In Re CAYA B.

PAUL E. ALPERT, Judge, Retired, Specially Assigned. The appellant is Christine B., the mother of Caya B., a Child in Need of Assistance (“CINA”). 1 The appellees are Caya B. and the Montgomery County Department of Health ⁶⁷ and Human Services. The Juvenile Court in Montgomery County 2 granted custody and guardianship of Caya B. to her maternal uncle and his wife and declined to grant formal visitation to Christine B. Christine B. presents three arguments in this appeal, 3 which we reorder and rephrase as follows: I. The Juvenile Court abused its discretion on September 10, 2002 when it granted custody and guardianship of Caya B. to her maternal uncle and his wife instead of to her parents, and II. The Juvenile Court’s actions on January 31, 2003 amounted to a termination of Christine B.’s parental rights, and the procedures followed did not satisfy procedural due process requirements, and III.

The Juvenile Court abused its discretion on January 31, 2003 when it declined to award formal visitation to Christine B. We find merit in Christine B.’s third argument. We therefore reverse the Juvenile Court’s decision to the extent that it ⁶⁸ fails to address visitation. We remand the case to that court for further proceedings regarding visitation that are consistent with this opinion. FACTS Caya B. was bom in California on September 13, 1999, prior to the marriage of her parents, Christine B. and Craig B. A week after Caya’s birth, Christine moved with her to the home of her own parents, Marie and Edward S., in Montgomery County.

The following month, Christine and Caya moved into the home of Christine’s brother, Michael S., and his fiancée, Heather T. Craig B. moved from California to Montgomery County and also moved in with Michael and Heather. The arrangement was short-lived, however. The police were called to the home several times because of physical and verbal altercations between Christine and Craig. By Thanksgiving of 1999, Christine and Caya had moved back in with Christine’s parents.

Craig apparently moved to a nearby campground. By July of 2000, Marie and Edward S. had become concerned about the care Caya was receiving from Christine. They had observed that Christine left their home for several days at a time, sometimes taking Caya with her and sometimes not. They never knew where Christine went or when she would return.

Marie and Edward S. believed that both Christine and Craig abused alcohol. On July 15, 2000, the situation was reported to the Montgomery County Department of Health and Human Services Child Welfare Services Division (“the Department”). 4 The Department promptly contacted Marie and Edward S. The Department then contacted Christine B., who agreed to enter into a “service agreement” to improve the situation. She agreed to participate in urine testing twice a week for ⁶⁹ three weeks, to inform her parents at least 24 hours in advance if she intended to leave Caya in their care, and to have no contact with Craig B. until he entered an alcohol treatment program. By July 26, 2000, however, Christine had violated the agreement by leaving home without Caya and without notifying her parents.

The Department removed Caya from Christine’s care on an emergency basis and placed her with Marie and Edward S. An emergency shelter hearing was held on July 27, 2000, in the Juvenile Court, and the court returned Caya to her mother’s care, but under the supervision of the Department. The court directed that any contact between Caya and Craig B. be supervised by the Department. Following the hearing, Christine violated the order and her agreement with the Department by leaving Caya with her grandparents without warning, testing positive for marijuana and cocaine use, and taking Caya to visit Craig at the campground where he was staying. Caya was again placed in the temporary custody of her maternal grandparents.

On August 8, 2000, another hearing was held in the Juvenile Court and custody of Caya was transferred to Michael S. and Heather T. Visits between Christine and Caya were to be supervised by Michael or Heather. In September of 2000, Christine moved to Littlestown, Pennsylvania and obtained employment. Craig also moved to Littlestown, although Christine maintained at the time that they were not living together. Another hearing was held on October 31, 2000, and the Juvenile Court declared Caya to be a Child in Need of Assistance.

It directed that Caya temporarily remain in the care and custody of Michael and Heather, and that Christine attend parenting classes, participate in therapy for domestic abuse, attend a drug treatment program, maintain employment, and maintain stable housing separate and apart from Craig B. 5 During this period, the Department’s “Permanency ⁷⁰ Plan” for Caya called for “relative guardianship with her maternal uncle, Michael S., and his fiancée, Heather T.” Following the CINA adjudication, periodic review hearings were held. Caya remained with Michael and Heather until the following spring, when it was determined that she had contracted the Herpes Simplex I—or cold sore—virus. Because Michael and Heather feared that their own daughter would contract the virus, they informed the Department that they could no longer care for Caya. The Department then contacted Christine’s other brother, Steven S., and learned that he and his wife, Michelle, would like to care for Caya.' Steven and Michelle had two young children.

At that point, the Department developed a permanency plan for Caya that called for “relative placement "with guardianship to her maternal aunt and uncle, Steven and Michelle S.,” -with a “Concurrent Plan” for adoption by Steven and Michelle S. At the next review hearing, on May 22, 2001, the Department recommended that Caya be placed with Steven and Michelle. In a written report, the Department expressed concern that, inter alia, Christine had been terminated from various drug treatment and counseling programs due to noncompliance, failed to take parenting classes, failed to participate in therapy for doméstic abusé, failed to complete drug, treatment, failed to take advantage of the services the Department had offered her, and continued to have extensive contact with Craig B. despite his “domestic violence and substance abuse problems.” The Department recommended that Christine’s visitation with Caya be limited to once a month under the Department’s supervision. It observed: “Craig B. has never requested [to visit] or visited with Caya, since she has been involved with the Department. Craig has never shown any interest in Caya’s well[-]being and has not contacted the Department requesting assistance in getting custody.” ⁷¹ Apparently unwilling to give up on Christine at this point, the Juvenile Court instead, on May 22, 2001, transferred the care and custody of Caya back to her grandparents, Marie and Edward S., with Steven and Michelle having regular visitation in order to facilitate a possible transition to their care.

The court also ordered that Christine be permitted to visit with Caya at least twice a week, under the supervision of the Department. The court directed that Christine participate in a drug treatment program, attend Alcoholics Anonymous and Narcotics Anonymous meetings, undergo urinalysis at the direction of the Department, and refrain from using or possessing drugs or alcohol. Finally, it directed that Christine B., Marie and Edward S., and Steven and Michelle S. each undergo an individual psychological evaluation before the next hearing. According to a report prepared by the Department, in the months following the May 22, 2001 hearing, both Christine B. and Craig B. made substantial progress in addressing their substance abuse and domestic violence problems and in maintaining steady employment and a stable home.

In addition, the couple married on February 14, 2002. On March 1, 2002, Christine gave birth to a second child, Noah B. At the Department’s request, the court issued' an order dated February 19, 2002, by which it permitted Christine’s visitation with Caya to be supervised by Edward S. rather than by the Department. It further permitted Craig B. to visit with Caya under the supervision of the Department. On June 12, 2002, again at the Department’s request, the Juvenile Court issued an order permitting Christine and Craig to have unsupervised visitation with Caya, under the direction of the Department.

Caya began staying with her parents for extended periods of time. On August 16, 2002, however, Christine tested positive for marijuana use. Upon further investigation, the Department learned that Christine could not provide documentation that she had been attending Alcoholics Anonymous meetings and had not obtained a sponsor as was required for another ⁷² treatment program in which she was supposed to be participating. She had lost her job in early July.

Although she claimed then to be working with Craig as a subcontractor for a fencing company, she had failed to report the matter to the Department. The Department also learned that Christine had attended only 13 of 26 therapy sessions that had been scheduled over the past few months, and that she had not attended any therapy sessions since the end of July. Craig, who was on probation and was required to comply with weekly urinalysis, had not reported for testing since the previous March. In a written report prepared for the next review hearing, the Department outlined the perceived deficiencies on the parts of Christine and Craig and expressed its intention to pursue its permanency plan of placing Caya with Steven and Michelle S. Both Christine and Craig appeared for the hearing on September 10, 2002.

This time, the court agreed with the Department. It stated: We have been at this a long time. I think we have given the mother ample opportunity to prove that she can be as consistent as is required for us to believe that we could return the child to her. ... I think that ... the Department presents a plan that is most likely to be in the best interest of this child, that although the grandmother has provided consistent and long-term custody and care for this child that to place the child with the uncle and aunt at this time is appropriate.

The court thus granted custody and guardianship to Steven and Michelle S. Because Caya had been living with Marie and Edward S., the court directed that the transition be gradual, with Steven and Michelle visiting Caya for a period of time before Caya moved into their home. The court ordered that Christine and Craig could visit Caya once a month at the home of Steven and Michelle, and that Christine and Craig “remain drug and alcohol free for visits.” The court indicated that it would review the case in 120 days. The review hearing was held on January 31, 2003. Again, both Christine and Craig were present for the hearing, al ⁷³ though Craig was not represented by counsel.

At the close of the hearing, the court determined that it was in Caya’s best interest that custody and guardianship remain with Steven and Michelle S. 6 It closed the case “except for the purpose of complying with any mandate of an appellate court....” In response to a question by Christine’s counsel as to how visitation would be effectuated, the court responded, “I think guardianship doesn’t include visitation, unless someone can persuade me otherwise.” Counsel for the Department agreed with the court and added that, in any event, “Steven ... is not going to preclude her from visiting Caya....” The court then stated that visitation could “be done in some unofficial way....” 7 STANDARD OF REVIEW Recently, in In Re: Yve S, 373 Md. 551, 586 , 819 A.2d 1030 (2003), the Court of Appeals discussed the standard of review in cases involving a Child in Need of Assistance. The Court reiterated that there are ⁷⁴ “three distinct aspects of review in child custody disputes. When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131 (c) ] applies. [Secondly,] if it appears that the [juvenile court] erred as to matters of law, further proceedings in the [juvenile] 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] décision should be disturbed only if there has been a clear abuse of discretion.” Id. at 586 , 819 A.2d 1030 (quoting Davis v. Davis, 280 Md. 119, 125-26 , 372 A.2d 231 (1977)).

In In Re: Adoption/Guardianship No. 3598, 347 Md. 295, 312-13 , 701 A.2d 110 (1997), the Court stated: Judicial discretion [has been defined] as “that power of decision exercised to the necessary end of awarding justice and based upon reason and law, but for which decision there is no special governing' statute or rule.” It has also been defined as a “reasonable decision based upon the weighing of various alternatives.” ... There is an abuse of discretion “where no reasonable person would take the view adopted by the [trial] court,” ... or when the court acts “without reference to any guiding rules or principles.” ... An abuse of discretion may also be found where the ruling under consideration is “clearly against the logic and effect of facts and inferences before the court,” ... or when the ruling is “violative of fact and logic.”.... 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 ⁷⁵ the reviewing court and beyond the fringe of what that court deems minimally acceptable.” ... (Citations omitted.) DISCUSSION I Custody and Guardianship Christine B.’s first argument concerns the Juvenile Court’s decision of September 10, 2002, granting custody and guardianship of Caya to Steven and Michelle S., subject to further review by the court. Christine suggests that the court’s decision was based entirely on the single urinalysis that tested positive for marijuana, and asserts that the court was “unreasonable in completely dismissing [the] possibility” that it was a “false positive.” She argues that, in any event, it was more significant that, “[f]or over a year, there was no evidence that either parent was using alcohol or drugs,” and that “[b]oth parents had complied with all that the Department had requested.” Christine contends that, given the success of the extended visits she had been having with Caya and the evidence that Caya’s brother Noah was receiving adequate care, the court should have returned custody and guardianship of Caya to her. Christine B.’s argument is fundamentally flawed in that the court’s decision was not based on the single urinalysis.

Rather, as we explained in our recitation of the facts, once the Department learned that Christine had tested positive on August 16, 2002 for marijuana use, it launched an investigation. The investigation revealed that Christine had no proof that she had been attending Alcoholics Anonymous meetings, had not obtained a sponsor as was required for another treatment program in which she was supposed to be participating, had lost her job in early July and had failed to report it to the Department, had missed 13 of 26 therapy sessions that had been scheduled over the past few months, and had not attended any therapy sessions since the end of July. ⁷⁶ “Certainly, the right of the parent to rear the child is ‘an important, natural, and legal right.’ ” In Re: Adoption/ Guardianship No. 3598, 347 Md. at 324 , 701 A.2d 110 (citation omitted). “Indeed, in Maryland, we have .recognized that there exists ‘a prima facie presumption that the child’s welfare will be best subserved in the care and custody of its parents.’ ” Id. at 324-25 , 701 A.2d 110 (citation omitted). This presumption “may be rebutted by evidence of unfitness or exceptional