In re: Adoption/Guardianship of H.W., No. 70, September Term, 2017, Opinion by Adkins, J.


FAMILY LAW — TERMINATION OF PARENTAL RIGHTS — FAMILY LAW
ARTICLE § 5-323 — EXCEPTIONAL CIRCUMSTANCES: In assessing whether to
terminate parental rights, a juvenile court must consider the statutory factors set forth in
Md. Code (1984, 2012 Repl. Vol.), § 5-323 of the Family Law Article and make findings
by clear and convincing evidence whether a parent is either unfit to remain in a parental
relationship or exceptional circumstances exist that would make a continuation of the
parental relationship detrimental to the best interests of the child such that terminating
parental rights is in the child’s best interests.

FAMILY LAW — TERMINATION OF PARENTAL RIGHTS — EXCEPTIONAL
CIRCUMSTANCES — CONSIDERATION OF NON-STATUTORY FACTORS: A
court must assess whether exceptional circumstances exist that would make a continuation
of the parental relationship detrimental to the best interests of the child according to the
statutory factors set out in Md. Code (1984, 2012 Repl. Vol.), § 5-323(d). These factors
are criteria for determining whether exceptional circumstances exist that rebut the
presumption favoring a continued parental relationship. Consideration of any non-
statutory factors must be tailored to the inquiry of whether the continued parental
relationship is detrimental to the child’s best interests. A juvenile court should closely
adhere to the statutory factors.

FAMILY LAW — TERMINATION OF PARENTAL RIGHTS — FAMILY LAW
ARTICLE § 5-323 — FACTORS PERTAINING TO CUSTODY: When terminating
parental rights pursuant to Md. Code (1984, 2012 Repl. Vol.), § 5-323 of the Family Law
Article, a juvenile court must base its assessment on the statutory factors set forth in § 5-
323(d). Consideration of exclusively custodial factors risks according equal standing to
third-party custodians, and a decision to justify terminating parental rights must focus on
the continued parental relationship, not custody. In this termination of parental rights
proceeding, the juvenile court’s inclusion of the Ross v. Hoffman, 280 Md. 172 (1977),
factors used in third-party custody disputes did not impermissibly taint its decision because
it made specific findings under each required statutory factor and its Ross findings were
substantively the same as the statutory findings.
Circuit Court for Baltimore City
Case No.: T15280012
Argued: April 6, 2018

                                        IN THE COURT OF APPEALS

                                               OF MARYLAND



                                                    No. 70

                                            September Term, 2017



                                   IN RE: ADOPTION/GUARDIANSHIP OF H.W.



                                             Barbera, C.J.
                                             Greene
                                             Adkins
                                             McDonald
                                             Watts
                                             Hotten
                                             Getty,

                                                    JJ.



                                             Opinion by Adkins, J.
                                        Hotten, J., concurs and dissents.



                                             Filed: July 16, 2018



          2018-07-16
          08:55-04:00
       Proceedings to terminate parental rights necessitate maintaining a delicate balance

between a parent’s constitutional right to raise their children, the State’s interest in

protecting children, and the child’s best interests. Here, we return to the often-complicated

question of exceptional circumstances in the context of terminating parental rights (“TPR”)

under Md. Code (1984, 2012 Repl. Vol.), § 5-323 of the Family Law Article (“FL”). We

consider if, when assessing whether exceptional circumstances exist that make continuing

the parental relationship detrimental to a child’s best interests, a juvenile court errs by

considering custody-specific factors used to determine exceptional circumstances in third-

party custody disputes. See, e.g., Ross v. Hoffman, 280 Md. 172 (1977).

                        FACTS AND LEGAL PROCEEDINGS

       H.W. was born in April 2012 to S.B. (“Mother”), an 18-year-old former CINA1 and

M.W. (“Father”). Father had been convicted in Connecticut seven years earlier of sexual

assault in the first degree and was released in 2009. Four months before H.W. was born,

Father was extradited from Maryland to Connecticut and incarcerated there. Father was

released in January 2013 and remained in Connecticut on probation. He has never seen H.W.




       1
        “CINA,” as defined by Md. Code (1973, 2013 Repl. Vol., 2016 Supp.), § 3-801(g)
of the Courts and Judicial Proceedings Article (“CJP”) means a “child in need of
assistance.” CJP 3-801(f) defines a child in need of assistance as:

              a child who requires court intervention because:
              (1) the child has been abused, has been neglected, has a
                  developmental disability, or has a mental disorder; and
              (2) the child’s parents, guardian, or custodian are unable or
                  unwilling to give proper care and attention to the child and
                  the child’s needs.
       In October 2012, Mother left H.W. unattended during a bath. When she returned, she

found him face down in the water. H.W. was hospitalized and on life support for two weeks.

In December 2012, H.W. was found to be a CINA and was placed in Mother’s care under an

Order of Protective Supervision. Some months later, the Baltimore City Department of

Social Services (“Department”) sought emergency removal of H.W. from the home, which

a juvenile court granted. In July 2013, H.W. was returned to Mother’s care under another

Order of Protective Supervision, which was rescinded in December 2013.

       Mother gave birth to twins, H.J. (“Brother”) and H.J. (“Sister”)2 in January 2014.

In June 2014, Mother was bathing Brother in the kitchen sink under running water. Sister

was in her car seat in a different room with a bottle. Sister began choking and Mother left

Brother unattended to respond. When Mother returned to the kitchen, she discovered that

Brother had suffered severe burns.      He was hospitalized for nearly a month.         The

Department promptly filed Petitions with Requests for Shelter Care for all three children,

which the juvenile court granted. H.W. and Sister were placed in a foster home belonging

to Mr. and Mrs. M. on June 20, 2014. After being discharged from the hospital, Brother

was placed in a separate foster home to address his specific medical needs, but he

eventually joined H.W. and Sister at the M. home.3 All three children were declared CINA.




       2
        Because the twins have the same initials, we refer to them as “Sister” and “Brother”
for convenience.
       3
         Mother and the twins’ father consented to adoption of the twins by the M. family
and their parental rights have been terminated. At argument, the Department informed the
Court that the M. family has adopted the twins.

                                             2
       At the time H.W. was removed, he had a healed burn on the side of his forehead.

Mother told the Department caseworker that H.W. had run into a lit cigarette while playing.

Mother reported that she contacted his pediatrician, who advised her to put Vaseline on the

burn, but sought no other medical attention.

       Lori Lee, H.W.’s caseworker, attempted to locate Father in July 2014 and received

information that he was incarcerated in Kentucky. She sent a letter to him but received no

response.4 In late 2014, while on probation in Connecticut, Father learned that H.W. was in

the State’s custody, through either a summons or a letter from Lee. Father obtained

permission to travel to Baltimore for a CINA hearing in December 2014. Mother introduced

Lee to Father the morning of the hearing. Father had thought the hearing was in the morning

and he wanted to visit H.W. When Lee explained that the hearing was scheduled for the

afternoon, Father informed Lee that he would not be able to stay because he had to return to

Connecticut. Lee told Father why H.W. was in the State’s care, and that she would like for

him to visit with H.W. Father indicated that he would speak with his probation officer, so

he could return to Baltimore to visit with H.W. Father, however, did not immediately return

to Connecticut. Instead, he left the courthouse with Mother and made alternate travel

arrangements to leave the next day. He did not attend the December 2014 hearing.

       In January 2015, Lee had a phone conversation with Father’s probation officer while

Father was present. Father wanted to attend an upcoming hearing and his probation officer

indicated that she and Father would discuss whether or not he would receive permission to


       4
          Other than information about Lee’s efforts to locate Father, the record does not
reflect that Father was ever incarcerated in Kentucky.

                                               3
do so. Later that month, Lee sent a letter to Father’s probation officer providing additional

information about the hearing. She did not receive a response and Father did not attend the

hearing. Lee sent additional letters to Father in July and August, notifying him of upcoming

hearings and enclosing copies of court orders. She invited Father to contact her to “discuss

any questions you may have regarding [H.W.] and [to] schedule visits.” Lee did not receive

a response. In August 2015, Father was incarcerated again for violating his probation.

       Father wrote Lee a letter in October 2015, notifying her of his incarceration. He

identified an aunt and his brothers as relative resources for H.W. He included contact

information for his aunt and mother, but not for his brothers. Father expressed that he

wanted to be in H.W.’s life. He claimed that his probation officer had refused to allow him

to attend hearings in Maryland. Father had “requested to be sentenced to prison in pursuit

of no more probation, which will allow [him] to relocate back to Baltimore . . . .”

       Father explained that he had difficulty communicating with Mother by phone but

occasionally reached her through social media. He stated that Mother became “stubborn and

withdrawn when [he] asked of [H.W.]’s whereabouts.” Father also asked Lee for resources,

“I don’t know what you can do for [H.W.] and I, but I am sincerely asking for your help for

our unity?” Father anticipated being “incarcerated for approximately 2 y[ea]rs” but hoped

that “you and your department have left me some options as [H.W.]’s father.” He asked Lee

to send “any information about the progress that has been made with [H.W.]’s placement.”

       Lee investigated Father’s aunt, who passed her fingerprint and background checks.

When Lee contacted the aunt about completing a home inspection, she declined to be a

resource. Rather, she was willing to be “a back-up plan to [the Department’s] back-up


                                             4
plan” and thought it best that H.W. remain with his foster family. Lee sent Father a letter

in November 2015 notifying him of this development and informing him that his brothers

had not contacted her regarding H.W.

       Lee explained that H.W.’s foster family was willing and able to adopt him, and that

H.W. was having behavioral issues. She also advised Father of an upcoming hearing in

December and asked him to contact her if his situation changed, or if he had other relatives

the Department could investigate. Between March and November 2016, Lee sent Father

six more letters with copies of court orders concerning H.W. Father did not respond.

       In October 2015, the Department filed a Petition for Guardianship with the Right to

Consent to Adoption or Long Term Care Short of Adoption for H.W. Father and Mother

objected, but later consented. Father, however, withdrew his consent and the matter

proceeded to a contested hearing in 2017.

                                    The TPR Hearing

       Lee testified at the hearing, describing her meeting with Father in 2014, subsequent

attempts at communication with him, and her investigation of Father’s aunt.             Lee

acknowledged that Father had been under legal constraints since before H.W. went into

care. During her testimony, she also described H.W.’s placement with the M. family and

her monthly visits with the children. H.W. had some special needs relating to behavioral

problems and had been diagnosed with ADHD. He was receiving treatment and the M.

family worked with him through therapy. The M. family was in contact with Mother

through phone and e-mail.




                                             5
       Lee testified that H.W. is emotionally attached to Mr. and Mrs. M., and calls them

PopPop and Mommy. H.W.’s twin siblings are also placed with the M. family and H.W.

has bonded with them—“truly a big brother.” Lee stated that she had no concerns about

H.W.’s care and opined that it would be detrimental to H.W. to remove him from the M.

home because of his emotional attachments and because it would “set him backwards in

his treatment, the therapy that he’s been going through for his behavioral problems.” Lee

recommended that Mr. and Mrs. M. adopt H.W.

       Father testified by phone from the Brooklyn Correctional Facility in Connecticut,

where he was serving a 30-month sentence for violating his probation. During his testimony,

Father explained that Mother did not contact him after he was extradited from Maryland in

2011. He had sporadic contact with Mother and, although he always asked to speak to H.W.

during phone calls, this rarely happened. Mother did not share much information about H.W.

with him, and on at least one occasion, they argued about money. Father explained that his

probation officer had denied him permission to attend other hearings for H.W.

       Father had several probation violations and had tested positive for marijuana. He

explained that since he had been in Connecticut, “the majority of [his] situation has been

homelessness,” and that he had not been able to provide for himself. Father had been

employed during his probation with a fast food restaurant and with a printing company. In

early 2014 he sent money to his brother, who babysat H.W., for “Pampers, . . . for food,

for a haircut, things like that.”

       Father’s mandatory release date was in February 2018, but he anticipated release as

early as November or December 2017 based on earned credits. Upon release, he would no


                                            6
longer be subject to probation conditions. He testified that he enrolled in a program called

“Good Intentions[,] Bad Choices” but that no other programs had been recommended to, or

required of him. He had been referred to programs during his probation, including a drug

treatment program, which he had not completed. Father did not think he needed counseling,

explaining that he writes in his journal and has been doing his own reading to educate himself.

       After release, Father planned to come to Baltimore and obtain custody of H.W.

Although most of Father’s family is in Baltimore, he did not have any resources identified in

Baltimore—he was not in “re-entry stage” to “transition back into society” yet. He was unsure

where he would live in Baltimore but hoped that family might help him. Father admitted that

he had “no support at all.” He was not sure how long he would stay in Baltimore, but if he did

obtain custody of H.W., the maximum he would stay would be five years.

       Father said he would keep H.W. in contact with the twins, and introduce H.W. to his

teenage daughter, who lives in Philadelphia with her mother. Father explained that he was

changing his life and did not want to give his son away to another family. He testified that

he wanted to keep his parental rights because he wanted to be a “present” and “active” father.

                              The Juvenile Court’s Findings

       The juvenile court considered Lee’s and Father’s testimony, as well as court orders,

H.W.’s medical records, Lee’s letters to Father, Father’s letter to Lee, and a bonding

evaluation between H.W. and the M. family.5 Acknowledging the fundamental right of

parents, the court also emphasized that the State has an interest in protecting vulnerable


       5
         Mother did not appear for her bonding evaluation. The evaluation states that
Father could not be evaluated because he was incarcerated.

                                              7
children and that the juvenile court must give “primary consideration to the health and

safety of the child and consideration to all other factors needed to determine whether

terminating a parent’s rights is in the child’s best interests . . . .” The court then analyzed

the statutory factors set forth in FL § 5-323(d),6 as well as nine additional factors7 to

“determin[e] whether exceptional circumstances exist[ed]:”

              1. Length of time child has been away from the biological
                 parent[;]
              2. Age of child when care was assumed by caretakers[;]
              3. Possible emotional effect on child if custody changed to
                 biological parent[;]
              4. Possible emotional effect on child if custody is given to
                 caretaker[;]
              5. Period of time which elapsed before parent sought to
                 reclaim child and efforts made toward reclamation[;]
              6. Nature and strength of ties between child and current
                 caretaker[;]
              7. Intensity and genuineness of parent’s desire to have the
                 child[;]
              8. Stability and certainty as to child’s future in the custody of
                 the parent[; and]
              9. Stability and certainty as to child’s future in custody of the
                 caretaker.

       Based upon the statutory factors in FL § 5-323(d), the juvenile court concluded that

there was not clear and convincing evidence that Father was unfit. The juvenile court found

“by clear and convincing evidence[,] based on the relevant statutory factors[,] that




       6
         The juvenile court determined that Md. Code (1984, 2012 Repl. Vol.), § 5-323(c)
of the Family Law Article (“FL”) did not apply. We discuss the court’s specific findings
in greater detail, infra.
       7
        The factors are substantially the same as those in Ross v. Hoffman, 280 Md. 172,
191 (1977), but the juvenile court did not identify the factors as such.

                                              8
exceptional circumstances exist[ed] to make the continuation of the parental relationship

detrimental to the best interests of the child.” It awarded guardianship to the Department.

       The Court of Special Appeals vacated the juvenile court’s decision. See In re

Adoption/Guardianship of H.W., 234 Md. App. 237 (2017). It concluded that the juvenile

court erred by using four factors related exclusively to custody of the child in deciding to

terminate Father’s parental rights. Id. at 251. Based on the differences between a proceeding

to terminate parental rights and a custody proceeding, the Court of Special Appeals reasoned

that factors relating solely to custody did not belong in a TPR analysis. Id.

       We granted certiorari to resolve the following question:8

              1. Are juvenile courts permitted to consider custody-specific
                 factors in termination of parental rights proceedings,
                 specifically: (a) the potential emotional effect of the change
                 in custody; (b) the instability and uncertainty of the child’s

       8
        Petitioner presented the following questions, which we have consolidated and
rephrased:

              1. Did the Court of Special Appeals improperly proscribe
                 juvenile courts from considering factors critical to the
                 determination of a child’s best interests when it held that,
                 in determining whether to terminate parental rights,
                 juvenile courts may not consider either the emotional
                 effects of a change in custody upon the child or the stability
                 and certainty of a child’s future?

              2. In determining that it is in five-year-old H.W.’s best
                 interests to terminate the parental rights of an incarcerated
                 father, whom the child has never met, did the juvenile court
                 permissibly consider the following factors: (a) the potential
                 emotional effect on the child of a change of custody; (b) the
                 instability and uncertainty of the child’s future in the
                 custody of the father; and (c) the stability and certainty of
                 the child’s future in the custody of the prospective adoptive
                 parents?

                                              9
                  future in the parent’s custody; and (c) the stability and
                  certainty of the child’s future in the custody of the
                  prospective adoptive parents?

       We shall conclude that, when terminating parental rights, a juvenile court must base

its assessment on the statutory factors set forth in FL § 5-323. Consideration of exclusively

custodial factors risks blurring important distinctions between parents and third-party

custodians. In this case, the juvenile court’s inclusion of custody-specific factors did not

taint its decision because it made specific findings on each relevant statutory factor and its

Ross findings were substantively the same as its more appropriate statutory findings.

                               STANDARD OF REVIEW

       We use three distinct, but interrelated standards to review a juvenile court’s decision

to terminate parental rights. In re Adoption of Ta’Niya C., 417 Md. 90, 100 (2010). The

juvenile court’s factual findings are left undisturbed unless they are clearly erroneous. We

review legal questions without deference, and if the lower court erred, further proceedings

are ordinarily required unless the error is harmless. Id. The lower court’s “ultimate

conclusion,” if it is “founded upon sound legal principles and based upon factual findings

that are not clearly erroneous,” will be “disturbed only if there has been a clear abuse of

discretion.” Id. (quoting In re Adoption/Guardianship of Victor A., 386 Md. 288, 297

(2005)) (brackets omitted).

                                       DISCUSSION

       The Department and H.W. contend that the Court of Special Appeals committed

legal error when it decided that use of the Ross v. Hoffman, 280 Md. 172, 191 (1977),

factors relating to custody was impermissible in a TPR proceeding under FL § 5-323. They


                                             10
assert that the statute does not create an exclusive list of factors to assess both exceptional

circumstances and analyze a child’s best interests. Because the ultimate standard is the

child’s best interests, they reason that a juvenile court should be free to assess any relevant

factors, including custody. Further, they argue that FL § 5-323 specifically includes

custodial factors relating to the child’s placement.

       Father concedes that a court may look beyond the statutory factors, but he maintains

that the juvenile court must restrict its extra-statutory analysis to factors relevant to whether

termination of parental rights is in the child’s best interests. Father, relying on In re

Adoption/Guardianship of Rashawn H., 402 Md. 477 (2007), argues that because custody

and TPR are separate inquiries, factors relevant to a custody analysis do not translate to the

TPR context because parental success in TPR “merely preserves the possibility of future

reunification . . . .” (Emphasis in original). Custody-specific considerations cloud the

analysis, he reasons, because the question in a TPR proceeding is not whether the existing

custodial arrangement is in the child’s best interests, rather, it is whether continuing the

parental relationship is detrimental to the child.

       In Ross, 280 Md. at 179, we addressed whether exceptional circumstances were

present in a custody dispute between a parent and a third party that merited granting

custody to the third party. We identified several factors that we considered “of probative

value in determining the existence of exceptional circumstances[,]” including:

              the length of time the child has been away from the biological
              parent, the age of the child when care was assumed by the third
              party, the possible emotional effect on the child of a change of
              custody, the period of time which elapsed before the parent
              sought to reclaim the child, the nature and strength of the ties


                                               11
              between the child and the third party custodian, the intensity
              and genuineness of the parent’s desire to have the child, [and]
              the stability and certainty as to the child’s future in the custody
              of the parent.

Id. at 191.

       The parties do not challenge the use of some of these factors in the proceeding

below. Rather, their dispute centers on four factors: (1) the possible emotional effect on

the child if custody was changed to the biological parent; (2) the possible emotional effect

on the child if custody was given to the caretaker; (3) the stability and certainty as to the

child’s future in the custody of the parent; and (4) the stability and certainty of the child’s

future in the custody of the caretaker.

       We look first to the fundamental principles associated with a court’s decision to

terminate parental rights and the statutory scheme set forth in FL § 5-323.

                      The Transcendent Standard And FL § 5-323

       This Court has long recognized that parents have a fundamental right to raise their

children and make decisions about their custody and care. See In re Adoption of Jayden

G., 433 Md. 50, 66–67 (2013); In re Adoption/Guardianship of Victor A., 386 Md. 288,

298–99 (2005). As we explained in Rashawn H., 402 Md. at 495, there is “a presumption

of law and fact—that it is in the best interest of children to remain in the care and custody

of their parents.” These principles are not absolute—they are tempered by the State’s

interest in protecting children. See Jayden G., 433 Md. at 68. The “transcendent” standard

in TPR proceedings has always been the child’s best interests. Ta’Niya C., 417 Md. at 112;

Jayden G., 433 Md. at 67; Rashawn H., 402 Md. at 496.



                                              12
       The General Assembly has established a legal framework to assess whether it is in

a child’s best interests to terminate parental rights that balances the child’s best interests

and the appropriate protection for parental rights. FL § 5-323(b) establishes the burden of

proof and findings required for a juvenile court to terminate parental rights:

               If, after consideration of factors as required in this section,
               a juvenile court finds by clear and convincing evidence that
               a parent is unfit to remain in a parental relationship with
               the child or that exceptional circumstances exist that would
               make a continuation of the parental relationship
               detrimental to the best interest of the child such that
               terminating the rights of the parent is in the child’s best
               interests, the juvenile court may grant guardianship of the
               child without consent otherwise required under this subtitle
               and over the child’s objection.

(Emphasis added). Subsection (d) requires that the juvenile court “shall give primary

consideration to the health and safety of the child and consideration to all other factors

needed to determine whether terminating a parent’s rights is in the child’s best

interests . . . .” and it provides a list of factors that must be considered.

                            Rashawn H. And The TPR Analysis

       We offered some guidance interpreting the TPR statute in Rashawn H.9 The

statutory scheme for terminating parental rights has “three critical elements in . . . balance

that serve to give heightened protection to parental rights in the TPR context.” 402 Md. at




       9
        We considered both then-FL § 5-313 and its successor, FL § 5-323. In re
Adoption/Guardianship of Rashawn H., 402 Md. 477, 499 (2005).


                                               13
498. First, although not “expressly articulated” in the statute,10 there is an implicit

presumption that “the interest of the child is best served by maintaining the parental

relationship . . . .” Id. This presumption is rebuttable “only by a showing that the parent

is either unfit or that exceptional circumstances exist that would make the continued

relationship detrimental to the child’s best interest.”    Id.   The parental relationship

presumption originates from our precedent on parent-third party custody disputes, but the

concepts of unfitness and exceptional circumstances have a substantially different

meaning in TPR cases. Id.

       In custody cases, unfitness “means an unfitness to have custody of the child, not an

unfitness to remain the child’s parent; exceptional circumstances are those that would make

parental custody detrimental to the best interest of the child.” Id. (emphasis in original).

Facts that might demonstrate unfitness or exceptional circumstances in a custody case are

not always sufficient to terminate parental rights. Therefore, to justify a TPR decision,

“the focus must be on the continued parental relationship, not custody.” Id. at 499

(emphasis added). The facts must show that the parent is unfit to continue the relationship,

or exceptional circumstances make the continued relationship detrimental to the child’s

best interests. Id.

       Second, the “State must overcome a much higher substantive burden by a higher

standard of proof.” Id. It must establish unfitness or exceptional circumstances by clear



       10
         The General Assembly amended FL § 5-323(b) in 2009 to include this
presumption. See 2009 Md. Laws, Ch. 350, § 1; see also In re Adoption/Guardianship of
Amber R., 417 Md. 701, 710 n.8 (2011).

                                            14
and convincing evidence rather than the preponderance standard applicable in custody

cases. Id. Terminating parental rights is “a total rescission of the legal relationship

between parent and child, and . . . is generally final.” Id. at 496. Further, in custody

disputes, the State serves as a neutral judicial forum, whereas in TPR proceedings, the State

is “a moving party, acting in its capacity as parens patriae[,]” to terminate a parental

relationship and transfer those rights to itself. Id.

       Third, the Legislature has “carefully circumscribed the near-boundless discretion

that courts have in ordinary custody cases to determine what is in the child’s best interests.”

Id. at 499. The statutory factors are both considerations in determining whether TPR is in

a child’s best interests, and “criteria for determining the kinds of exceptional

circumstances that would suffice to rebut the presumption favoring a continued

parental relationship and justify termination of that relationship.” Id. (emphasis

added). See also Ta’Niya C., 417 Md. at 104 (“[T]he same factors that a court uses to

determine whether termination of parental rights is in the child’s best interest under the

TPR statute equally serve to determine whether exceptional circumstances exist.”). The

TPR statute “appropriately looks to . . . whether the parent is, or within a reasonable time

will be, able to care for the child in a way that does not endanger the child’s welfare.”

Rashawn H., 402 Md. at 499–500.

       Unfitness or exceptional circumstances do not, by themselves, mandate a decision

to terminate parental rights. See Jayden G., 433 Md. at 94. Rather, they demonstrate that

the presumption favoring the parent has been overcome. The decision to terminate parental




                                               15
rights must always revolve around the best interests of the child.11 Id. The three

concepts—unfitness, exceptional circumstances, and best interests—“are fused together,

culminating in the ultimate conclusion of whether terminating parental rights is in a given

child’s best interests.” Id. at 96 n.32.

       Judge Wilner clarified the appropriate balance between a parent’s interest and the

best interests of a child:

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

Rashawn H., 402 Md. at 501 (emphasis in original). This, we reiterated in Ta’Niya C., 417

Md. at 111, “should be the touchstone for courts in TPR cases.”

       With this framework established, we next consider whether a juvenile court is

permitted to deviate from the statutory framework by including other factors.




       11
         If, however, the juvenile court does not find either exceptional circumstances or
unfitness, the court may not re-examine best interests without keeping the constitutionally-
based parental presumption firmly in mind. In re Adoption of Ta’Niya C., 417 Md. 90, 111
n.19 (2010).

                                              16
                           The Presence Of Additional Factors

       FL § 5-323(d) requires the juvenile court to “give primary consideration to the

health and safety of the child and consideration to all other factors needed to determine

whether terminating a parent’s rights is in the child’s best interests, including . . . .”

(Emphasis added). Thus, although the statute limits the juvenile court’s discretion and sets

forth criteria a juvenile court must consider in making the exceptional circumstances and

best interests analyses, the statutory language does not contemplate that those factors are

exclusive. See Rashawn H., 402 Md. at 499.

       Additional criteria may come into play in the exceptional circumstances analysis.

For example, in Ta’Niya C., 417 Md. at 104 n.11, we explained that in a TPR exceptional

circumstances analysis, “[i]n addition to . . . statutory factors, courts may consider ‘such

parental characteristics as age, stability, and the capacity and interest of a parent to provide

for the emotional, social, moral, material, and educational needs of the child.’” (quoting

Pastore v. Sharp, 81 Md. App. 314, 320 (1989), cert. denied, Pastore v. Sharp, 419 Md.

304 (1990)). These additional factors are germane to statutory criteria, such as a parent’s

efforts to alter circumstances to make it in the child’s best interests to return to the parent’s

home. See FL § 5-323(d)(2); see also id. (d)(2)(ii) (parent’s contributions to child’s care).

They also directly relate to the statutory inquiry regarding a parent’s unfitness or the

presence of exceptional circumstances that make continuing the relationship detrimental to

the child’s best interests. See Rashawn H., 402 Md. at 499.

       H.W. asserts that this Court applied the Ross factors in Ta’Niya C. In that case, we

analyzed language from Rashawn H. that was directly traceable to Ross. Ta’Niya C., 417


                                               17
Md. at 106. Our discussion of Ross was intended to clarify the relationship between the

presumption accorded to parents and the paramount standard in TPR proceedings—the

child’s best interests. Id. at 105. We did not apply the Ross factors or endorse application

of those factors in our decision to remand the case to the juvenile court for an appropriate

assessment of whether exceptional circumstances existed. Id. at 116–17.

       In re Adoption of K’Amora K., 218 Md. App. 287, 305–06 (2014), similarly does

not demonstrate that the Ross factors are utilized to assess exceptional circumstances in

TPR proceedings under FL § 5-323. There, the Court of Special Appeals explained that

this Court had included a parent’s behavior or character in the exceptional circumstances

analysis in another case, In re Adoption/Guardianship No. A91-71A, 334 Md. 538 (1994).

K’Amora K., 218 Md. App. at 306. But the Court of Special Appeals drew from a portion

of No. A91-71A that discussed factors other than those set forth in Ross. Id. (citing No.

A91-71A, 334 Md. at 562–63). Specifically: the effect upon the child’s stability of having

the particular relationships continue; abandonment by a parent; and a failure to support or

visit the child. These behaviors provided “insight into the parent’s character, motivation,

or ability to fulfill parental responsibilities.”12 No. A91–71A, 334 Md. at 563. These factors

do not address custody—rather they reflect on the nature of the parent-child relationship

that a TPR proceeding would sever.




       12
          These factors are already encompassed in the statute. See, e.g., FL § 5-323(d)(2)(i)
(parent’s efforts to maintain regular contact with child); id. (d)(2)(ii) (parent’s contribution
to child’s care and support); id. (d)(4)(iii)–(iv) (child’s feeling about TPR and impact of
terminating parental rights on child’s wellbeing).

                                              18
       The Department and H.W. maintain that the Court of Special Appeals’ decision

directly conflicts with In re Adoption/Guardianship of C.A. and D.A., 234 Md. App. 30

(2017), because the Court approved “use of the Ross factors in a guardianship action.” In

C.A. and D.A., after explaining that the factors in FL § 5-323 serve as mandatory criteria

to determine exceptional circumstances that would rebut the parental presumption, the

intermediate appellate court identified “[o]ther criteria relevant to an exceptional

circumstances determination,” specifically:

              the length of time that the child has been with his adoptive
              parents; the strength of the bond between the child and the
              adoptive parent; the relative stability of the child’s future with
              the parent; the age of the child at placement; the emotional
              effect of the adoption on the child; the effect on the child’s
              stability of maintaining the parental relationship; whether the
              parent abandoned or failed to support or visit with the child;
              and, the behavior and character of the parent, including the
              parent’s stability with regard to employment, housing, and
              compliance with the law.

Id. at 50 (citing No. A91–71A, 334 Md. at 562–64). These factors, drawn from No. A91–

71A, are modified from independent adoption cases relying on Ross.13 Compare id., and

No. A91-71A, 334 Md. at 562–64, with Ross, 280 Md. at 191. Notably, the Court of Special



       13
          The Ross factors have surfaced in independent adoption cases under FL § 5-3B-22,
which authorizes courts to grant adoption without a natural parent’s consent under certain
circumstances. See In re Adoption/Guardianship No. 3598, 347 Md. 295, 325–26 (1997);
In re Adoption/Guardianship No. A91-71A, 334 Md. 538, 561–62 (1994). In both cases,
the prospective adoptive parents had taken custody of the child and the natural parent
sought the child’s return. See No. 3598, 347 Md. at 327; No. A91-71A, 334 Md. at 545.
FL § 5-3B-22(b) specifically requires that the prospective adoptive parent have had
custody of the child for a specific period of time. Finally, the dispute, between two private
parties, bears greater resemblance to third-party custody cases in which the State serves as
a neutral forum, rather than an active participant.

                                              19
Appeals did not include the custody-specific factors from Ross that triggered the

controversy in this case.14

                          The Ross Factors And The TPR Statute

       The Department and H.W. contend that the Ross factors pertaining to custody are

effectively encompassed in FL § 5-323. A child’s home life is part of the TPR analysis,

which, they assert, necessarily includes custody. They reason that because the guardianship

statute gives juvenile courts discretion in making decisions concerning the child’s best

interests, custody-specific factors are entirely appropriate elements to include in the FL § 5-

323 calculation.

       The Court of Special Appeals determined that some Ross factors were consistent

with statutory factors, particularly those set forth in FL § 5-323(d)(4), and relevant to the

central question of whether the continued parental relationship would be detrimental to a

child’s best interest. H.W., 234 Md. App. at 251. But, it cautioned, factors that “expressly

pertain to custody—the possible emotional effect on the child of a change in custody and

the stability and certainty as to the child’s future in the custody of the parent—do not belong

in a TPR analysis.” Id.


       14
           The Court of Special Appeals included a factor considering the “emotional effect
of the adoption on the child.” In re Adoption/Guardianship of C.A. and D.A., 234 Md. App.
30, 50 (2017). We consider that proper framing of this factor is set forth in FL § 5-323(d)(4),
specifically, the child’s emotional ties to individuals who significantly affect his or her best
interest, the child’s feelings about ending the parent-child relationship, and the impact of
terminating parental rights on the child’s well-being. Adoption may follow a TPR decision,
but the court assessing whether to terminate parental rights must focus on whether the
parent is unfit to have a continued relationship with the child, or that exceptional
circumstances make continuing the relationship detrimental to the child’s best interests,
and whether TPR is in the child’s best interests. Rashawn H., 402 Md. at 499.

                                              20
       We agree with the Court of Special Appeals that some Ross factors demonstrate

reasonable overlap with certain statutory factors in FL § 5-323(d). The chart below

illustrates the overlap:

                Ross Factors                                 FL § 5-323(d)
 Length of time the child has been away FL § 5-323(d)(2)(iv) (additional services
 from the biological parent.                 bring about parental adjustment to return
                                             child in ascertainable time not greater than
                                             18 months from date of placement unless it
                                             in child’s best interests to extend the time).
                                             FL § 5-323(d)(4)(i) (child’s emotional ties
                                             with and feelings towards parents, siblings,
                                             others who may affect child’s best interests
                                             significantly).
                                             FL § 5-323(d)(4)(iii)–(iv) (child’s feelings
                                             about severing parent-child relationship
                                             and likely impact of TPR on child’s well-
                                             being).
 Age of child when care assumed by third FL § 5-323(d)(2)(iv) (see supra).
 party.                                      FL § 5-323(d)(4)(ii) (child’s adjustment to
                                             community, home, placement).
                                             FL § 5-323(d)(4)(iii)–(iv) (see supra).
 The period of time elapsed before the FL § 5-323(d)(2) (results of parent’s effort
 parent sought to reclaim the child.         to adjust parent’s circumstances, condition,
                                             or conduct to make it in child’s best
                                             interests to be returned to parent’s home).
                                             FL § 5-323(d)(2)(i) (extent to which parent
                                             has maintained regular contact with child).
 The nature and strength of the ties between FL § 5-323(d)(4)(i) (see supra).
 the child and the third-party custodian.    FL § 5-323(d)(4)(ii) (see supra).
 The intensity and genuineness of the FL § 5-323(d)(2) (see supra).
 parent’s desire to have the child.          FL § 5-323(d)(4)(i), (iii)–(iv) (see supra).
                                             Ta’Niya C., 417 Md. at 104 n.11.

       The custody-specific factors—the possible emotional effect on the child of a change

of custody and the stability and certainty as to the child’s future in the custody of the




                                            21
parent—present different considerations.15 To be sure, FL § 5-323(d) requires the juvenile

court to consider “all other factors needed to determine whether terminating a parent’s

rights is in the child’s best interests . . . .” before supplying a list of considerations that

must be included. (Emphasis added). And we observe that trial courts are accorded

significant discretion in making assessments about a child’s best interest. See In re

Adoption/Guardianship of Amber R., 417 Md. 701, 713 (2011). Although the custody-

specific Ross factors relate to certain statutory factors, the relationship alone does not

resolve this case.    We assess these factors, and whether they pose impermissible

considerations that may lead a juvenile court’s TPR analysis astray.

       The child’s emotional attachments and the potential emotional effect on the child

from a change of custody falls well within the explicit statutory factors a court must address

in assessing the child’s placement. See FL § 5-323(d)(4)(i) (consider “child’s emotional

ties with and feelings toward . . . others who may affect child’s best interests

significantly”); id. (d)(4)(ii) (child’s adjustment to community, home, placement, and

school). And, as in this case, that placement may be a foster family who wishes to adopt

the child. See, e.g., Jayden G., 433 Md. at 91; Amber R., 417 Md. at 707; Ta’Niya C., 417

Md. at 95–96.

       The stability and certainty as to the child’s future in the custody of the parent relates

to statutory factors considering whether the parent “is, or within a reasonable time will be,


       15
          At oral argument, we sought clarification on whether the juvenile court
independently added the Ross factors to the analysis. A review of the record reveals that
the Department relied on the Ross factors during its closing argument and specifically
discussed custodial considerations.

                                              22
able to care for the child in a way that does not endanger the child’s welfare.” Rashawn

H., 402 Md. at 500; see also FL § 5-323(d)(2) (parent’s efforts to adjust circumstances to

make it in child’s best interests for child to be returned to parent’s home); id. (d)(2)(iv)

(whether additional services could bring about “lasting parental adjustment” to return child

to parent in ascertainable time). These factors are connected—albeit loosely—to the best

interests analysis FL § 5-323 requires.

       On the other hand, we have cautioned that:

              a child’s prospects for adoption must be a consideration
              independent from the termination of parental rights . . . in that
              “the facts should first be considered as if the State were taking
              the child from the parent for some indefinite placement and
              upon that determination open the question of the suitability of
              the proposed adoption and its relation to the child’s welfare.”

Victor A., 386 Md. at 317 (quoting Cecil Cty. Dep’t of Soc. Servs. v. Goodyear, 263 Md.

611, 615 (1971)). This Court has consistently emphasized that custody proceedings are

“on a different plane than TPR proceedings.” Rashawn H., 402 Md. at 495–96; see also

Burak v. Burak, 455 Md. 564, 631–32 (2017) (declining to adopt FL § 5-323(d) criteria as

standard for unfitness in third-party custody dispute). Rashawn H., teaches us that the

statute cabins the “near-boundless discretion” that courts have in custody cases. 402 Md.

at 499.   FL § 5-323 balances a court’s inquiry into whether the continued parental

relationship is in the child’s best interests with the appropriate consideration owed to a

parent’s fundamental rights. Id. Courts must address the presumption accorded to parents,

“[r]ather than deciding at the outset what living arrangement is in the child’s best




                                             23
interests . . . .” Jayden G., 433 Md. at 95. To do otherwise risks “creat[ing] the impression

that the natural parents and a third party stood on the same footing.” Id.

       Our decision in this case turns on harmonizing these competing considerations. We

are mindful that the best interests of a child require flexibility based on the circumstances

unique to each child. Id. at 86. We must decide whether, in this case, the juvenile court’s

inclusion of custody-specific factors unduly tipped the balance between a parent’s rights,

the State’s interest in protecting vulnerable children, and the child’s best interests.

                              The Juvenile Court’s Findings

       The juvenile court first considered “all services offered to the parent before the

child’s placement, whether offered by a local department, another agency or a

professional[,]” FL § 5-323(d)(1)(i), and the “extent, nature, and timeliness of services

offered by a local department to facilitate reunions of the child and parent . . . .” Id.

(d)(1)(ii). Father’s whereabouts were unknown when H.W. came into care in 2014 and

“no services could be provided prior to the child’s placement.” Lee had communicated

with Father and explored the resources he offered when he asked for assistance in his

October 2015 letter. Lee and Father had not discussed service agreements. Father’s

incarceration made it difficult to offer reunification services, and Father did not testify that

he had “availed himself of any services or programs while incarcerated.” Because there

were no service agreements, the juvenile court was unable to make findings under

subsection (d)(1)(iii), regarding the extent to which the Department and Father had fulfilled

obligations under any service agreements.




                                              24
       Turning to subsection (d)(2), which assesses “the results of the parent’s effort to

adjust the parent’s circumstances, condition, or conduct to make it in the child’s best

interests for the child to be returned to the parent’s home,” the juvenile court considered

Father’s efforts to maintain regular contact with H.W., the Department, and the M. family.

See id. (d)(2)(i). Father has never met H.W. Although Father asked to visit his son when

he was at the December 2014 hearing and presumably was available because he stayed an

extra day, he chose not to see H.W. Father had “limited contact” with the Department and

there is no evidence that he had contact with the M. family. The juvenile court also found

under subsection (d)(2)(ii) that Father had not provided support to H.W.

       In considering Father’s incarceration, the juvenile court observed that TPR

proceedings involving an incarcerated parent turn on the specific facts of each case. The

court considered precedent demonstrating that lengthier sentences of incarceration may

weigh in favor of terminating parental rights, but the ultimate consideration was the best

interests of the child. Under subsection (d)(2)(iii), Father’s incarceration was not a parental

disability, but it impacted H.W.’s wellbeing. Father had been incarcerated or under

supervision throughout H.W.’s life, and he would be incarcerated for approximately

another year. Although this was “short term” incarceration, the court found that Father’s

incarceration and lack of contact did not serve H.W.’s best interests.

       Subsection (d)(2)(iv) requires considering whether additional services are likely to

bring about an adjustment “so that the child could be returned to the parent within an

ascertainable time not to exceed 18 months from the date of placement[.]” A juvenile court

may extend that period for an identifiable time upon a specific finding that it is in the child’s


                                               25
best interests to do so. Id. The juvenile court found that H.W. had been in the Department’s

care for almost three years, and Father had been incarcerated, or out of state, and had only

minimal contact with the Department. Although Father planned to return to Baltimore and

attempt reunification, he would be incarcerated for another year and had no concrete plans

or resources available upon his release. The court concluded that it would not be in H.W.’s

best interests to leave the case open for an additional year in the hope that Father would

come to Baltimore to reunify with H.W. “The Court can point to no behavior or pattern of

the father that would persuade the Court to believe that additional time . . . [or] additional

services would be likely to bring about a lasting parental adjustment so that the child could

be returned to the parent.”

       The juvenile court determined that subsections (d)(3)(ii)–(v)16 did not apply, but

concluded that under (d)(3)(i), which considers whether “the parent has abused or

neglected the child or a minor and the seriousness of the abuse or neglect,” Father had

“responsibility for the supervision of the child[,]” and his “inability through his actions that

have resulted in incarceration ha[ve] resulted in [n]eglect by omission.”

       FL § 5-323(d)(4)(i) requires the juvenile court to assess “the child’s emotional ties

with and feelings towards the child’s parents, the child’s siblings, and others who may

affect the child’s best interests significantly.” The court referred to the bonding study with



       16
          These subsections address: (1) results of drug tests at birth for a child; (2) whether
the parent has subjected the child to torture, abuse, sexual abuse, or chronic and life-
threatening neglect; (3) a parent’s convictions for crimes of violence against his or her
offspring or another parent of the child; and (4) whether a parent has involuntarily lost
parental rights to a sibling of the child. See FL § 5-323(d)(3)(ii)–(v).

                                              26
the M. family and observed that H.W. has bonded with his siblings. Although Father said

he would keep H.W. in touch with the twins, Father expressed an intention to take H.W.

away from Baltimore, which would separate him from his siblings.

       Subsection (d)(4)(ii) examines the child’s adjustment to the community, home,

placement, and school. The juvenile court cited Lee’s testimony about H.W.’s current

placement and his attachment to the M. family. Subsections (d)(4)(iii) and (iv) look to the

effect terminating parental rights would have on the child. In considering H.W.’s feelings

about the severance of the parent-child relationship under subsection (d)(4)(iii), the court

found that H.W., who was four at the time of the hearing, had never met Father and did not

know that Father existed.        Applying (d)(4)(iv), the hearing judge concluded that

terminating parental rights would impact H.W.’s well-being by permitting him to be

“adopted with [his] siblings by [his] current caregiver . . . .” who had cared for him “for

the majority of his 4 years of life.”

       The juvenile court then considered nine additional factors, which it identified as

“[f]actors for determining whether exceptional circumstances existed.” The juvenile

court’s finding under the first factor, the “[l]ength of time [the] child has been away from

the biological parent,” was identical with its finding under subsection (d)(2)(i)—that H.W.

has never been in Father’s care and Father has never seen H.W. Under the second factor,

the “[a]ge of [the] child when care was assumed by [the] caretakers,” the court found that

H.W. had been placed with the M. family since June 20, 2014.

       The third factor the court applied was the “[p]ossible emotional effect on [the] child

if custody changed to the biological parent.” It found that “[a]ny change that would remove


                                             27
the child from a home that he has only known would more than likely have a detrimental

effect” and that H.W. “does not know his father . . . .” Here, the court was repeating

assessments it had already made in analyzing the factors in subsections (d)(4)(ii) and (iii).

       With regard to the fourth factor, the “[p]ossible emotional effect on [the] child if

custody is given to the caretaker[,]” the court concluded:

              [H.W.] has been in the care of the current caretakers not to[o]
              long after his birth. . . . [H.W.] is in the unique position of
              being placed with his two other siblings in a home that has been
              characterized as loving. . . . [He] is bonded to the only parents
              he has known since birth. Remaining with the current
              caretakers would continue the positive emotional effect
              on . . . [H.W.].

The length of H.W.’s placement with the M. family, the positive nature of his placement

and emotional attachment to the M family, and his relationship to his siblings had already

been addressed in the court’s earlier findings under subsection (d)(4)(ii).

       The fifth and seventh factors, the time elapsed before Father sought to reclaim H.W.,

his efforts towards reclamation, as well as the “intensity and genuineness” of his desire to

have H.W., necessitated examination of facts and circumstances related to Father’s efforts

under (d)(1)–(2). The juvenile court found that Father “has stated in a letter and in

testimony a desire to have the child but has done nothing further to promote that agenda.

Father has shown no genuineness or intensity to have his child.” Here too, the juvenile

court’s analysis and findings were consistent with its existing statutory findings. In

considering the sixth factor, the “nature and strength of the ties between [the] child and

current caretaker,” the juvenile court repeated its findings from Lee’s testimony about her




                                             28
recent visit to the M. family, which it had already set forth under findings for subsection

(d)(4)(ii).

        Regarding factor eight, the stability and certainty as to H.W.’s future in Father’s

custody, the juvenile court reiterated its findings under subsections (d)(1)(i)–(ii), regarding

Father’s incarceration, and that he had not sought any services or programs while

incarcerated. The hearing judge also found that Father could be released in a year and

intended to come to Baltimore, but he “does not have any resources in place to provide

stability for himself[,] let alone a child.” Further,

               [t]he father’s family in Baltimore is not a resource for him, let
               alone a child. . . . Father did not, while on parole, seek any
               stability. Father could not successfully complete the terms of
               his     probation,     which    resulted     in   his    current
               incarceration. . . . [H.W.’s] stability and certainty . . . in
               [F]ather’s care would be one of instability and uncertainty . . . .

The juvenile court had already made these findings under subsection (d)(2)(iv), when it

considered whether additional services could bring about a lasting parental adjustment to

permit H.W. to return to Father’s care. The juvenile court’s specific conclusion regarding

Father’s stability, although not identical to other findings, was consistent with the court’s

earlier determination that Father had not demonstrated any “behavior or pattern” that

persuaded the court that “additional services would be likely to bring about a lasting

parental adjustment” such that he could safely and appropriately care for H.W. within the

statutory timeframe.

        Finally, in considering the ninth factor, the stability and certainty as to H.W.’s future

in the custody of the M. family, the juvenile court determined only that “[H.W.] has gained



                                               29
stability and certainty in the care and custody of the current caretaker and has thrived and

progressed under their care.” This conclusion recycled the juvenile court’s previous

statutory findings regarding H.W.’s placement.

                                          Analysis

       As we have explained supra, the focus of the inquiry in a TPR proceeding revolves

around whether the continued parental relationship is detrimental to the child’s best

interest. See Rashawn H., 402 Md. at 499. The juvenile court thoroughly considered the

relevant statutory factors in relation to the available evidence and made detailed findings

while keeping the presumption of the continued parental relationship in mind. See id. at 501.

       An exceptional circumstances analysis must turn on whether the presence—or

absence—of particular facts and circumstances makes continuation of the parental

relationship detrimental to the child’s best interests. See, e.g., In re Adoption/Guardianship

of Alonza D., Jr., 412 Md. 442, 462–63 (2010) (“Passage of time, without explicit findings

that the continued relationship with [the parent] would prove detrimental to the best

interests of the children, is not sufficient to constitute exceptional circumstances.”).

Consideration of any non-statutory factors in a TPR proceeding must be tailored to that

inquiry. Custodial decisions necessitate different considerations than the decision to

terminate parental rights. Rashawn H., 402 Md. at 498–99. Using purely custodial Ross

factors runs the risk of ignoring the essential assessment of the parental relationship that

is necessary to decide whether to terminate that relationship. Drawing comparisons

between a parent and a third party in TPR proceedings may risk according the third party

equal footing, particularly if the juvenile court fails to make findings in accordance with


                                             30
the statute.   Although some Ross factors are related to the statutory factors, it is

undoubtedly the best practice for juvenile courts to adhere to FL § 5-323(d). See id. at 501;

see also Ta’Niya C., 417 Md. at 104 & n.11.

       As we explained earlier, the final decision of a juvenile court is subject to review

for abuse of discretion. Ta’Niya C., 417 Md. at 100. Although by incorporating these

factors the juvenile court came perilously close—indeed, we consider this as far as a

juvenile court can go—it did not cross the line. The juvenile court did not make separate

findings based on the Ross factors. Rather, the bulk of the court’s conclusions repeated its

findings properly made under the statutory factors.        We conclude that, under these

circumstances, injecting the Ross factors did not upset the legislatively crafted balance set

out in FL § 5-323.

       Father asserts that the trial court “impermissibly contrasted H.W.’s respective

futures with [Father] and his foster parents[,]” by considering these custodial factors. He

also maintains that the juvenile court failed to properly consider whether he would be

capable of caring for H.W. within a reasonable amount of time. The TPR statute explicitly

requires the court to consider factors associated with the child’s placement, see FL § 5-

323(d)(4), and the parent’s efforts to adjust their circumstances to be reunited with the

child. See id. (d)(1)–(2). We have directed courts to proceed with caution in assessing the

factors relating to a child’s foster care placement, and not to rely on bonding with a foster

family as the primary justification for terminating parental rights.

       In Alonza D., 412 Md. at 464, we observed that it was reasonable to presume that a

“successful foster care placement has at its foundation a level of bonding by the children


                                             31
with the caretaker.” Bonding alone cannot be a dispositive factor—the juvenile court must

assess whether the continued relationship with a biological parent is detrimental to the

child’s best interests. Id. Otherwise, we reasoned, “reunification with a parent would be a

mere chimera . . . .” Id.

       Although H.W. had thrived in his foster care placement, that is not enough reason

to sever Father’s parental rights. “For exceptional circumstances to exist, the court must

also find that the passage of time when the parent and the child were apart makes

continuation of the parental relationship detrimental to the best interest of the child.”

Ta’Niya C., 417 Md. at 112. Here, the juvenile court properly looked to Father’s conduct.

H.W. did not have any ties to Father. He was unaware that Father existed. The evidence

demonstrated that Father had been relatively indifferent to his obligations to his child.

Father did not know that H.W. was in the Department’s custody for a prolonged period of

time. He had only minimal contact with the Department regarding reunification and

visitation. When Father had the opportunity to visit with H.W., he chose not to do so.

From this, the juvenile court reasonably concluded that continuing the legal relationship in

the hope that Father might make changes in his life to permit reunification was unlikely

based on Father’s past behavior, and it was not in H.W.’s best interests to do so.

       Father’s incarceration made it difficult for the Department to offer reunification

services. As we explained in Rashawn H., 402 Md. at 500, the Department must offer a

reasonable level of services to assist in reunification. See also FL § 5-525(e) (requiring

reasonable efforts to make it possible for a child to return to the child’s home). These

efforts need not be perfect, In re James G., 178 Md. App. 543, 601 (2008), but are judged


                                            32
on a case-by-case basis. In re Shirley B., 419 Md. 1, 25 (2011). Here, Father had only

sporadic contact with the Department, rendering this task even more difficult. In short,

there was no evidence that Father could, “or within a reasonable time w[ould] be, able to

care for the child in a way that does not endanger the child’s welfare.” Rashawn H., 402

Md. at 500.

                                       CONCLUSION

       The juvenile court gave “most careful consideration to the relevant statutory factors,”

and made specific findings based on the available evidence. Id. at 501. Although factors

pertaining exclusively to custody have no place in TPR assessments under FL § 5-323, the

juvenile court did not abuse its discretion when, based on these circumstances and an

appropriate statutory analysis, it terminated Father’s parental rights.

                                            JUDGMENT OF THE COURT OF
                                            SPECIAL APPEALS REVERSED. CASE
                                            REMANDED TO THAT COURT WITH
                                            INSTRUCTIONS TO AFFIRM THE
                                            JUDGMENT OF THE CIRCUIT COURT
                                            FOR BALTIMORE CITY AND REMAND
                                            THE CASE TO THAT COURT FOR
                                            PROCEEDINGS CONSISTENT WITH
                                            THIS OPINION. COSTS TO BE PAID BY
                                            RESPONDENT M.W.




                                              33
Circuit Court for Baltimore City
Case No. T15280012
Argued: April 6, 2018                  IN THE COURT OF APPEALS

                                             OF MARYLAND

                                                   No. 70

                                           September Term, 2017

                                   __________________________________

                                    IN RE: ADOPTION/GUARDIANSHIP
                                                OF H.W.
                                   __________________________________

                                        Barbera, C.J.,
                                        Greene,
                                        Adkins,
                                        McDonald,
                                        Watts,
                                        Hotten,
                                        Getty,

                                                   JJ.
                                   __________________________________

                                    Concurring and Dissenting Opinion by
                                                 Hotten, J.
                                   __________________________________

                                        Filed: July 16, 2018
       Respectfully, I must concur in part, and dissent in part with the Majority’s holding.

Using the four factors related exclusively to a custody determination is not appropriate in

deciding whether to terminate the parental rights of H.W.’s father, M.W. (“Father”). I

agree with the Majority’s rationale that “[c]onsideration of exclusively custodial factors

risks blurring important distinctions between parents and third-party custodians.” Majority

Slip Op. at 10. However, in acknowledging that an analysis of custody factors blurs

important distinctions, I do not know whether the injection of custody factors tainted the

juvenile court’s decision. I agree with the Court of Special Appeals that consideration of

custody factors was reversible error.

       At issue are the factors that a court must adhere to in rendering its findings in a TPR

proceeding. Maryland Code (1984, 2012 Repl. Vol.), § 5-323(b) of the Family Law Article

(“Fam. Law”) allows for the termination of parental rights if “a juvenile court finds by

clear and convincing evidence that a parent is unfit to remain in a parental relationship with

the child or that exceptional circumstances exist that would make a continuation of the

parental relationship detrimental to the best interests of the child such that terminating the

rights of the parent is in a child’s best interests[.]”   The two threshold considerations are

parental unfitness or exceptional circumstances. However, when a court exercises its

discretion to terminate parental rights, the most critical overarching determination is the

child’s best interest. In re Adoption of Jayden G., 433 Md. 50, 82, 70 A.3d 276, 295 (2013).

        Fam. Law § 5-323(d)(1) expressly provides the factors to be considered, including:

       (1)(i) all services offered to the parent before the child’s placement, whether
       offered by a local department, another agency, or a professional;
    (ii) the extent, nature, and timeliness of services offered by a local
         department to facilitate reunion of the child and parent; and
    (iii) the extent to which a local department and parent have fulfilled
         their obligations under a social services agreement, if any;
(2) the results of the parent’s effort to adjust the parent’s circumstances,
condition, or conduct to make it in the child’s best interests for the child
to be returned to the parent’s home, including:
    (i) the extent to which the parent has maintained regular contact with:
         1. the child;
         2. the local department to which the child is committed; and
         3. if feasible, the child’s caregiver;
    (ii) the parent’s contribution to a reasonable part of the child’s care and
    support, if the parent is financially able to do so;
    (iii) the existence of a parental disability that makes the parent
    consistently unable to care for the child’s immediate and ongoing
         physical or psychological needs for long periods of time; and
    (iv) whether additional services would be likely to bring about a lasting
    parental adjustment so that the child could be returned to the         parent
    within an ascertainable time not to exceed 18 months from the date of
    placement unless the juvenile court makes a specific finding that it is in
    the child’s best interests to extend the time for a specified period;
(3) whether:
    (i) the parent has abused or neglected the child or a minor and the
    seriousness of the abuse or neglect;
    (ii) 1. A. on admission to a hospital for the child’s delivery, the mother
    tested positive for a drug as evidenced by a positive toxicology test;
    or
           B. upon the birth of the child, the child tested positive for a drug as
           evidenced by a positive toxicology test; and
         2. the mother refused the level of drug treatment recommended by
         a qualified addictions specialist, as defined in § 5-1201 of this title,
         or by a physician or psychologist, as defined in the Health
         Occupations Article;
    (iii) the parent subjected the child to:
         1. chronic abuse;
         2. chronic and life-threatening neglect;
         3. sexual abuse; or
         4. torture;
    (iv) the parent has been convicted, in any state or any court of the United
    States, of:
         1. a crime of violence against:
             A. a minor offspring of the parent;
             B. the child; or

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                    C. another parent of the child; or
                 2. aiding or abetting, conspiring, or soliciting to commit a crime
                       described in item 1 of this item; and
              (v) the parent has involuntarily lost parental rights to a sibling of the
                child; and
       (4)(i) the child’s emotional ties with and feelings toward the child’s parents,
       the child’s siblings, and others who may affect the child’s best interests
       significantly;
            (ii) the child’s adjustment to:
                1. community;
                2. home;
                3. placement; and
                4. school;
           (iii) the child’s feelings about severance of the parent-child relationship;
           and
           (iv) the likely impact of terminating parental rights on the child’s well-
           being.

       As both the Majority and the Court of Special Appeals have alluded to, Fam. Law

§ 5-323(d) does not confine the court’s analysis to the factors specifically enumerated. The

express text of the statute allows a court to give due “consideration to all other factors

needed to determine whether terminating a parent’s rights is in the child’s best interests[.]”

Fam. Law § 5-323(d).

    In the case at bar, after considering each of the relevant statutory factors in Fam. Law

§ 5-323(d), the juvenile court could not find clear and convincing evidence of Father’s

unfitness to remain in a parental relationship with H.W. Consequently, the juvenile court

examined whether the Department had shown by clear and convincing evidence,

exceptional circumstances that rendered a continuation of the parental relationship

detrimental to the best interest of the child. In order to determine whether exceptional

circumstances existed, the juvenile court relied on four custody-specific factors which are

not expressly stated in § 5-323(d) and which we have addressed within the context of a

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child custody action. Those factors were: (1) the possible emotional effect on the child if

custody changed to biological parent; (2) the possible emotional effect on the child if

custody is given to a caretaker; (2) the stability and certainty as to the child’s future in the

custody of the parent; and (3) the stability and certainty as to the child’s future in the

custody of the caretaker. See Burak v. Burak, 455 Md. 564, 659, 168 A.3d 883, 938–39

(2017) (citing Ross v. Hoffman, 280 Md. 172, 191, 372 A.2d 582, 593 (1977)). After

considering these factors, the juvenile court determined that exceptional circumstances

existed to terminate Father’s parental rights.

       This Court has continually grappled with balancing a child’s best interest and

finding parental unfitness or exceptional circumstances. Writing for this Court, Judge

Wilner first endeavored to interpret the factors considered in a TPR proceedings in In re

Adoption/Guardianship of Rashawn H. (“Rashawn H.”), 402 Md. 477, 937 A.2d 177

(2007). Rashawn H. may not have provided as clear guidance as the Majority suggests.

As explained by the Majority, Rashawn H. struck a balance between a parent’s and child’s

interest:

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



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Id. at 501, 937 A.2d at 192; see Majority Slip Op. at 16. However, Rashawn H. did not

interpret the necessity to adhere to the expressly enumerated factors in § 5-323(d), or the

consideration of “other factors” referenced within the statute. Rashawn H.’s focus was on

drawing the distinctions between custody and TPR proceedings. The extensive legislative

and historical analysis in Rashawn H. provides guidance on the appropriateness of TPR

proceedings, but not necessarily on how juvenile courts should approach a finding of

parental unfitness or exceptional circumstances. Notwithstanding the unsettled areas of

Rashawn H., its discussion makes clear that “[t]o justify a TPR judgment, therefore, the

focus must be on the continued parental relationship, not custody.” Rashawn H., 402 Md.

at 499, 937 A.2d at 190.

       The Rashawn H. Court highlighted three elements to distinguish the heightened

standards in TPR proceedings that are not utilized when considering child custody. Id. at

498, 937 A.2d at 190. First, a presumption exists that it is in the best interest of the child

to maintain the parental relationship, which may be rebutted by a showing of unfitness or

exceptional circumstances that would make the continued relationship detrimental to the

child’s best interest. Id. Second, this presumption must be established by clear and

convincing evidence, a heightened burden than the preponderance of the evidence standard

applied in custody cases. Id. at 499, 937 A.2d at 190. Third, the Court reasoned that the

General Assembly limited a juvenile court’s discretion by expressly including factors to

determine exceptional circumstances that justify termination of a parental relationship. Id.

Considering the clarification of those elements, the Court remanded the matter for the



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juvenile court “to make clear and specific findings with respect to each of the relevant

statutory factors[.]” Id. at 505, 937 A.2d at 194.

       Upholding the juvenile court’s application of custody factors in TPR proceedings is

fundamentally at odds with the three critical elements outlined in Rashawn H. and

subsequent decisions relying on Rashawn H.’s elements. The first element in Rashawn H.

dictates that it is in the best interest of a child to maintain the parental relationship. Unless

there is a finding of unfitness or exceptional circumstances, the parental relationship should

not be terminated. In the custody context, unfitness “means an unfitness to have custody

of the child, not an unfitness to remain the child’s parent; exceptional circumstances are

those that would make parental custody detrimental to the best interest of the child.” Id. at

498, 937 A.2d at 190 (emphasis in original). In applying the factors enunciated in Fam.

Law § 5–323(d), the juvenile court could not find parental unfitness or exceptional

circumstances that would result in a detriment to H.W.            Additional factors may be

considered in the analysis, as long as the best interest of the child is “the touchstone for

courts in TPR cases.” In re Adoption of Ta’Niya C., 417 Md. 90, 111, 8 A.3d 745, 757

(2010). As the Majority points out, those factors should “relate to the statutory inquiry

regarding a parent’s unfitness or the presence of exceptional circumstances that make

continuing the relationship detrimental to the child’s best interests.” Majority Slip Op. at

17. The custody factors considered by the juvenile court indicated supra, are directly

correlated to a child’s best interest in the custody of a particular caretaker. Utilizing

custody factors may ultimately bolster a finding of exceptional circumstances where one

may not have existed. Although the Majority posits that the juvenile court’s reliance on

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custody factors did not taint the TPR decision, there is, ultimately, no way to guarantee that

it did not. Juvenile courts should be cautioned against improperly piecemealing factors

from other statutes or cases to bootstrap the desired goal of terminating a parent’s rights.

       The second element from Rashawn H. similarly leads to a conclusion that custody

factors have no place in a TPR proceeding. A heightened burden of proof reflects the

seriousness of TPR proceedings. Because a TPR proceeding could result in a complete

rescission of the parental-child relationship, the specific factors enumerated in Fam. Law

§ 5–323(d) are necessary measures to ensure protection of a parent’s fundamental right to

raise a child. See Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060 (2000)

(protecting the right “to make decisions concerning the care, custody, and control of their

children[ ]” under the Fourteenth Amendment of the United States Constitution.).

       As the Court in Rashawn H. articulated in its third element, the express inclusion of

factors to consider in Fam. Law § 5–323(d) indicates that the General Assembly sought to

focus a juvenile court’s discretion when determining exceptional circumstances that justify

termination of a parental relationship. “[I]t is clear that the General Assembly’s extensive

list of factors, when considered in the light of the standing presumption favoring parental

rights, reflect the spirit that termination is an alternative of last resort, and is not to be taken

lightly.” In re Adoption/Guardianship of Amber R., 417 Md. 701, 715, 12 A.3d 130, 138

(2011). This Court recognized that TPR proceedings are “different in kind and not just in

degree[ ]” from custody disputes, Rashawn H., 402 Md. at 496, 937 A.2d at 188 and that

the General Assembly “set forth criteria to guide and limit the court[.]” Id. at 499, 937

A.2d at 190.     Although similar factors may be relevant in both contexts, the ultimate

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inquiries are distinct. Much like we have explained that “a child’s prospects for adoption

must be a consideration independent from the termination of parental rights,” In re

Adoption/Guardianship of Victor A., 386 Md. 288, 317, 872 A.2d 662, 679 (2005),

similarly custody is too. Although a juvenile court may consider a host of other relevant

factors, the statutory directive must be followed.

       In sum, it was reversible error for the juvenile court to consider the four custody

factors utilized to find exceptional circumstances. “[I]f no parental unfitness or exceptional

circumstances exist, there is no need to inquire further as to where the best interest of the

child lies.” Ta’Niya C., 417 Md. at 105, 8 A.3d at 753 (internal quotations and citations

omitted). If the court could not find parental unfitness or exceptional circumstances, the

court’s analysis should have gone no further. Accordingly, I would affirm the judgment

of the Court of Special Appeals.




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