In Re Adoption/Guardianship of Cadence B.

ADKINS, J. In this case, we must examine whether it is in a child’s best interest to remain in foster care in the hopes that she may someday reunite with her natural parent, even though that neglectful parent continues to willfully absent himself from any meaningful contact with the child and the child’s current caregivers are willing to provide her a permanent home through adoption. Here, Petitioner appeals from the juvenile court’s decision changing his daughter’s permanency plan from reunification to “open adoption.” Petitioner lost custody of his daughter when she was only four months old, after the Charles County Department of Social Services (“the Department”) received reports that the daughter and her half-brother were being neglected. Unfortunately, Petitioner had a history as a neglectful parent, having already lost custody of his other five children on the same grounds. His daughter was adjudged a Child In Need of Assistance (“CINA”) 1 and placed into foster care.

Despite Petitioner’s expressed desire for reunification with his daughter, he chose to move out-of-state to a home that could not be monitored by the Department and rarely traveled back to this State to take advantage of Department-sponsored visitation. After a year in foster care, the Department and the child’s counsel sought to revise her permanency plan to allow adoption by the daughter’s foster family, with whom she had clearly bonded. During a hearing to review the daughter’s permanency plan, the juvenile court considered all of the requisite statutory factors and decided that changing the ¹⁵⁰ permanency plan to “open adoption” 2 was in the daughter’s best interest. Petitioner appealed to the Court of Special Appeals, and in an unreported opinion, the intermediate court affirmed the juvenile court.

He then sought relief in this Court. We granted his Petition for Writ of Certiorari to answer the following question: Where Petitioner concededly had a positive and loving relationship with his two-year-old daughter, did the juvenile court err in terminating reunification efforts and implementing a permanency plan of adoption because of the length of time—just over a year—that the child had lived with her foster parents? 3 For the reasons articulated below, we will deny his requested relief and affirm the decision of the Court of Special Appeals. FACTS AND LEGAL PROCEEDINGS At the heart of this case sits a three-year-old girl, Cadence, who has spent the majority of her life out of the custody and care of her biological parents. Three days before her four-month birthday, the Department received a complaint that Cadence and her seven-year-old half-brother, John, were being neglected by Cadence’s parents, Mr. B. and Ms. L. During an interview with a Child Protective Services worker, John described in detail how his parents smoked drugs: John observed his mother, Mr. B. and their friend pass around a thing that they were smoking.

He described that his parents would put their mouth on one end and smoke would come out of the other end then they would pass it to ¹⁵¹ the next person who would then take the same actions.... John advised that he has also seen his parents use a “can” that they would use to smoke. John was able to provide information as to how the drugs were being smoked by describing the type of instrument used to smoke crack. John advised that what they were smoking was not a cigarette since they smoke cigarettes all the time.

John advised that he was watching his parents smoke with their friends, however, stated that his parents to not allow him to watch them smoke because they are afraid he will “tell his friends.” John also talked about how his mother and Mr. B. “often [left him] to care for [Cadence] while they walk[ed], several miles away, to obtain their drugs.” He reported that the family was “kicked out of the motel when his parent’s friend, Cliff ... told the people in the office that Mr. B. was selling drugs[.]” After its investigation, the Department filed a non-emergency CINA petition in the Charles County juvenile court on September 24, 2007. Unfortunately, this was not the Department’s first encounter with Mr. B. In 2001, the Department removed his two oldest children, J.D. and Davey, from Mr. B.’s care following “concerns [of] ... [lack] of supervision of the children, home environment, and parental drug use.” J.D. and Davey were placed into the custody of Mr. B.’s mother, who resides in Maryland. Mr. B. fathered three other children with Ms. L.— Savanna, Sebastian, and Miranda—and his parental rights to those children were involuntarily terminated in 2008. All three children tested positive at birth for illegal substances, prompting the Department to inquire into their living situation.

Each of these investigations produced findings of neglect. At this time, Mr. B. was aware of Ms. L.’s cocaine problem, but did not take steps to remove his children from their dangerous home environment. In fact, Mr. B. attempted to conceal the extent of his children’s exposure to drugs by falsifying substance abuse documents and submitting them to the Department. ¹⁵² Five months after the Department filed its petition in this case, the Charles County juvenile court declared Cadence to be a CIÑA and placed her in the temporary custody of Ms. L. under an Order of Protective Supervision. Ms. L., however, violated that order, leading the Department to place Cadence in the foster home of Mr. and Mrs. Z., where she has remained. 4 Cadence has bonded well with her foster family, “as if they were her biological family.” She is “a happy child and appears to be thriving in Mrs. Z.’s care.” Mr. and Mrs. Z. give Cadence an opportunity to have regular contact with her siblings and are “willing to continue those relationships with her siblings and with her parents.” Meanwhile, as Cadence was making her way through the juvenile system, Mr. B. was dealing with legal troubles of his own.

Three days after Cadence’s four-month birthday, Mr. B. surrendered to Charles County law enforcement after he discovered that there was a warrant for his arrest for writing a bad check. He remained incarcerated in Charles County for one month until he was extradited to Pennsylvania to satisfy another arrest warrant for welfare fraud. Following his release from jail in Pennsylvania, Mr. B. chose to remain in that state to live with his new girlfriend and current fiancée, Denise, instead of returning to Maryland where all six of his children reside. 5 His home is currently in Fayette County, Pennsylvania, which is approximately a four to four and a half hour drive from where Cadence lives in Charles County, Maryland. He and Denise share a trailer with two full baths, three bedrooms, a kitchen, living room, and laundry room.

Mr. B. pays the mortgage and lot fees for the trailer. He has ¹⁵³ also maintained employment 6 and his court-ordered urinalysis results have consistently been negative. Mr. B. has had irregular and limited contact with Cadence since she has been in foster care. 7 Between the time of his release in Pennsylvania and the juvenile hearing changing Cadence’s permanency plan, Mr. B. chose to visit her 11 out of 19 months, or, stated differently, only 18 out of 561 days. The Department has indicated to Mr. B. that he could visit Cadence more frequently and that he could arrange visits directly with Ms. Z. It has even provided him with gas vouchers to facilitate more visits, but to no avail. 8 Mr. B. does, however, send Cadence “cards, letters, gifts, [and] emails[,]” and stays in touch with Cadence’s foster mother.

When Mr. B. does visit Cadence, the two interact well. Mr. B. and Cadence have a “[v]ery good, loving[,]” “positive relationship.” As reported by one caseworker: “[Mr. B. is] nurturing to [Cadence]. He’s playful with her. He’s responsive to her needs.

The child is responsive to him. She smiles at him. She goes right to him.” Mr. B. takes Cadence to the park, to the community center, and to visit Mr. B.’s mother and his two sons who live with her. Although Ms. Z. expressed concern that Cadence does not know Mr. B., she did ¹⁵⁴ not have any safety concerns about Mr. B.’s unsupervised visits with Cadence.

As required by Maryland law; the Charles County juvenile court has monitored the progress of Cadence’s reunification with Mr. B. through a series of Permanency Plan Review hearings. The Permanency Plan Review hearing at issue in this case occurred on April 23 and 27, 2009. At its conclusion, the juvenile court changed the permanency plan from reunification to “open adoption,” 9 allowing the family to begin the process of adopting Cadence. 10 The court articulated the following reasoning in its order: Mr. B. continues to reside in Pennsylvania. He has chosen to remain in Pennsylvania, despite his family, other five children, and Cadence being in Charles County, Maryland ----Mr. B. has made a new life for himself in Pennsylvania, and he has expressed no plans to return to Maryland on a permanent basis.

Mr. B’s choice to absent himself from being available for meaningful, more frequent contact with Cadence has been the biggest impediment to reunification. Open adoption is an appropriate plan, because the parents have a good relationship with Ms. Z., who is willing to facilitate the continued relationship with the parents and abide by any post-adoption agreements reached. Because of the exceptional circumstances which exist; due to the child’s being in the Z. home for a significant part of her life; and the bond that exists between the ¹⁵⁵ child and the Z. family, the Court finds that it is in the child’s best interest to move toward permanency and to sever the parental tie legally, so that the child can be adopted by the Z.s to whom she is bonded. (Emphasis, added).

Mr. B. appealed the juvenile court’s decision to the Court of Special Appeals, and in an unreported opinion, that Court affirmed the juvenile court. Mr. B. then filed a Petition for Writ of Certiorari, which this Court granted. DISCUSSION A. Standard of Review In child custody disputes, Maryland appellate courts apply three different but interrelated standards of review: When the appellate court scrutinizes factual findings, the clearly erroneous standard ... applies. [Secondly,] if it appears that the [juvenile court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the [juvenile court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [juvenile court’s] decision should be disturbed only if there has been a clear abuse of discretion.

In re Yve S., 373 Md. 551, 586, 819 A.2d 1030, 1051 (2003). In this case, Mr. B. challenges the juvenile court’s ultimate decision rather than any findings of fact. Thus, we must determine whether that court abused its discretion. In doing so, we are mindful that [questions within the discretion of the trial court are much better decided by the trial judges than by appellate courts, and the decisions of such judges should only be disturbed where it is apparent that some serious error or abuse of discretion or autocratic action has occurred.

In sum, to be reversed the decision under consideration has to be well removed from any center mark imagined by the reviewing ¹⁵⁶ court and beyond the fringe of what that court deems minimally acceptable. Id. at 583-84 , 819 A.2d at 1049 (internal quotations omitted). B. Analysis In CINA cases where a child had been removed from the family home, a juvenile court is required to conduct “a permanency planning hearing to determine the permanency plan for a child.” Md.Code (1974, 2006 Repl.Vol., 2009 Supp.), § 3-823(b) of the Courts and Judicial Proceedings (“CJP”) Article. As we stated in Yves, The permanency plan is an integral part of the statutory scheme designed to expedite the movement of Maryland’s children from foster care to a permanent living, and hopefully, family arrangement____Services to be provided by the local social service department and commitments that must be made by the parents and children are determined by the permanency plan. 373 Md. at 581 , 819 A.2d at 1048 .

It is the court’s “responsibility [to] determin[e] the permanency plan, ... and [to] justify[ ] the placement of children in out of home placements for a specified period or on a long-term or permanent basis....” Id. at 577 , 819 A.2d at 1046 . At the hearing, the court must consider the following factors: (i) the child’s ability to be safe and healthy in the home of the child’s parent; (ii) the child’s attachment and emotional ties to the child’s natural parents and siblings; (iii) the child’s emotional attachment to the child’s current caregiver and the caregiver’s family; (iv) the length of time the child has resided with the current caregiver; (v) the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and ¹⁵⁷ (vi) the potential harm to the child by remaining in State custody for an excessive period of time. Md.Code (1999, 2006 Repl.VoL., 2009 Supp.), § 5-525(f)(l) of the Family Law (“FL”) Article. Reunification with the parent is presumptively the better option, and, absent compelling circumstances to the contrary, the plan should be to work towards reunification as it is presumed that “it is in the best interest of the children to remain in the care and custody of their [biological] parent[ ].” In re Adoption/Guardianship of Rashawn H. and Tyrese II., 402 Md. 477, 495 , 987 A.2d 177, 188 (2007).

Nevertheless, that course must be “consistent with the best interests of the child[.]” CJP § 3-823(e)(l)(i). Thus, if there are weighty circumstances indicating that reunification with the parent is not in the child’s best interest, the court should modify the permanency plan to a more appropriate arrangement. See Rashawn, 402 Md. at 496 , 937 A.2d at 189 . (“[W]here the fundamental right of parents to raise their children stands in the starkest contrast to the State’s effort to protect those children from unacceptable neglect or abuse, the best interest of the child remains the ultimate governing standard.”) In other words, the child’s best interest remains the “transcendent standard in adoption, third-party custody cases, and TPR proceedings.” In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90 , 8 A.3d 745 (2010).

See also In re Shirley B., 191 Md.App. 678, 707 , 993 A.2d 675, 692 (2010) (“In developing a permanency plan, the ‘best interests of the child’ are the primary consideration.”). Additionally, in custody and TPR cases, where there is a proven history of abuse or neglect, “the proper issue before the hearing judge [is] whether there was sufficient evidence that further abuse or neglect [is] unlikely.” Yve S., 373 Md. at 593 , 819 A.2d at 1055 ; see also FL § 9-101(b) (“Unless the court specifically finds that there is no likelihood of further child abuse or neglect by [the parent], the court shall deny custody or visitation rights to that party[.]”). The previously abusive or neglectful parent shoulders the burden of proving that the past conduct will not likely be repeated. See Yve S., 373 Md. at 587 , 819 A.2d at 1052 (“The burden is ¹⁵⁸ on the parent previously having been found to have abused or neglected his or her child to adduce evidence and persuade the court to make the requisite finding under [Section] 9-101(b).”).

Yet, “even upon substantial evidence of past abuse or neglect, [Section 9-101] does not require a finding that future abuse or neglect is impossible or will, in fact, never occur, but only that there is no likelihood—no probability—of its recurrence.” In re Adoption No. 12612, 353 Md. 209, 238 , 725 A.2d 1037, 1051 (1999). Mr. B. contends that the juvenile court in this case erred because, “[i]n focusing on the child’s time in foster care, [it] misapplied the best interest of the child standard.” 11 He attempts to analogize this case to those in which this Court has held that the juvenile court erroneously concentrated on the length of time the child was separated from the parent rather than considering all of the requisite statutory factors. According to Mr. B., “there was no evidence presented to ¹⁵⁹ suggest that Cadence would suffer abuse or neglect if she were to reside with [him].” Rather, both the case worker and Ms. Z. testified that Cadence and Mr. B. had a positive relationship. Cases Cited By Mr. B To support his argument that the juvenile court’s decision was based upon the length of time Cadence had been in the Z.’s care, and nothing else, Mr. B. relies on our decisions in In re Adoption/Guardianship of Alonza D., Jr. and Shaydon S., 412 Md. 442 , 987 A.2d 536 (2010) and McDermott v. Dougherty, 385 Md. 320 , 869 A.2d 751 (2005).

In Alonza, 412 Md. at 452-53 , 987 A.2d at 542, the juvenile court terminated a father’s parental rights, even after finding him to be a “fit parent,” because the children had spent six years—a majority of their lives—with their foster family. When the children were no more than two years old, the Department had removed them from their mother’s custody following