In re Adoption/Guardianship of Cross H.

Dissenting opinion by BELL, C.J., which GREENE, J. joins. We are asked to decide, in this case, whether, when the propriety of the order, entered in a child in need of assistance (CIÑA) case, and pursuant to which the termination of paren ³⁷² tal rights (TPR) proceedings are authorized, is the subject of a timely and properly filed appeal, it is permissible for a circuit court to pursue such proceedings when the appeal, which was filed by the parties whose parental rights are at stake, is pending in an appellate court. The majority declines to reach the merits of this issue, concluding that the matter is moot. While I, and, indeed, the petitioners, agree with the majority that the case is moot, it is nonetheless my opinion that this Court is authorized, and, more to the point, should exercise its discretion to decide this matter.

It presents an issue which is likely to recur frequently and, because of the procedural timelines involved, one that likely will evade future review. Accordingly, I dissent. I. The petitioners, Virginia H. and Aaron R., are the parents of Cross H., who was born on August 28, 2007 at Johns Hopkins Hospital. Cross H. was born prematurely, and with several health complications, including prenatal exposure to the HIV virus.

Virginia H., who was homeless at the time of Cross H.’s birth, has been diagnosed with, and hospitalized for, multiple psychiatric conditions. She also has a history of drug and alcohol use, which likely exposed Cross H., prenatally, to those substances. Shortly after her son’s birth, Virginia H. was admitted to the psychiatric unit of Johns Hopkins Hospital. She left treatment prematurely due to a disagreement with the medical staff concerning the proper course of treatment for her.

The other petitioner, Aaron R., also has a substance abuse problem, and has been convicted on more than one occasion for drug-related crimes. Cross H. was transferred to Mt. Washington Hospital on September 10, 2007, and remained there until October 3, 2007. On the day of his release, he was determined, by the Circuit Court for Howard County, to be a child in need of assistance (“CIÑA”), and, as a result, committed to the legal custody of the Howard County Department of Social Services (“the Department”).

He was subsequently placed in foster care, with a permanency plan of non-relative adoption. ³⁷³ In January, 2009, Aaron R.’s paternity of Cross H. was confirmed, at which time Cross H.’s permanency plan was changed to reflect that the objective of the plan was reunification with his father. When, however, Mr. R. acknowledged that he was not a viable placement option for his son, at the petitioners’ request and in order to explore all possible relative placement options for Cross H., the Circuit Court, sitting as a juvenile court, ordered the Department to conduct both a home study and a bonding study involving Cross’s birth parents, his foster parents, and his paternal grandmother, Barbara J. Based on the findings of the bonding study, the juvenile master recommended that Cross H.’s permanency plan be changed back to non-relative adoption. Only Virginia H. filed exceptions to the permanency plan, pursuant to which the Circuit Court conducted an exceptions hearing, spanning 4 days, on December 7 and 16, 2009, and on February 17 and 18, 2010. Following the hearing, on March 26, 2010, the juvenile court entered an order overruling the mother’s exceptions, and affirming the juvenile master’s recommendation for a permanency plan of non-relative adoption.

Virginia H. timely noted an appeal of this order to the Court of Special Appeals. 1 ³⁷⁴ While the CINA appeal was pending, the Department, consistent, and in compliance, with the Circuit Court’s order, filed, in the Circuit Court, as to each parent, a Petition to Terminate Parental Rights (“TPR”), and for Guardianship With the Right to Consent to Adoption or Long Term Care Short of Adoption of Cross. Aaron R. filed a motion, joined in by Mrs. H., to stay those proceedings until the appeal of the CINA order had been resolved. The Circuit Court denied the motion and proceeded to address the merits of the TPR petition. After a five-day trial, the Circuit Court issued an order terminating the parental rights of both Virginia H. and Aaron R. and granting guardianship of Cross H. to the Department.

The petitioners both appealed this order. Although the Circuit Court terminated the petitioners’ parental rights, it did not, upon doing so, file an order closing the CINA case, opting to defer filing such an order until Mrs. H.’s ³⁷⁵ CINA appeal had been resolved. Therefore, with regard to that appeal, the Department filed, in the Court of Special Appeals, a motion to dismiss the CINA appeal as moot. Relying on the Circuit Court’s judgment in the TPR case as support, it argued that the court’s order terminating the petitioners’ parental rights effectively terminated the Circuit Court’s jurisdiction in the CINA case as well.

The intermediate appellate court, in an unreported opinion, denied the Department’s motion. It reasoned that there still existed a live controversy in the CINA case since the juvenile court did not file, although it could have, an order closing the CINA case after the petitioners’ parental rights had been terminated. It then addressed the merits of the appeal and affirmed the judgment of the juvenile court. The court held, specifically, that the juvenile court did not err when it changed the permanency plan for Cross H. from reunification with father back to non-relative adoption.

Virginia H. filed a petition in this Court for issuance of a writ of certiorari to review the intermediate appellate court’s CINA decision. 2 We denied the petition. The petitioners, as we have seen, in the TPR case, noted timely appeals to the Court of Special Appeals. In a reported opinion, the intermediate appellate court concluded, inter alia, that the pendency of an appeal in the CINA case did not preclude the Circuit Court from proceeding to try the termination of parental rights case. In re Adoption/Guardianship of Cross H., 200 Md.App. 142, 151 , 24 A.3d 747, 753 (2011).

We granted the petitioners’ petition for writ of certiorari, In re Adoption of Cross H., 422 Md. 352 , 30 A.3d 193 (2011), to decide whether “the circuit court [may] proceed with a termination of parental rights hearing when the parents’ appeal of the ³⁷⁶ CINA order changing the permanency plan from reunification to non-relative adoption is still pending in the Court of Special Appeals.” 3 The majority declines to address this issue, dismissing it as moot, since, after the Court of Special Appeals affirmed the CINA order changing the permanency plan to non-relative adoption, and this Court denied the petitioners’ petition for writ of certiorari to review that ruling, a live controversy ceased to exist. I agree that the case is moot. I do not agree that, given the unique procedural posture presented by this case, we should refuse to decide it. It is my opinion that this is an issue that is likely to recur, but will often do so within a time frame that will render it moot and, therefore, this Court, in order to provide much needed guidance on the effect of a TPR proceeding on a CINA appeal, must decide the issue.

In that regard, in addressing the merits of the issue, I would conclude that proceeding with the adjudication of the parental rights of parties who have timely and properly appealed an order, which is still pending, that, while ostensibly separate, is, in fact, the effective predicate for such adjudication, would frustrate the right of such parties meaningfully and effectively to prosecute their appeal. Accordingly, I would hold that it is improper for a circuit court to adjudicate the parental rights of parents while a CINA case challenging the change in the permanency plan is pending on appeal.

II

Statutory Framework A child in need of assistance (CINA) is one who requires court intervention because: “(1) The child has been abused, has been neglected, has a developmental disability, or has a ³⁷⁷ 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.” Md.Code (1974, 2006 RepLVol., 2011 Supp.) § 3 — 801(f) & (g) of the Courts and Judicial Proceedings Article (“CJ”). See In re Andrew A., 149 Md.App. 412, 415 , 815 A.2d 931, 932 (2003); Tamara A. v. Montgomery County Dept. of Health and Human Servs., 407 Md. 180 , 184 n. 1, 963 A.2d 773 , 775 n. 1 (2009). The determination of whether a child should be considered a CINA must be made by a local department upon “receipt of a complaint from a person or agency having knowledge of facts which may cause a child to be subject to the jurisdiction of the court,” and upon concluding “that the court has jurisdiction over the matter and that the filing of a petition is in the best interests of he child.” CJ § 3-809(a). When the Department files a petition seeking a CINA determination, the juvenile court, which has exclusive jurisdiction over CINA cases, CJ § 3-803(a)(2), is required to hold an adjudicatory hearing for the purpose of determining whether the allegations set forth in the petition are true.

CJ § 3 — 801(c) & 3-817(a). If the accuracy of the allegations is confirmed, the court then must hold a disposition hearing. CJ § 3-801(m) & 3-819(a)(l). The purpose of that hearing is to determine “(1) Whether [the] child is in need of assistance; and (2) If so, the nature of the court’s intervention [required] to protect the child’s health, safety, and well-being.” CJ § 3-801(m).

Having concluded that the child is in need of assistance, the juvenile court may commit the child to the custody of a parent, a relative or other suitable individual, or to the local department for out-of-home placement. 4 CJ § 3 — 819(b)(l)(iii). See In re Damon M., 362 Md. 429, 435 , 765 A.2d 624, 627 (2001); In re Billy W., 386 Md. 675, 685 , 874 A.2d 423, 429 (2005); In re Karl H., 394 Md. 402, 417 , 906 A.2d 898, 906 (2006). ³⁷⁸ After a child committed to the local department’s custody enters an out-of-home placement, the juvenile court must hold a hearing within 11 months “to determine the permanency plan for [that] child.” CJ § 3-823(b)(l)(i). “[T]he purpose of a permanency plan is to set the direction in which the parent, agencies, and the court will work in terms of reaching a satisfactory conclusion,” regarding the best interests of the child in questions. 5 In re Yve S., 373 Md. 551, 582 , 819 A.2d ³⁷⁹ 1030, 1049 (2003). This Court has acknowledged the importance of a permanency plan, stating, in In re Damon M., that “[t]he permanency plan is an integral part of the statutory scheme designed to expedite the movement of Maryland’s children from foster care to permanent living, and hopefully, family arrangement. It provides the goal toward which the parties and the court are committed to work.

It sets the tone for the parties and the court and, indeed, may be outcome determinative. 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.” 362 Md. at 436 , 765 A.2d at 627-28 . Indeed, the juvenile court has several placement options when permanency planning in the best interest of the child: “reunification with the parent or guardian,” “placement with a relative,” “adoption by a non-relative,” “custody and guardianship by a nonrelative,” or: “[ajnother planned permanent living arrangement that: “A. Addresses the individualized needs of the child, including the child’s educational plan, emotional stability, physical placement, and socialization needs; and “B. Includes goals that promote the continuity of relations with individuals who will fill a lasting and significant role in the child’s life.... ” ³⁸⁰ CJ § 3-823(e)(l)(i). If the juvenile court determines that adoption is the appropriate permanent plan for a child in need of assistance, it is required, by CJ § 3 — 823(g)(1), to “[ojrder the local department to file a petition for guardianship [ 6 ] in accordance with Title 5, Subtitle 3 of the Family Law Article within 30 days [of that determination] or, if the local department does not support the plan, within 60 days.” Once that order is entered, the court is required to schedule a termination of parental rights hearing.

CJ § 3-823(g)(2). Upon the filing of the guardianship petition to terminate parental rights, the juvenile court has to make a ruling either within 180 days or within 45 days of the first to occur: receipt of consents to terminate parental rights or trial on the merits. FL § 5-319(a). An appeal to the intermediate appellate court, for review of the juvenile court’s order regarding the CINA permanency plan, must be filed “within 30 days after entry of the judgment or order from which the appeal is taken.” Md. Rule 8-202(a).

Rule 8-207(a)(l) provides that such appeals be expedited. Accordingly, the appellant must file a brief within 40 days after the filing of the record, and the appellee must file a brief within 30 days of the filing of the appellant’s brief. Md. Rule 8-502(a)(l) & (2). Oral argument in the appeal must be heard within 120 days after the transmission of the record, and the court must render a decision within 60 days “after oral argument or submission of the appeal on the briefs filed.” Md. Rule 8-207(a)(5).

The clerk of the Court of Special Appeals is then required to issue the mandate 15 days after the filing of the court’s opinion or order. Md. Rule 8-207(a)(6). The non-prevailing party then has 15 days to file a petition for writ of certiorari with this Court. Md. Rule 8-302(a). ³⁸¹ Discussion A. It is a longstanding principle that “[ajppellate courts do not sit to give opinions on abstract propositions or moot questions.” State v. Ficker, 266 Md. 500, 506-7 , 295 A.2d 231, 235 (1972).

As a result, “[a]n appeal is subject to dismissal if the case has become moot,” Potts v. Governor of Md., 255 Md. 445, 449 , 258 A.2d 180, 182 (1969), that is, when “past facts and occurrences have produced a situation in which, without any future action, any judgment or decree the court might enter would be without effect.” Hayman v. St. Martin’s Evangelical Lutheran Church, 227 Md. 338, 343 , 176 A.2d 772, 775 (1962). See also Coburn v. Coburn, 342 Md. 244, 250 , 674 A.2d 951, 954 (1996) (“A case is moot when there is no longer an existing controversy between the parties at the time it is before the court so that the court cannot provide an efféctive remedy.”). There is, however, a limited exception to the mootness doctrine, which we have recognized. See In re Joseph N., 407 Md. 278, 303-04 , 965 A.2d 59, 74 (2009); In re Justin D., 357 Md. 431, 444-45 , 745 A.2d 408, 415-16 (2000).

Pursuant to this exception, “if the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision, then the Court may find justification for deciding the issues raised by a question which has become moot, particularly if all these factors concur with sufficient weight.” Lloyd v. Bd. of Supervisors of Elections of Baltimore County, 206 Md. 36, 43 , 111 A.2d 379, 382 (1954). I believe that it is clear that this exception is applicable to the case before us. The question posed by the petitioners is whether a circuit court may proceed with a TPR hearing while an appeal from a ³⁸² CINA order, involving the parental rights of the very same parties, is pending. In this case, this question is, indeed, moot: there is no longer a CINA appeal or case pending; therefore, a judgment by this Court, whether permitting a circuit court to adjudicate a TPR case during the pendency of a CINA appeal, or not, in the absence of a future case presenting that factual scenario, would simply address a hypothetical set of circumstances and would, thus, be without effect.

See Hayman, supra. This, ordinarily, would, and should, prompt us to dismiss the matter before us. See, e.g., State v. Peterson, 315 Md. 73, 82 , 553 A.2d 672, 677 (1989); Mercy Hosp. v. Jackson, 306 Md. 556, 562 , 510 A.2d 562, 565 (1986). The limited exception articulated in Lloyd, supra, however, is applicable to this case; the issue before us “is likely to recur frequently,” and in such a manner that “the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision.” 206 Md. at 43 , 111 A.2d at 382 .

As we have seen, a TPR proceeding that proceeds in the normal manner, where a motion to stay is either not filed, or, as here, filed but denied, will last for under 180 days. FL § 5 — 319(a)(1). The process for an appeal arising out of a permanency planning hearing, however, can go on for up to 7 months, even before a petition for writ of certiorari is filed in this Court. Md. Rule 8-207.

This means that a TPR determination often will be made while a CINA appeal is still pending. This also means that the fact scenario currently before us, where parental rights are terminated while a CINA appeal is still pending in the same matter, is likely to recur. It is, thus, permissible for us to “exercise our discretion to decide the issue raised in the instant case because it is likely to recur frequently but will escape judicial review” due to the nature of the procedural timelines involved. B. The petitioners’ argument is straight-forward and succinct: a juvenile court may not proceed with a termination of parental rights hearing during the pendency of an appeal from a ³⁸³ CINA order changing a permanency plan from reunification to non-relative adoption, because an order of guardianship defeats the right of the parents to prosecute their appeal with effect.

They rely on this Court’s opinion in In re Emileigh F., 355 Md. 198, 204, 733 A.2d 1103, 1105 (1999), in which we cautioned a juvenile court against taking actions that are inconsistent with a pending appeal. The petitioners reason that, by proceeding with a TPR hearing and, subsequently, terminating the petitioners’ parental rights while their CINA appeal was pending, the juvenile court’s actions in this case violated our holding in In re Emileigh F., because they constituted just such an “inconsistent action.” The petitioners explain that, permitting a circuit court to terminate parental rights before a CINA appeal is resolved, renders any remedy arising out of that appeal meaningless; the parents of the child in question, upon being stripped legally of their parental rights, no longer possess an interest in the matter and, thus, effectively are deprived of the appeal right that Maryland law and our cases contemplate. The respondent argues, conversely, that the juvenile court properly denied the motion for a stay of the TPR proceedings. It explains that the trial court’s actions were permissible because that court is bound, by FL § 5 — 319(a)(1), to make a guardianship determination within 180 days of a TPR petition being filed.

Since no statute or rule requires the juvenile court to grant a stay in a TPR case pending resolution of a CINA appeal, the respondent submits that the Circuit Court would have violated the 180-day limit prescribed by the statute had the stay been granted. In addition, the respondents distinguish this case from In re Emileigh F., asserting that, while that case involved an action by the Circuit Court that directly impacted the appeal, the juvenile court’s decision to proceed with the TPR hearing in this case did not directly interfere with the CINA appeal. The respondent emphasizes, in that regard, and reiterates that the TPR proceeding and the appeal from the permanency planning order are two separate