblings, including that there
       are no current pictures of her on display in the home and that Mr. [C.]
       indicated he would move away from the area in order to avoid visitation
       between the Respondent and her siblings; that she has been told it is her fault
       that she is not living in the family home; that Lance has asked about her on
       occasion, but he has been told that she is “living someplace else (whether
       Texas or Maryland) at this time”; that within the past year her “bedroom” is
       now being used for another purpose; that her stepmother believes that she will
       “unintentionally” influence the boys relationship with their father because of
       the hostility she displays toward her father.

The master recommended supervised visitation, concluding that exceptional circumstances

existed in that Victoria C. would suffer a “‘significant deleterious effect,’” without

discussing any effect of a lack of visitation on her siblings:9

       There is no question that Victoria has and will continue to suffer a “significant
       deleterious effect” Aumiller v. Aumiller, 183 Md. App. 71, 84-85 (2008) if not
       permitted some type of visitation with her siblings. It is difficult to compare
       the sibling relationship equally with that of grandparents to these two young



       9
         The master also recommended that Victoria C.’s permanency plan be changed from
reunification to “another permanent planned living arrangement,” because “the respondent
is approaching her 18th birthday and the interaction with the parent has been strained to date,
thereby making reunification unlikely.”

                                               9
       boys, wherein, other courts have placed a greater priority on sibling
       visitation/contact citing the special bond between siblings that could cause
       irreparable harm if some minimal contact is not maintained. We look to In Re
       Tamara R., 136 Md. App. 236, 254-257 and 259 for a further discussion of this
       principle. See also Respondent’s Exhibit 2[10] and Fairbanks v. McCarter, 330
       Md. 39 (1993). Given the noted “unresolved trauma of both father and
       daughter” and the detrimental effect the lack of visitation with all of her
       siblings is having on the Respondent, Your Master finds that it is in her best
       interest to have supervised visitation with her younger step-brothers in an
       appropriate therapeutic setting. As the Respondent believed it appropriate for
       her father and step-mother to supervise said visitation the Carroll County
       Department of Social Services shall be responsible for assisting the
       Respondent, her father and step-mother with establishing said visitation in a
       therapeutic environment.

       George C. and his wife filed joint exceptions to the master’s recommendation, taking

exception to two factual findings,11 and challenging the master’s decision to deny their

motion for judgment, as well as the master’s ultimate conclusion recommending visitation

in light of Koshko:

       4.     The Master erred in not granting the Motion for Judgment at the
              conclusion of the Respondent’s case. The case law concerning
              visitation requests by third parties makes clear that there is a
              presumption in favor of parental decision-making that can only be
              overcome by a showing of parental unfitness or exceptional
              circumstances. Koshko v. Haining, 398 Md. 404 (2007). The
              Respondent’s case did not present a prime facie showing of parental
              unfitness or exceptional circumstances to survive the Motion for


       10
         Exhibit 2 was a letter written from Victoria C.’s therapist, opining that visitation
with Victoria C.’s half-siblings would be beneficial to Victoria.
       11
          Specifically, George and Kieran C. argued that the master’s finding that Victoria
C. had no contact with her siblings was an incomplete finding of fact because the finding
failed to note that Victoria C. had made no effort to contact her siblings while she was living
in Texas. They also challenged a factual finding by the master that Victoria C. had done well
in her foster care placement. Neither is in issue before us.

                                              10
     Judgment.
5.   The Master’s ultimate conclusion does not comply with the current
     state of the law concerning the rights of parents vis a vis requests by
     third parties for access to their children. Maryland courts have
     undertaken an analysis of the issue of third party visitation rights with
     the leading case being Koshko v. Haining, 398 Md. 404 (2007). The
     Koshko Court conducted an analysis of the history and evolution of the
     cases on grandparent visitation as well as other third party visitation
     cases such as sibling visitation in a case like this one in In Re Tamara
     R., 136 Md. App. 236 (2000). The Koshko Court set the standard for
     third party visitation cases.
6.   The Koshko Court noted, “Fit parents who are presumed to act in their
     children’s best interests, nonetheless may be hailed into court to defend
     their decisions absent any showing that they are unfit and without any
     requirement that the grandparents challenging the parental decision
     plead any exceptional circumstances that may tend to override the
     parental presumption. A proceeding that may result in a court
     mandating that a parent’s children spend time with a third party, outside
     of the parent’s supervision and against the parent’s wishes, no matter
     how temporary or modifiable, necessitates stronger protections of the
     parental right.” Koshko v. Haining, 398 Md. 404, 439 (2007).
             To address this need, the Koshko Court added a requirement of
     a threshold showing of either parental unfitness or exceptional
     circumstances indicating that the lack of visitation with the third party,
     in that case a grandparent, has a “significant deleterious effect” upon
     the children involved in the case. Id. at 441. Finally, the Court stated
     that the application of these principles would apply to both custody and
     visitation proceedings and to initial orders as well as modifications. Id.
     at 443-44.
7.   Post-Koshko, for third party custody or visitation actions, the analysis
     is the same - parents are presumed to act in the best interest of their
     children and the court cannot apply the best interest of the child
     standard until a threshold showing of parental unfitness or exceptional
     circumstances has been made. Koshko v. Haining, 398 Md. 404, 423,
     441 (2007).
8.   There was no showing of parental unfitness. The Master relies on a
     finding of exceptional circumstances. This concept has been addressed
     in Aumiller v. Aumiller, 183 Md. App. 71 (2008) and Brandenburg v.
     LaBarre, 193 Md. App. 178 (2010). In both of these cases, the court
     dealt with requests for visitation over the objection of fit parents. In

                                     11
              Aumiller, the court noted that exceptional circumstances would be
              defined on a case by case basis but that a refusal to allow visitation in
              and of itself would not support a finding of harm to the children to
              allow a finding of exceptional circumstances. Aumiller v. Aumiller,
              183 Md. App. 71, 83-84 (2008).
       9.     The Brandenburg Court noted that solid evidence and not speculation
              must be presented to support the harm by a lack of visitation and that
              type of evidence necessary to meet this burden might be expert
              testimony. Brandenburg v. LaBarre, 193 Md. App. 178, 190-91 (2010).
              Expert testimony was presented in this matter and that testimony
              supported the decision of the parents that sibling visitation was not
              appropriate.
       10.    The Master’s decision speaks only to the best interests of the
              Respondent. The Master made no consideration of the best interests
              of Lance and Evan [C.]. The Court must also consider the best interests
              of these children and whether putting these young children in the
              middle of the hostility between their sister and father serves their best
              interests. It is clear that, for these children, who were very young when
              the Respondent left and have no present relationship with her, . . .
              placed in the midst of the battle between warring parties will have no
              benefit as Joan McInerney testified, a likely detriment.
       11.    The law mandates that the parents decide how and when any sibling
              visitation should occur. Because visitation infringes on their
              fundamental liberty interest as parents, nothing less will satisfy the
              constitutional protections given to their role.

       Victoria responded that, “[t]he presumption in favor of parental decision-making

claimed by the Parents did not apply in this case, and Victoria’s constitutional right of

establishing and maintaining a relationship with her siblings was rightly affirmed.” She also

argued pursuant to the Court of Special Appeals’s decision in In re Tamara R., that her well-

being was a relevant consideration. She asserted, moreover, that Koshko was inapplicable

because sibling visitation cases should be analyzed under a different standard than

grandparent visitation cases, and unlike in Koshko, she was seeking supervised visitation.



                                             12
Finally, she alleged that a prima facie showing of exceptional circumstances had been made,

because exceptional circumstances are “defined on a case by case basis, which is exactly

what the Master has done in arriving at her decision.”

       Prior to the resolution of the exceptions, Victoria turned eighteen and informed the

Department of Social Services that she would be leaving her foster placement to live with

a friend.   The Circuit Court sitting as a Juvenile Court, thereafter, ordered that her

supervision by the Department be terminated. The court then held an exceptions hearing on

the issue of visitation in which no further evidence was adduced. After hearing argument,

the judge issued an opinion, denying the exceptions and ordering supervised visitation.

       In reaching his conclusion, the Circuit Court Judge also reviewed the Court of Special

Appeals’s decision in Tamara R., 136 Md. App. 236, 764 A.2d 844, in which the

intermediate appellate court determined that the juvenile court had jurisdiction to order that

a child in a foster care placement have visitation with her half-siblings, contrary to the

parent’s wishes, as long as there is a showing of harm to the child in foster care, because of

the State’s interest in protecting that child. Because, “Victoria C. has since left the DSS

system and, except for the history with the juvenile court system, she is otherwise a fully

functioning adult,” the judge did not apply the statutory framework for a Child in Need of

Assistance, and opined that there was no statutory basis for visitation; instead he derived a

“constitutionally sound common law preference accorded to siblings in family matters,” and

a “broader rule” that “a sibling seeking visitation of another sibling that is still in the care,



                                               13
custody and control of a fit parent, states a prima facie case for visitation when that sibling

is harmed by the denial of visitation,” which Victoria had proven:

               Under the rule of In re Tamara R., the Respondent presented a prima
       facie argument that she was entitled to visitation with her siblings because she
       offered evidence that there was a harm to herself resulting from the denial of
       visitation to her minor siblings. Thus, she met her burden as required by
       Maryland’s common law presumption in favor of siblings seeking visitation
       of their siblings in contested settings. Thus, the Master appropriately denied
       the motion for judgment.

       The judge reasoned, however, that the presumption in favor of visitation was rebutted

by the evidence presented by George and Kieran C. that visitation would harm Victoria’s

siblings, Lance and Evan, concluding, then, that “Victoria C. is left without a presumption

in favor of her, and thus must meet the more rigorous test . . . in Koshko.” According to the

judge, however, exceptional circumstances existed, based upon Kieran C.’s testimony that

Lance remembered Victoria C., from which the judge inferred Lance desired visitation, its

absence from which the judge inferred that Lance was harmed; that Victoria C. sought

visitation shortly after returning to Maryland from Texas; that the benefits of visitation to

Victoria C. would be great and the disruption to the lives of Lance and Evan would be

minimal; that Victoria C. had a genuine desire to visit with her siblings; and that Victoria C.

was in the situation as a result of George C.’s actions:

              Under Brandenburg and Aumiller, Evan’s lack of memory of Victoria
       can only be counted as a lack of visitation of her, and thus cannot amount to
       a harm that would “lead to an inference of substantial deleterious effects.”
       The testimony of both parents, however, is that Lance does remember Victoria.
       The Court infers that Lance would like to have contact with Victoria, and this
       raises an inference that there is a significant deleterious effect on Lance by


                                              14
virtue of denying him visitation with his older sister. This probably is enough
to meet the exceptional circumstances standard under Brandenburg in order
to overcome the burden with respect to Lance, however, the Court will also
look to the traditional factors in determining exceptional circumstances, as
developed in Ross v. Hoffman.
        Derived from custody cases, the factors used to determine the existence
of exceptional circumstances are: 1) the length of time the child has been away
from the biological parent; 2) the age of the child when care was assumed by
the third party; 3) the possible emotional effect on the child of a change of
custody; 4) the period of time which elapsed before the parent sought to
reclaim the child; 5) the nature and strength of the ties between the child and
the third party custodian; 6) the intensity and genuineness of the parent’s desire
to have the child; and 7) the stability and certainty as to the child’s future in the
custody of the parent. Ross v. Hoffman, 280 Md. 172, 191 (1977) (cited in
Brandenberg v. LaBarre, 193 Md. App. 178, 190 (2010), n. 15).
        As the Brandenburg court and courts before it noted, these factors are
not entirely applicable to visitation cases. However, here, at the time of the
visitation hearing, Victoria had been away from the children approximately
two years. Lance was approximately 3 years old, and Evan, 18 months when
Victoria left the family home. There is a concern over the possible emotional
effect on the children, as testified by both George and Kieran C. The first
appearance of Victoria’s request to visit her siblings appeared September 14,
2010, about four-and-a-half months after she was adjudged CINA (which
occurred April 26, 2010). There is no evidence that the relationship between
Lance, Evan, George and Kieran is anything but healthy. The uncontroverted
testimony is that, prior to Victoria’s leaving the family home, her relationship
with Lance was strong; it was less so with Evan, but nevertheless close. The
genuineness of Victoria’s desire to visit her siblings appears true, and is
uncontroverted. The intensity appears strong. See e.g., Hrg. Tr. at 16 (Q:
“Since you have been out of the home, can you tell us what the impact of not
seeing them has been on you?” A: “It has been like a hole, kind of. I just–I
miss them. They were an entire section of my life.”) Although Joan
McInerney, a private therapist, testified that Victoria’s feelings toward sibling
visitation were “[n]ot strong,” the Court discounts this testimony because the
purposes of those therapy sessions was aimed at reconciling the relationship
between Victoria and George C., which that witness testified she believed was
paramount to continuing her therapy.
        While there is concern over the possible emotional effect on the
children, the applicable traditional factors in determining exceptional
circumstances in balance appear to show exceptional circumstances. While

                                         15
       Victoria was in Texas, visitation would have been impractical if not
       impossible. She sought visitation within five months of being adjudged CINA,
       showing a desire to reestablish a relationship with her siblings. The disruption
       to the children’s lives seem to be minimal and the benefits to Victoria are
       great. While the parent-child relationship appears healthy between the two
       minors and the two parents, that relationship is likely to remain healthy also,
       despite visitation.
               Furthermore, it cannot be ignored that the reason Victoria C. is before
       the Court and the reason she does not have contact with her siblings to begin
       with is because she left the family home following a DSS investigation that
       found an indication of abuse against her father. The plan developed resulted
       in Victoria’s removal from the family home to her maternal aunt’s home in
       Texas. When circumstances changed, she returned to her home state of
       Maryland to be placed in a hotel because she was not accepted back into the
       family home, which resulted in her being taken into the limited guardianship
       of the State through the Carroll County Department of Social Services. This
       would also appear to be an exceptional circumstance determined on a “case-
       by-case” basis, as allowed by Aumiller.
               Because the Court can infer harmful effects on at least Lance that result
       in significant deleterious effects of losing the relationship with his sister,
       because the balance of applicable traditional factors show exceptional
       circumstances, and because the situation bringing Victoria C. before this Court
       appears in itself to be an exceptional circumstance, the Court finds that
       Victoria has met her burden in overcoming the presumption afforded parents
       in the upbringing of their children under the U.S. Constitution.

The judge then analyzed whether it was in Lance’s and Evan’s best interests to experience

visitation with Victoria C. and concluded it was:

       [T]he “sibling relationship has been widely recognized as an important one,
       which will be given significant consideration and protection by courts in cases
       involving the family.” In re Tamara R., supra. Lance clearly has asked about
       Victoria, whom he last saw when he was 3. Victoria had a loving relationship
       with Lance and Evan before she left the family home. This tends to show that
       it would be in Lance’s emotional best interest to see Victoria again. This side
       of the equation is strengthened by the significance placed upon the sibling
       relationship. With respect to Evan, there being a loving relationship with
       Victoria versus not having one favors visitation. While this would ordinarily


                                              16
       be balanced by the concerns of the parents, the fact that they are siblings tips
       the scales in favor of a finding that it is in Evan’s best interests to have
       visitation with Victoria.

       George and Kieran C. filed a timely notice of appeal, and in a reported opinion, the

Court of Special Appeals reversed, In re Victoria C., 208 Md. App. 87, 56 A.3d 338 (2012),

initially determining that the standard established in Koshko was applicable to the matter sub

judice, opining:

               We see no reason why the Koshko test does not apply in the instant
       case. George and Kieran clearly possess a fundamental liberty interest in the
       care, custody, and control of Lance and Evan. As a result, Victoria's petition
       for visitation must be considered within a framework that safeguards George
       and Kieran's constitutional right.

Id. at 98, 56 A.3d at 344. Our intermediate appellate court rejected Tamara R.’s common

law presumption and questioned the viability of Tamara R. in light of our decision in Koshko.

Even assuming Tamara R. survived, however, the Court of Special Appeals determined its

tenets were inapplicable in the instant case:

               We first note that In re: Tamara R. was decided seven years before the
       Court of Appeals decision in Koshko. In re: Tamara R., therefore, has limited
       utility to an analysis of third-party visitation post-Koshko. Still, assuming
       arguendo that the holding of In re: Tamara R. is still good law, it is
       distinguishable from the instant case.
                                              ***
               In this case, unlike In re: Tamara R., the sibling seeking visitation is an
       adult. Therefore, In re: Tamara R., in which the Court balanced the parent's
       constitutional interest against the State's interest in the protection of a minor
       child, is of limited relevance. Here, there is no State interest implicated.
       Although In re: Tamara R. emphasized the importance of sibling relationships,
       we do not read In re: Tamara R. to stand for the proposition that, unlike the
       standard applied for all other third parties seeking visitation, a different


                                                17
       standard should apply for adult siblings seeking visitation. We acknowledge
       that “Maryland courts ... have frequently expressed the view that ordinarily, the
       best interests and welfare of the children of the same parents are best served
       by keeping them together to grow up as brothers and sisters under the same
       roof.” Id. at 256, 764 A.2d 844. We further recognize that “the sibling
       relationship has long been recognized as an important one, which will be given
       significant consideration and protection by courts involving the family.” Id. at
       259, 764 A.2d 844. This relationship, however, has generally been discussed
       in the context of a sibling relationship between minor children, and in the
       instant case, the sibling seeking visitation is an adult.

Id. at 98-99, 56 A.3d at 344-45 (footnote omitted). After reasoning “that adult siblings, like

all third parties seeking visitation, are subject to the requirements of Koshko,” id. at 101, 56

A.3d at 345, the Court of Special Appeals concluded that exceptional circumstances did not

exist to warrant overcoming the presumption that George and Kieran C.’s decision

withholding permission from Victoria C. to visit with Lance and Evan was in their best

interests. The pivotal inquiry for exceptional circumstances, the Court of Special Appeals

reasoned, was not addressed, that being whether Lance and Evan would be harmed by their

inability to visit with Victoria C., not whether Victoria C. was harmed:

               Rather than focusing on whether the minor children were harmed by not
       having visitation with Victoria, both the Master and the circuit court
       considered the detriment suffered by Victoria from the absence of visitation
       with her siblings. While it may be true that Victoria has suffered unfortunate
       and regrettable harm, harm suffered by an adult as the result of a denial of
       visitation with minor children is not a consideration in a court's exceptional
       circumstances analysis. See Brandenburg, supra, 193 Md.App. 178, 996 A.2d
       939 (not considering harm to grandparents resulting from the denial of
       visitation); Aumiller, supra, 183 Md.App. 71, 959 A.2d 849 (focusing on
       whether harm to minor children was caused by denial of visitation rather than
       harm to grandparents). Instead, the focus must be on whether a minor child is
       harmed by the absence of visitation.


                                              18
Id. at 105-06, 56 A.3d at 348. Accordingly, the Court of Special Appeals reversed the

decision of the Circuit Court sitting as a Juvenile Court and remanded for an entry of an order

denying Victoria’s request for visitation.

       There are two major issues presented herein, the first of which is whether the Circuit

Court had jurisdiction to order sibling visitation. The Circuit Court Judge expressly stated

that there was no statutory basis to authorize such visitation, opining that “there is no statute

in Maryland similar to the Maryland grandparent visitation statute providing for sibling

visitation,” referenced in Koshko for jurisdictional authority; the judge, nevertheless

proceeded to order supervised visitation between Victoria C. and her siblings based upon

common law and constitutional jurisdictional authority derived from Tamara R. In order to

reach the merits of the matter before us, we assume without deciding, however, that

jurisdiction exists, although on remand, whether there is a jurisdictional basis to order sibling

visitation must be explored.12      The merits involve whether Koshko applies, so that


       12
          George C. did not question the authority of the Circuit Court sitting as a Juvenile
Court to order visitation between Victoria C. and her half-siblings. Although it is true that
the lack of jurisdiction can be raised sua sponte by this Court, Rule 8-131(a), County Council
v. Offen, 334 Md. 499, 508, 639 A.2d 1070, 1074 (1994), we do not want to do so without
giving the parties an opportunity to explore, brief, and present arguments regarding whether
a statutory basis for jurisdiction exists on remand.

        The quandary exists because of the necessity of having a statutory basis to order
visitation, such as we explored in Koshko for the Grandparent Visitation Statute, Section 9-
102 of the Family Law Article, Md. Code (1999, 2012 Repl. Vol.). The Circuit Court Judge
opined that there was no statutory basis to order sibling visitation; Victoria C., however, has
                                                                                    (continued...)

                                               19
exceptional circumstances relative to Lance and Evan must be proven in this case before




(...continued)
directed us, as well as others, to consider the rubric of Section 5–525.2 of the Family Law
Article, which provides:

       Out-of-home placement and foster care – Sibling placement and visitation rights.
         (a) Placement of siblings. – (1) A local department shall place together
       siblings who are in an out-of-home placement under § 5-525 of this subtitle if:
          (i) it is in the best interests of the siblings to be placed together; and
           (ii) placement of the siblings together does not conflict with a specific
       health or safety regulation.
         (2) If placement of the siblings together conflicts with a specific health or
       safety regulation, the local department may place the siblings together if the
       local department makes a written finding describing how placement of the
       siblings together serves the best interests of the siblings.
        (b) Visitation rights. – (1) Any siblings who are separated due to a foster care
       or adoptive placement may petition a court, including a juvenile court with
       jurisdiction over one or more of the siblings, for reasonable sibling visitation
       rights.
         (2) If a petitioner under this subsection petitions a court to issue a visitation
       decree or to amend an order, the court:
           (i) may hold a hearing to determine whether visitation is in the best interest
       of the children;
           (ii) shall weigh the relative interests of each child and base its decision on
       the best interests of the children promoting the greatest welfare and least harm
       to the children; and
            (iii) may issue an appropriate order or decree.

Section 5-525.2 does not apply in the matter sub judice. Section 5-525 is part of a larger
statutory scheme entitled “Child Welfare Services; Foster Care.” Section 5-525.2(b),
authorizing the juvenile court to order sibling visitation, refers to siblings who are identified
in Section 5-525.2(a) as those who are in an “out-of-home placement.” Read in its proper
context, therefore, Section 5-525.2(b) is applicable only to visitation among siblings who are
in an out-of-home placement, which does not include Lance and Evan.

       The parties will have the opportunity, on remand, to brief and argue whether there are
any other statutory bases for sibling visitation.

                                               20
visitation by a CINA sibling can be ordered.13

            Parents have a fundamental right to direct and control the upbringing of their

children. In re Samone H., 385 Md. 282, 300, 869 A.2d 370, 380 (2005). The ability to deny

visitation by third parties to the minor children, absent exceptional circumstances, Koshko

v. Haining, 398 Md. 404, 430, 921 A.2d 171, 186 (2007), is an undeniable part of that right.

Victoria C. asserts, however, that her status as a Child in Need of Assistance, as well as her

status as a sibling, renders her without, rather than within, a “third-party”designation, and

therefore, Koshko is inapposite to the instant matter. Our jurisprudence makes clear that third

parties are those who are not parents.

       Our most significant recent opinion in which this Court defined who is a “third party”

is McDermott v. Dougherty, 385 Md. 320, 418, 869 A.2d 751, 808 (2005). In McDermott,

we were presented with a custody dispute between the child’s father, Mr. McDermott, and

the maternal grandparents, to whom he had entrusted the care of his son until he could return

from sea from a tour of duty as a merchant seaman. We ultimately concluded that the

grandparents were required to show parental unfitness or exceptional circumstances in order




       13
         Victoria C. asserts, initially, that George C. has waived his argument that the Circuit
Court’s ruling ordering visitation violated his parental rights because, when the dispute
regarding sibling visitation initially arose at a review hearing, the parties agreed to defer
resolution of the issue pending family therapy; in Victoria C.’s view, “[h]aving accepted the
authority of the Juvenile Court to decide the sibling visitation,” George C. “should not be
heard to complain now that its exercise of that authority unconstitutionally interfered with
his parental rights.” We find no merit in this argument.

                                              21
to retain custody, before a trial court could engage in a best interests analysis.14 We reasoned

that, “the non-constitutional best interests of the child standard, absent extraordinary (i.e.,

exceptional) circumstances, does not override a parent's fundamental constitutional right to

raise his or her child when the case is between a fit parent, to whom the fundamental parental

right is inherent, and a third party who does not possess such constitutionally-protected

parental rights.” Id. at 418, 869 A.2d at 808 (emphasis added). A person not a parent, then,

is a third party.

       Since McDermott, we have held in Koshko that grandparents are third parties, but

most significantly, we declared that a de facto parent was a third party in Janice M. v.

Margaret K., 404 Md. 661, 948 A.2d 73 (2008). In Janice M., Margaret K., who had been

the same sex partner of Janice M., sought custody and visitation with Janice M.’s adopted

daughter, Maya, with whom Janice and Margaret had lived with for five years while

performing parenting functions, having “divided the responsibilities for preparing Maya’s

food, changing her diapers, bathing her, handling her schooling, addressing her healthcare

needs, and performing most other caretaking duties.” Id. at 666, 948 A.2d at 76. After the

parties’ separation, Margaret K. became dissatisfied with the amount of visitation Janice M.


       14
          The trial court in McDermott v. Dougherty, 385 Md. 320, 422, 869 A.2d 751, 811
(2005), had determined that exceptional circumstances existed because of Mr. McDermott’s
extended time at sea. We disagreed and opined that involuntary time away from a child as
a result of employment could not constitute exceptional circumstances.




                                              22
permitted with Maya; she filed a complaint in the Circuit Court for Baltimore County seeking

custody, or alternatively, visitation. The Circuit Court Judge denied custody. He concluded

that Margaret K. was a “de facto” parent because Janice M. had consented to and fostered

the parental relationship between Margaret K. and Maya, Margaret K. had lived with Maya,

she performed parenting functions for Maya, and a parent-child bond had been forged,

enabling him to apply a “best interests” standard and order visitation.

       The Court of Special Appeals affirmed, and we granted certiorari, to consider the

issue of “whether, when the party asserting visitation rights meets the requirements for de

facto parent status, a court, without first finding exceptional circumstances or parental

unfitness, may apply the best interests of the child standard.” Id. at 680, 948 A.2d at 84.

       We declined to “recognize de facto parent status . . . as a legal status in Maryland,”

reasoning that, to do so, would “short-circuit[]” the requirement that a third party show

parental unfitness or exceptional circumstances, as articulated by McDermott and Koshko.

Id. at 685, 948 A.2d at 87. We opined, rather, that “[e]ven were we to recognize some form

of de facto parenthood, the real question in the case . . . will remain, whether, in a custody

or visitation dispute, a third party, non-biological, non-adoptive parent, who satisfies the test

necessary to show de facto parenthood should be treated differently from other third parties,”

and concluded that “where visitation or custody is sought over the objection of the parent,

before the best interest of the child test comes into play, the de facto parent must establish

that the legal parent is either unfit or that exceptional circumstances exist.” Id. at 685, 948


                                               23
A.2d at 87. This is because:

       A fair reading of McDermott and Koshko leads to no other conclusion. We
       reiterate what we said in McDermott:

              “In the balancing of court-created or statutorily-created
              ‘standards,’ such as ‘the best interest of the child’ test, with
              fundamental constitutional rights, in private custody [and
              visitation] actions involving private third-parties where the
              parents are fit, absent extraordinary (i.e., exceptional)
              circumstances, the constitutional right is the ultimate
              determinative factor; and only if the parents are unfit or
              extraordinary circumstances exist is the ‘best interest of the
              child’ test to be considered....”

Id. at 685-86, 948 A.2d at 87 (alterations in original), quoting McDermott, 385 Md. at

418-19, 869 A.2d at 808-09. A person, thus, seeking visitation, who is not a biological or

adoptive parent is a third party. A sibling, whether full, half or CINA, remains a third party.

Accordingly, we overrule the portions of Tamara R. that are inconsistent with this holding.

       We note, finally, with respect to this issue, that Victoria C.’s relationship with Kieran

C. provides further support for our conclusion that Victoria C. is a third party. Kieran is not

a biological parent of Victoria C. There is nothing in the record to suggest that Kieran

adopted Victoria C. Thus, Kieran’s views as to with whom her two biological children may

associate is entitled to the same respect as the parents in Koshko. Victoria C. lived with her

father and Kieran for only approximately four years.         Although the DNA of George

contributes to who Victoria C. is today, Victoria C. shares no other legal relationship with

the marital unit of George and Kieran. Victoria C., therefore, as to her half-brothers, stands



                                              24
in very much the same relationship as the grandparents (whether maternal or paternal) did

to the minors at the heart of Koshko.

       Having concluded that Victoria C. is a third party, we turn now to the application of

Koshko. In Koshko, we considered the validity of the Grandparent Visitation Statute, Section

9-102 of the Family Law Article, Maryland Code (1984, 2004 Repl. Vol.),15 after a trial court

ordered visitation over the objection of the children’s parents, the Hainings. The Hainings

appealed and argued, inter alia, that as applied to them, the Grandparent Visitation Statute

impermissibly interfered with their parental rights because the trial court engaged in a “best

interests of the child” analysis without a threshold showing of either parental unfitness or

exceptional circumstances.16 We agreed and concluded that before a court may order third-


       15
            The Grandparent Visitation Statute provided:

                An equity court may:
                        (1) consider a petition for reasonable visitation of a
                grandchild by a grandparent; and
                        (2) if the court finds it to be in the best interests of the
                child, grant visitation rights to the grandparent.

Md. Code (1984, 2004 Repl. Vol.), § 9-102 of the Family Law Article. The Grandparent
Visitation Statute continues to reside, unamended, at Section 9-102 of the Family Law
Article, Md. Code (1999, 2012 Repl. Vol.).


       16
          The Hainings also challenged the facial constitutional validity of the Grandparent
Visitation Statute in light of the Supreme Court’s decision in Troxel, because the statute
afforded no presumption in favor of parental decision-making. We declined to declare the
statute unconstitutional, instead reading into the statute a presumption that parental decisions
regarding their children are valid, applying the “‘canon of constitutional avoidance’,which
                                                                                   (continued...)

                                                25
party visitation, third parties must make a prima facie showing of parental unfitness or

exceptional circumstances that the lack of visitation “has a significant deleterious effect upon

the children who are the subject of the petition.” Koshko, 398 Md. at 441, 921 A.2d at 193

(footnote omitted) (emphasis added).

       In the instant case, both the master and the trial judge ultimately found that there were

exceptional circumstances, but both erred by relying on perceived harm to Victoria C., not

to Lance and Evan. The master concluded that, “Victoria has and will continue to suffer a

‘significant deleterious effect.’” (emphasis added). The Circuit Court Judge, likewise,

focused primarily on the harm to Victoria C., while relying only on building blocks of

inferential adverse effects on Lance and Evan; the only finding of harm to Lance or Evan that

the Circuit Court Judge made was that Lance remembered Victoria C., leading the judge to

infer that Lance wanted to visit with her, thereafter, inferring a substantial deleterious effect

on Lance as a result of a lack of visitation. There was no evidence on this record which

demonstrated that Lance or Evan were harmed from a lack of visitation with Victoria C.

Evidence adduced was only to the contrary.

       The judgment of the Court of Special Appeals reversed the order granting visitation




(...continued)
provides that ‘a statute will be construed so as to avoid a conflict with the Constitution
whenever that course is reasonably possible.’” Koshko v. Haining, 398 Md. 404, 425-26, 921
A.2d 171, 183 (2007) (footnote omitted), quoting In re James D., 295 Md. 314, 327, 455
A.2d 966, 972 (1983).


                                               26
in favor of Victoria C. and remanded the case to the Circuit Court sitting as a Juvenile Court

to enter an order denying the request for visitation, In re Victoria C., 208 Md. App. at 107,

56 A.3d at 349; we agree that the order should be reversed, but because the master and the

Circuit Court Judge relied on Tamara R., rather than on the applicable Koshko standard, we

will remand for a consideration of whether jurisdiction actually exists to order sibling

visitation and, if so, whether a deleterious effect on Lance and Evan can be proven.

                                           JUDGMENT OF THE COURT OF SPECIAL
                                           APPEALS AFFIRMED IN PART AND
                                           VACATED IN PART; CASE REMANDED
                                           TO THE COURT OF SPECIAL APPEALS
                                           WITH INSTRUCTIONS TO VACATE THE
                                           JUDGMENT OF THE CIRCUIT COURT
                                           FOR CARROLL COUNTY AND TO
                                           REM AND TO TH A T C O U R T FO R
                                           FURTHER      PROCEEDINGS        IN
                                           ACCORDANCE WITH THIS OPINION.
                                           COSTS TO BE PAID BY PETITIONER.




                                             27
Circuit Court for Carroll County
Case No: 06-I-10-005291
Argued: October 3, 2013
                                      IN THE COURT OF APPEALS

                                             OF MARYLAND

                                                   No. 15

                                           September Term, 2013


                                           IN RE: VICTORIA C.


                                            Barbera C.J.,
                                            Harrell
                                            Battaglia
                                            Greene
                                            Adkins
                                            McDonald
                                            Rodowsky, Lawrence F., (Retired,
                                                          Specially Assigned),

                                                            JJ.


                                   Dissenting Opinion by Adkins, J., which
                                               Greene, J. joins.


                                            Filed: March 27, 2014
        Respectfully, I dissent. The Majority overstates the certainty of our jurisprudence on

sibling visitation. In so doing, it unwisely pilots the law on parental rights beyond the

holdings of our prior cases, as well as the Supreme Court decisions on which they were

founded. At the same time, it denies children who are removed from the family without fault

of their own the right to maintain a relationship with their siblings. Further, the Majority,

adopting the mantle of a fact-finder, substitutes its own factual conclusions for those of the

trial court.

                               The Majority’s Legal Analysis

        The Majority derives its certainty regarding our jurisprudence from three cases in

which sibling visitation was not even considered. The Majority relies on our holdings in

Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), McDermott v. Dougherty, 385 Md.

320, 869 A.2d 751 (2005), and Janice M. v. Margaret K., 404 Md. 661, 948 A.2d 73 (2008).

In Koshko we held that grandparents are third parties. See Koshko, 398 Md. at 444–45, 921

A.2d at 195. In McDermott we held that grandparents entrusted with the temporary care of

a child are third parties. See McDermott, 385 Md. at 417–18, 869 A.2d at 808. In Janice M.

we held that a former live-in life partner that shared parenting duties was a third party. See

Janice M., 404 Md. at 685, 948 A.2d at 87. Nonchalantly reducing a child of the family to

the status of a third party, the Majority holds that “[o]ur jurisprudence makes clear that third

parties are those who are not parents.” (Maj. Slip Op. at 20–21).

        Under any fair reading of these cases, taken together, they merely specify that three

categories of non-parent adults are third parties. They do not establish that the terms “third
party” and “non-parent” are co-extensive and interchangeable. It is inconceivable to me that

siblings—half, full or CINA—can be third parties vis-á-vis their parents and each other.

Although the benefits offered by grandparents to children should not be underestimated, the

grandparent–grandchild relationship is lesser and different in character from the unique bond

and life-long relationship a person shares with her siblings. Siblings are not third parties to

the nuclear family. Rather, they are core members of the family, as close by birth as two

humans can be, excepting identical twins.

       Sibling relationships are significant because they provide a built-in mutual support

system and offer developmental opportunities. See Angela Ferraris, Comment, Sibling

Visitation as a Fundamental Right in Herbst v. Swan, 39 New Eng. L. Rev. 715, 718

(2004–05). Importantly, the “‘relationships people share with siblings are often the longest-

lasting they will ever have. . . . around after parents, and even spouses and children, are

gone.’” Id. at 717 (quoting Diane Crispell, The Sibling Syndrome, 18 Am. Demographics

24, 26 (Aug. 1996)).      Indeed, “[a]s siblings age, they may look to each other for

understanding, for acceptance, for support, or even for financial assistance. Studies show

that adult sibling relationships positively affect sibling well-being.” Paige Ingram Castañeda,

Comment, O Brother (Or Sister), Where Art Thou: Sibling Standing in Texas, 55 Baylor L.

Rev. 749, 774 (2003) (footnote omitted); see also, Ellen Marrus, “Where Have You Been,

Fran?” The Right of Siblings To Seek Court Access To Override Parental Denial of

Visitation, 66 Tenn. L. Rev. 977, 980–87 (1999) (discussing the importance of the sibling



                                               2
bond).

         Some jurisdictions have held the right to associate with one’s sibling to be a

constitutional right. See, e.g., Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982) (holding

that “children surely possess a liberty interest in maintaining, free from arbitrary state

interference, the family environment that they have known since birth.”); Aristotle P. v.

Johnson, 721 F. Supp. 1002, 1005 (N.D. Ill. 1989) (holding that “children[’s] relationships

with their siblings are the sort of ‘intimate human relationships’ that are afforded ‘a

substantial measure of sanctuary from unjustified interference by the State.’” (quoting

Roberts v. U.S. Jaycees, 468 U.S. 609, 618, 104 S. Ct. 3244, 3250 (1984))); L. v. G., 203

N.J. Super. 385, 398, 497 A.2d 215, 222 (Ch. Div. 1985) (holding that “siblings possess the

natural, inherent and inalienable right to visit with each other.”). I would not go that far.

         Nonetheless, I reinforce the observation made in In re Tamara R. that:

                [T]he sibling relationship has been widely recognized as an
                important one, which will be given significant consideration and
                protection by courts in cases involving the family. Recognizing
                the value in sibling relationships puts in perspective the
                importance of the evidence that [an individual] would be harmed
                by the denial of sibling visitation.

136 Md. App. 236, 259, 764 A.2d 844, 856 (2000).

         To be sure, parents have a fundamental right to raise their children. Yet that right is

not absolute, and we should view it in the context of the family situation presented. This

Court held in Koshko that the grandparent visitation statute, Md. Code (1984, 2004 Repl.




                                                3
Vol.), § 9-102 of the Family Law Article (“GVS”)1 was constitutionally faulty because it

allowed “third parties . . . to disturb the judgment of a parent . . . [without] evidence that the

parents are either unfit or that there are exceptional circumstances warranting the relief

sought[.]” 398 Md. at 440, 921 A.2d at 192 (emphasis added). A CINA child who brings

a petition for visitation is forced to do so because something has gone awry within the

nuclear family and a member of the nuclear family has been removed—that, in itself,

distinguishes this case from the grandparent visitation petitions brought in Troxel v.

Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000) and Koshko. I submit that neither Troxel nor

Koshko should be extended to sibling visitation.

                  The Majority’s Reading Of The Lower Court Proceedings

       Assuming, nonetheless, that Koshko controls this case, the Majority incorrectly holds

that Circuit Court failed to follow Koshko. I find particularly baffling the Majority’s claim

that “the Circuit Court Judge relied on Tamara R., rather than on the applicable Koshko

standard[.]” (Maj. Slip Op. at 25). As explained below, a straightforward reading of the

Circuit Court demonstrates that the court applied Koshko in reaching its decision.




       1
           Md. Code (1984, 2004 Repl. Vol.), § 9-102 of the Family Law Article provided that:

                An equity court may:
                      (1) consider a petition for reasonable visitation of
                      a grandchild by a grandparent; and
                      (2) if the court finds it to be in the best interests of
                      the child, grant visitation rights to the
                      grandparent.

                                                  4
       In Koshko, maternal grandparents, facing strenuous objection from the children’s

parents, petitioned the circuit court for visitation with their three grandchildren under the

GVS. 398 Md. at 410, 921 A.2d at 174. Finding that the grandparents had overcome their

constitutional burden and rebutted the presumption in favor of the parents’ determination

of the best interests of the children, the trial court granted visitation rights to the

grandparents. Id. When the Court of Special Appeals affirmed the trial court, the parents

petitioned for certiorari, claiming that the GVS was unconstitutional as applied. Koshko,

398 Md. at 412, 921 A.2d at 175.

       This Court held that the GVS needed to be “supplemented by judicial interpretation

with an inferred presumption that parental decisions regarding their children are valid.”

Koshko, 398 Md. at 425, 921 A.2d at 183 (footnote omitted). We did so because the statute

did not acknowledge the role played by parental determinations in assessing the best interests

of the child, and because without such a presumption, the statute would be invalid under

Troxel. Koshko, 398 Md. at 426–28, 921 A.2d at 183–185. We further explained:

              [I]f third parties wish to disturb the judgment of a parent, those
              third parties must come before our courts possessed of at least
              prima facie evidence that the parents are either unfit or that
              there are exceptional circumstances warranting the relief sought
              before the best interests standard is engaged.

Koshko, 398 Md. at 440, 921 A.2d at 192. Thus, we articulated the standard that any third

party pursuing visitation against the wishes of a parent first has to rebut the presumption in

favor of the parent by making a showing of either parental unfitness or exceptional



                                              5
circumstances before a court could reach the merits of the petition under the best interests

of the children standard. Id.

       In this case the Circuit Court clearly applied the Koshko standard, after discussing

Tamara R. in the context of a denied motion for judgment. The trial court concluded that

George and Kieran successfully rebutted the Tamara R. common law preference in favor of

sibling visitation, rendering disposition of this case to be governed by Koshko:

              Under the rule of In re Tamara R., the Respondent presented a
              prima facie argument that she was entitled to visitation with her
              siblings because she offered evidence that there was harm to
              herself resulting from the denial of visitation to her minor
              siblings. Thus, she met her burden as required by Maryland’s
              common law presumption in favor of siblings seeking visitation
              of their siblings in contested settings. Thus, the Master
              appropriately denied the motion for judgment.

              Following the Master’s denial of the motion for judgment,
              George and Kieran C. presented evidence, noted by the Master,
              of harm to the minor siblings, although the Master did not draw
              the conclusion that there was harm. In her findings, the Master
              noted that George had concerns “for his younger children, in
              terms of the level of vitriol displayed by the Respondent towards
              him”; that Kieran had concerns over allowing Victoria to have
              a relationship because of the “level of hostility displayed by the
              Respondent towards her father”; and that the [sic] Kieran had
              “concerns for placing young children in the middle of a volatile
              relationship.”

              Accordingly, the Master appropriately afforded the minor
              children’s parents the opportunity to rebut the presumption in
              the common law. Thus, In re Tamara R. would seem to instruct
              that, because the fit parents presented evidence of harm, they
              rebutted the presumption that arises in favor of siblings. Upon
              the conclusion of the case, Victoria C. is left without a
              presumption in favor of her, and thus must meet the more

                                              6
              rigorous test outlined above in Koshko. (Emphasis added.)

The trial court also observed that “the requirements of Koshko . . . must be applied here,

too[,]” and “Koshko is the minimum bar which state limitations on parents’ fundamental

rights must meet, and thus it is the bar over which Victoria C. must pass.”

       The Circuit Court then explained the scope of its analysis, stating that “[b]ecause the

children in Koshko who were the subject of the petition were the children whom the

grandparents sought to visit, the question for this Court to answer is: Is there a significant

deleterious effect on Lance and Evan?” The court then, in accordance with Koshko,

investigated whether there were exceptional circumstances, before considering the best

interests of the children standard. The court concluded that there were indeed exceptional

circumstances present in this case. In detailing its finding of exceptional circumstances, the

court explained:

              Because the Court can infer harmful effects on at least Lance
              that result in significant deleterious effects of losing the
              relationship with his sister, because the balance of applicable
              traditional factors show exceptional circumstances, and because
              the situation bringing Victoria C. before this Court appears in
              itself to be an exceptional circumstance, the Court finds that
              Victoria has met her burden in overcoming the presumption
              afforded parents in the upbringing of their children under the
              U.S. Constitution.

The court then concluded that it would be in Lance and Evan’s best interests to have

visitation with Victoria:

              Lance clearly has asked about Victoria, whom he last saw when
              he was 3. Victoria had a loving relationship with Lance and

                                              7
                 Evan before she left the family home. This tends to show that
                 it would be in Lance's emotional best interests [sic] to see
                 Victoria again. This side of the equation is strengthened by the
                 significance placed upon the sibling relationship. With respect
                 to Evan, there being a loving relationship with Victoria versus
                 not having one favors visitation. While this would ordinarily be
                 balanced by the concerns of the parents, the fact that they are
                 siblings tips the scales in favor of a finding that it is in Evan's
                 best interests to have visitation with Victoria.

These passages from the Circuit Court’s opinion demonstrate that, contrary to the Majority’s

holding, it understood and applied the applicable Koshko standard. (Maj. Slip Op. at 25).

       The Majority also criticizes the Circuit Court as:

                 [F]ocus[ing] primarily on the harm to Victoria, while relying
                 only on building blocks of inferential adverse effects on Lance
                 and Evan; the only finding of harm to Lance or Evan that the
                 Circuit Court Judge made was that Lance remembered Victoria,
                 leading the judge to infer that Lance wanted to visit with her,
                 thereafter, inferring a substantial deleterious effect on Lance as
                 a result of a lack of visitation. There was no evidence on this
                 record which demonstrated that Lance or Evan were harmed
                 from a lack of visitation with Victoria C. Evidence adduced was
                 only to the contrary.

(Maj. Slip Op. at 25).

       I disagree. The Circuit Court articulated and followed the very legal standard the

Majority sanctions. To hold that the court did not apply Koshko or did not consider whether

there were exceptional circumstances that applied to Lance and Evan is to ignore the Circuit

Court’s words and actions.2



       2
           Regarding the younger children, the court found that:
                                                                                       (continued...)

                                                 8
2
    (...continued)
           The testimony of both parents, however, is that Lance does
           remember Victoria. The Court infers that Lance would like to
           have contact with Victoria, and this raises an inference that there
           is a significant deleterious effect on Lance by virtue of denying
           him visitation with his older sister. This probably is enough to
           meet the exceptional circumstances standard under Brandenburg
           [ v. LaBarre, 193 Md. App. 178, 996 A.2d 939 (2010)] in order
           to overcome the burden with respect to Lance, however, the
           Court will also look to the traditional factors in determining
           exceptional circumstances, as developed in Ross v. Hoffman[,
           280 Md. 172, 372 A.2d 582 (1977)].

                                      *    *    *

          [A]t the time of the visitation hearing, Victoria had been away
          from the children approximately two years. Lance was
          approximately 3 years old, and Evan, 18 months when Victoria
          left the family home. There is a concern over the possible
          emotional effect on the children, as testified to by both George
          and Kieran C. The first appearance of Victoria’s request to visit
          her siblings appeared September 14, 2010, about four-and-a-half
          months after she was adjudged CINA (which occurred April 26,
          2010). There is no evidence that the relationship between
          Lance, Evan, George and Kieran is anything but healthy. The
          uncontroverted testimony is that, prior to Victoria’s leaving the
          family home, her relationship with Lance was strong; it was less
          so with Evan, but nevertheless close. The genuineness of
          Victoria’s desire to visit her siblings appears true, and is
          uncontroverted. The intensity appears strong. See e.g., Hrg. Tr.
          at 16 (Q: “Since you have been out of the home, can you tell us
          what the impact of not seeing them has been on you?” A: “It
          has been like a hole, kind of. I just—I miss them. They were an
          entire section of my life.”) Although Joan McInerney, a private
          therapist, testified that Victoria’s feelings toward sibling
          visitation were “[n]ot strong,” the Court discounts this testimony
          because the purpose of those therapy sessions was aimed at
                                                                                 (continued...)

                                           9
       The court clearly found that Lance and Evan would suffer harm as a result of being

further deprived of visitation with their sister.          Although the court did discuss the

circumstances surrounding Victoria’s departure and the harm she suffered as a result of not




       2
           (...continued)
                  reconciling the relationship between Victoria and George C.,
                  which that witness testified she believed was paramount to
                  continuing her therapy.

                 While there is concern over the possible emotional effect on the
                 children, the applicable traditional factors in determining
                 exceptional circumstances in balance appear to show
                 exceptional circumstances. While Victoria was in Texas,
                 visitation would have been impractical if not impossible. She
                 sought visitation within five months of being adjudged CINA,
                 showing a desire to reestablish a relationship with her siblings.
                 The disruption to the children’s’ [sic] lives seem[s] to be
                 minimal and the benefits to Victoria are great. While the parent-
                 child relationship appears healthy between the two minors and
                 the two parents, that relationship is likely to remain healthy also,
                 despite visitation.

                 Furthermore, it cannot be ignored that the reason Victoria C. is
                 before the Court and the reason she does not have contact with
                 her siblings to begin with is because she left the family home
                 following a DSS investigation that found an indication of abuse
                 against her father. The plan developed resulted in Victoria’s
                 removal from the family home to her maternal aunt’s home in
                 Texas. When circumstances changed, she returned to her home
                 state of Maryland to be placed in a hotel because she was not
                 accepted back into the family home, which resulted in her being
                 taken into the limited guardianship of the State through the
                 Carroll County Department of Social Services. This would also
                 appear to be an exceptional circumstance determined on a “case-
                 by-case” basis, as allowed for in Aumiller [ v. Aumiller, 183 Md.
                 App. 71, 959 A.2d 849 (2008)].

                                                 10
being able to visit with her brothers, to reverse the trial court on grounds that it “focused

primarily on Victoria” is to both usurp that court’s fact-finding role and ignore its

discretionary powers. Clearly, the trial court considered the impact on both Victoria and the

brothers. It is not our function, as an appellate court, to parse the relative strength of the trial

court’s various factual findings.

       And, as we have explained, “[d]ecisions concerning visitation generally are within the

sound discretion of the trial court, and are not to be disturbed unless there has been a clear

abuse of discretion.” In re Billy W., 387 Md. 405, 447, 875 A.2d 734, 758 (2005) (citations

omitted). The Majority does not explain how the Circuit Court’s determination that visitation

would be in the best interests of Lance and Evan was “‘well removed from any center mark

imagined by the reviewing court and beyond the fringe of what that court deems minimally

acceptable.’” Dehn v. Edgecombe, 384 Md. 606, 628, 865 A.2d 603, 616 (2005) (quoting

North v. North, 102 Md. App. 1, 13–14, 648 A.2d 1025, 1031–32 (1994)).

       At the time the ruling was made, Lance and Evan were 3 and 5 years old, respectively.

At such a young age, children are unable to conceptualize complicated events like those

surrounding Victoria’s departure and the consequences of the changing family dynamic, and

are ill-equipped to explain their feelings on the matter with any specificity. Thus, a court

could only infer, based on the evidence and testimony submitted to it, that there would be

harm or a deleterious effect on such children. Indeed, one is left to wonder what manner of

evidence would satisfy the Majority that such young children would be harmed, if the loss



                                                11
of a beloved and remembered older sister is viewed as insufficient.

       It is my fear that the Majority announces a standard rendering it effectively impossible

to demonstrate that a younger sibling would suffer significant deleterious harm if deprived

of visitation with an elder sibling. Indeed, under the Majority’s rule, were George and

Kieran to abandon Lance as they have Victoria, Evan would not be able to show that he

would suffer significant harm from being deprived of visitation with his older brother. By

announcing that the “evidence on th[e] record which demonstrate[s]” harm on the

non-petitioning children must rise above evidence that a beloved sibling has disappeared

from the visited child’s life, the Majority renders the task of demonstrating such harm

unknowable. (Maj. Slip Op. at 25).

                           The Majority’s Holding Invites Abuse

       Finally, I dissent because I believe the Majority’s rule will invite abuse, and present

abused children with an impossible choice. Victoria was declared a CINA, and a Department

of Social Services investigation into allegations of abuse yielded a result of “indicated.” Yet

the Majority looks at this situation, involving damage to the entire family unit, and holds that

the Circuit Court erred in finding exceptional circumstances.

       For reasons that are not quite clear, the Majority construes Victoria’s departure from

the home, and her being separated from Lance and Evan, as pertaining only to Victoria. This

implies that a finding of exceptional circumstances as to Lance and Evan is markedly

different than a finding of exceptional circumstances as to Victoria. Nothing in Koshko



                                              12
supports such a distinction. Rather, Koshko requires that there be exceptional circumstances

surrounding the denial of visitation. To hold, as the Majority does, that a sibling being

removed from the house under allegations of abuse and later denied reunification with her

family is not an exceptional circumstance, is to invite the very abuse I describe.

       After this ruling, children like Victoria who believe they are being physically or

emotionally abused by a parent face the following Hobson’s Choice: either (a) report the

abuse, get declared CINA, and leave the custody of their parents while risking having all

access to their siblings cut off; or (b) endure the continued physical or emotional abuse.

Indeed, under the Majority’s rule, children who leave an abusive household have no recourse

to attempt to gain visitation with their siblings unless their former abusers consent to it. I

find this result deeply troubling.

       The Majority transforms the wishes of parents from presumptively valid to essentially

absolute.   Even in a case like this, in which the parents demonstrate an inability or

unwillingness to care for one of their children, the Majority elects to enhance the protections

given to parents at the expense of children who have been forced out of their homes. It

would be no great harm to the strong and significant protections given to the wishes of

presumptively fit parents, were we to announce a rule that in a unique situation like this, the

juvenile court may make a determination harmonious with, if not based on, Md. Code (1994,




                                              13
2012 Repl. Vol.), § 5-525.2(b) of the Family Law Article.3 Considering the best interests

of all children involved, and allocating significant weight to the wishes of the parents,

does not undermine the protection from arbitrary judicial inquiry embedded in Koshko.

       For the above reasons, I would reverse the Court of Special Appeals and affirm

the judgment of the Circuit Court.

       Judge Greene authorizes me to state that he shares the views set forth in this

dissenting opinion.




       3
        I also disagree with the Majority’s dictum that Md. Code (1994, 2012 Repl. Vol.),
§ 5-525.2(b) of the Family Law Article is applicable only “among siblings who are in an out-
of-home placement[.]” (Maj. Slip Op. at 19–20, n.12). Nothing in the statutory language
requires that all the siblings be placed in foster care in order for one sibling to avail herself
of the statute. The statute clearly covers siblings that have been separated by foster care.
Victoria was placed in foster care and separated from Lance and Evan. The Majority’s bare
assertion that the statute is only meant to cover visitation among siblings who are all removed
from a home is unsupported by the text or context of this statute.

                                               14
