In Re James G.

HOLLANDER, J. In this appeal, we must consider whether the Circuit Court for Baltimore City erred when it found that the Baltimore City Department of Social Services (“DSS” or “Department”), appellee, made “reasonable efforts” to reunify James G., appellee, with his father, Mr. James G., appellant. 1 That finding led the court to change James’s permanency plan from parental reunification to placement with a relative for custody and guardianship. Mr. G. challenges that ruling on appeal. He asks: “Did the court abuse its discretion in terminating the permanency plan of reunification?” 2 For the reasons that follow, we conclude that the court erred in finding that DSS made reasonable efforts, and therefore it erred or abused its discretion in changing the permanency plan. Accordingly, we shall reverse and remand for further proceedings. ⁵⁴⁹ FACTUAL AND PROCEDURAL SUMMARY James was born on July 26, 1996, to Mr. G. and Rhonda A. He lived with his mother until March of 2004.

At that time, James began to live with appellant, because Ms. A.’s drug abuse prevented her from caring for James. A few months later, on August 6, 2004, Mr. G. was arrested for a violation of parole. 3 On August 13, 2004, the Department filed a Petition with Request for Shelter Care, alleging that James was a child in need of assistance (“CINA”). 4 According to the Department, James had been “in the care of his father for the past four months,” and they were “living with the father’s lady friend, Deborah Holman.” 5 The Petition recounted appellant’s incarceration, and also noted that Ms. A., a drug abuser, was not enrolled in treatment, was living a “transient lifestyle,” and could not be contacted by the Department. 6 By order of August 13, 2004, James was placed in the care of Ms. Holman pending an adjudicatory hearing. At a hearing on September 29, 2004, the parties stipulated that James was a CINA. Appellant reported that he would be ⁵⁵⁰ released from incarceration in October 2004. 7 Because Ms. Holman was apparently faced with loss of her Section 8 housing as of November 1, 2004, the parties jointly recommended placement of James with his aunt, Joslyn B. Accordingly, on October 8, 2004, James was adjudicated a CIÑA and committed to the custody of the Department, with limited guardianship granted to Ms. B. After a review hearing on August 29, 2005, the court placed James with his paternal cousin, Angela C. 8 The court also issued an Order on that date, establishing a permanency plan of “reunification with parent or guardian,” to be achieved by August 29, 2006.

A master for juvenile causes held a six-month review hearing on May 16, 2006. On May 24, 2006, pursuant to the master’s recommendation, the court entered an Order continuing James’s placement with his cousin, and continuing the permanency plan of reunification. However, it extended the target date for implementation until May 16, 2007. At the next six-month review hearing, held by a master on December 12, 2006, the parties requested a “contested hearing” concerning the permanency plan.

At that evidentiary hearing, held by a master on February 23, 2007, DSS sought to change James’s permanency plan from parental reunification to placement with a relative for custody and guardianship. Philomena Ukadike, 9 a DSS case worker who had been assigned to James since April 2006, was the sole witness for DSS. She reported that James was in the fourth grade, with average grades, and was receiving therapy at Kennedy Krieg ⁵⁵¹ er for minor behavioral issues. Ukadike recounted that, during the period between July 2006 and December 2006, she met with appellant just once, at the cousin’s home.

In addition, she stated: “[H]e came to the office once to see my supervisor.” According to Ukadike, DSS and appellant had executed a “service agreement,” which required appellant to obtain employment and housing, and to maintain contact with James and with the Department. However, the service agreement was not placed in the record, and no evidence was presented as to the Department’s obligations, if any, under the agreement. With regard to the Department’s request to change James’s permanency plan, Ukadike stated: “This child came into care in 2004. This is 2007.

It’s over 12 months and [appellant] hasn’t provided documentation for employment or housing.... [W]e can’t do reunification at this point.” She acknowledged, however, that while Ms. C. was “interested” in being certified as a foster parent, she “hasn’t expressed any interest [in adoption]. She [i.e., Ms. C] is hoping that the parents will really try to have a reunification with the child.” The following exchange is also pertinent: [APPELLANT’S COUNSEL]: Now with regard to the change in plan, you’re recommending that the plan be changed to limited placement for custody and guardianship. [UKADIKE]: Yes. [APPELLANT’S COUNSEL]: And not adoption. [UKADIKE]: No because child [sic] is 10 years old and I do know that the child is attached to his parents especially the father. [APPELLANT S COUNSEL]: Other than [appellant’s] lack of more stable employment— [UKADIKE]: And housing. [APPELLANT S COUNSEL]:—and lack of housing is there anything else that would prevent James from being returned to his father’s care? [UKADIKE]: No. ⁵⁵² [APPELLANT’S COUNSEL]: And are you saying then that the lack of housing and the lack of adequate employment is what makes you want to change the plan from reunification to placement with a relative for custody and guardianship? [UKADIKE]: Yeah because it’s over two years this child has been in placement. [Appellant] you know for the past two years hasn’t been able to fulfill those plans. (Boldface added.) As to appellant’s unemployment, Ukadike stated that appellant had met with her supervisor at the DSS office, who referred appellant to one organization, People Encouraging People, “to see if they could help him.” That was the only referral made by DSS. According to Ukadike, appellant “call[ed] back and said that he did go [and] that they say they couldn’t help him.” 10 Ukadike claimed she had discussed the issue of appellant’s unemployment with him.

But, she did not specify the number of conversations or the dates of such conversations. The following exchange is relevant: [APPELLANT’S COUNSEL]: Did you ever discuss his employment status with him? [UKADIKE]: Yeah he told me that he’s looking for employment but he doesn’t have enough experience and it’s difficult for him to find employment and he’s coming to [an] employment agency. [APPELLANT’S COUNSEL]: [S]o you’re saying he told you he’s working through a temporary agency? [UKADIKE]: Yes, and he said it’s difficult for him to work a job. ⁵⁵³ [APPELLANT’S COUNSEL]: So does the work through the temporary employment agency in your mind count as employment? [UKADIKE]: Well he said he has shown me his check. He said he’s not making money to be able to have housing or anything. [APPELLANT’S COUNSEL]: Did he appear to be working but just not making enough money? [UKADIKE]: Well don’t know if he’s working. I don’t know if he’s working.

(Emphasis added). Later in the hearing, Ukadike was asked whether there was “anything else that the Department of Social Services can do to help [appellant] gain more gainful employment.” She responded: “I don’t know.” As to housing, Ukadike explained that the Department had not provided appellant with housing assistance, because he did not have a job. She noted that, for his address, appellant had provided her with the address of his girlfriend, Ms. Holman, with whom he and James had lived prior to appellant’s incarceration. Testifying over appellant’s hearsay objection, Ukadike said that she had contacted Holman, who advised that appellant was not living with her. 11 But, she indicated that appellant is her friend, and that he visits to help her because she is disabled. 12 Ukadike recounted that she scheduled a home visit with Holman to assess her residence, but Holman cancelled the appointment.

Ukadike offered Holman two other dates for the home visit, both of which Holman rejected. Ukadike stated that, “[o]n that note I told her when you think it’s appropriate to call me and I will come for the home ⁵⁵⁴ assessment. I didn’t hear from her again.” Ukadike admitted that she did not contact Holman again, nor did she contact appellant to assess his housing situation. Nevertheless, Ukadike performed a clearance on Holman for purposes of visitation between appellant and James at her home, and stated that the results were “fine.” According to DSS, appellant exercised occasional visitation with James.

The following exchange is pertinent: [DEPARTMENT’S COUNSEL]: [Besides the Thanksgiving visit since the last review court [sic] which was in May what has been the visitation schedule that father has had with James? [UKADIKE]: [Appellant] use [sic] to go [to the cousin’s home] to visit James. Sometimes take James out and bring him because I’ve seen him on one or more occasion that I went on a visit he brought James over to the caretaker so I could visit with James prior to Thanksgiving you know. [DEPARTMENT’S COUNSEL]: What was the frequency? [UKADIKE]: There was no frequency.... [Appellant] could call the child once a week or for the next two or three weeks the child wouldn’t hear from him or see him. There was no frequency. [DEPARTMENT’S COUNSEL]: And what is the visitation schedule mother is following? [UKADIKE]: None because mother hasn’t come to have a service agreement. However I’ve heard from the child that when the child do visit the godmother [sic][ 13 ] mother do come over there and see the child. [DEPARTMENT’S COUNSEL]: And how often does the [child] go to see his grandmother? ⁵⁵⁵ [UKADIKE]: Every other weekend.

The following transpired on cross-examination: [APPELLANT’S COUNSEL]: With regard to the visits [between appellant and James] are the visits supervised by Department of Social Service? [UKADIKE]: It was never a supervised visit, no. [APPELLANT’S COUNSEL]: So you never had concerns about [appellant] mistreating his child so [as to] make you want to have supervised visits? [UKADIKE]: Not to the best of my knowledge. The only concern we have is that [on one occasion appellant] failed to return the child on time. The child missed two days of school. [APPELLANT’S COUNSEL]: But that’s information you got from the caregiver. [UKADIKE]: And also Ms. [Holman]. And also the godmother of the child. [APPELLANT’S COUNSEL]: With regard to the number of visits since they’re not at the agency you don’t have any direct knowledge as to how many visits occur or when they occur. [UKADIKE]: I do talk to the child.

The child did tell me when he sees his father. Since November the child hasn’t seen the father. [APPELLANT’S COUNSEL]: And that’s based on. [UKADIKE]: Based on [James] not going to see the father. [APPELLANT’S COUNSEL]: But you know this because. [UKADIKE]: The child has said and the caretaker has said. [APPELLANT’S COUNSEL]: So the Department of Social Service has no problem with [appellant] picking up his son and visiting with his child. [UKADIKE]: ... We don’t have a problem. The reason why the visit was stopped was ... an adult was living in the home.

We didn’t do any supervised inspection for the ⁵⁵⁶ home. I didn’t know anything about it you know that’s why the visit was stopped. (Emphasis added.) After Ukadike’s testimony, appellant’s counsel argued that the Department had not presented sufficient evidence to support a change in the permanency plan. The master disagreed, stating: “The court believes the Department of Social Services has presented a prima facie case for the court to make a determination as to whether the plan should be changed in this matter.” Appellant testified in his own behalf.

He stated that he has no high school diploma, but has experience in warehousing, construction, and dishwashing, and was “out every day at least four days out of the week putting in applications” for work. His job search included placing applications with temp agencies and with the City of Baltimore. His last employment, in 2006, had been temporary. He claimed that Ukadike had never discussed employment assistance with him, although her supervisor had given him a referral “that I went to and it didn’t work out.” The following colloquy is relevant: [JAMES’S COUNSEL]: You said that things did not work out with People Encouraging People? [APPELLANT]: Yeah. [JAMES’S COUNSEL]: What happened? [APPELLANT]: Well they were more on the tip that they were trying to help people that maybe that had HIV or something like that helping those type of people.

I told them I needed help as far as housing or jobwise or whatever and they say there was nothing they could do with me about that. [JAMES’S COUNSEL]: And when they told you they couldn’t help you did you go back to the Department of Social Services for another referral? [APPELLANT]: No ma’am. [JAMES’S COUNSEL]: And why not? [APPELLANT]: Because I just went out and did my thing as far as trying to get a job on my own you know and I ⁵⁵⁷ guess doing what I had to do. I never went back to talk to them. [JAMES’S COUNSEL]: Did you know if anything else was available? [APPELLANT]: Not with them but I just went out on my own like I said and tried to get a job myself and do it the way I knew how. Appellant was also questioned concerning his visitation with James: [APPELLANT’S COUNSEL]: How often do you talk with your son James and since last summer how frequently have you visited? [APPELLANT]: Oh we talk on the phone a lot. He calls me.

I call him. [APPELLANT’S COUNSEL]: And when you say a lot can you give us a number? Once a week, twice a week, once a month or something like that. [APPELLANT]: No I talk to James at least a good five times out of a week. He calls me when he get out of school. He talks to me.

I call him sometimes before he goes to bed and we talk. [APPELLANT’S COUNSEL]: And how often do you actually see him in person? [APPELLANT]: Well I just recently seen him but before— I just recently seen him maybe what a week or two weeks ago. Before then I would call ask [sic] about seeing him but he was spending time with his grandmother on his mother’s side. [APPELLANT’S COUNSEL]: Can you visit him at his grandmother’s house on his mother’s side? [APPELLANT]: I don’t even—she don’t talk to me and I haven’t been talking to the grandmother really. When he goes over there, it’s like he don’t call me when he over ⁵⁵⁸ there. He say he just don’t call when he over there or they won’t let him or something like that.... [APPELLANT’S COUNSEL]: Have you spoken with [the cousin] about visiting with James? [APPELLANT]: Yeah she lets me visit with him.

I use to could go get him bring him over and keep him but that’s been changed now so. We still having a good thing of being together and talking. [APPELLANT’S COUNSEL]: And do you love James? [APPELLANT]: Yes ma’am I sure do. [APPELLANT’S COUNSEL]: And does he appear in your view to love you too? [APPELLANT]: Yes. We have our father and son time and our little chats. We miss each other cause we apart but when we get together he tells me he want to be with me.

I want to be with him and I let him know that it’s a little something going on now and we’ll get together. We’re gonna get it together one day so you know I’m just going with it. On cross-examination, James’s counsel asked appellant how many times he had seen James since December of 2006. Appellant responded that he had seen him “a nice amount of times.

I been seeing him on and off sometimes and also talking with him.” The master then heard argument of counsel. The Department’s attorney asserted: According to Ms. [Ukadike’s] testimony the respondent has been in the same placement since July of 2005. Bonding has definitely occurred. He is progressing in school.

His therapeutic needs are being met. As you’ve heard, he does visit with his father but through all of these years with a plan of reunification the requirements of housing and employment have not been met. The Department would recognize and commend the efforts. However, we haven’t had the results we need to plan properly for James and to plan for his permanency in the future. ⁵⁵⁹ * * * You did hear testimony that at this time mother is not in a situation to accept reunification.

Father is not in a situation to accept reunification. Accordingly, the Department is requesting that the plan be changed so that we can head in a direction to provide permanency for the respondent. Counsel for James and appellant both opposed the Department’s request for a change in the permanency plan. James’s attorney argued that the Department’s referral of appellant to People Encouraging People was “not ... appropriate,” and that the Department should provide further employment assistance to appellant.

Appellant’s lawyer echoed those arguments, stating: “We believe that the department has not made reasonable efforts to implement the permanency plan basically on the reasons she has stated.” The master stated: Seems like the Department has done some things although it certainly could have done more. It seems like the father did some things although it seems like he could’ve done more as well.... There has to be a plan and there has to be something to show that the plan is going to be fulfilled. The plan here is ... reunification with the parent....

The Department of Social Services and the parents have an obligation to do something to fulfill that plan. And even if they do fulfill that plan and they do everything they’re supposed to do and the plan doesn’t work out ... the court has to change the plan. Here the father says he has been looking for employment. I do believe that he has been doing everything he is supposed to do but there has to be something that’s going to come out of there.

It’s just I looked, I looked, I looked, and I looked hard and I looked hard and nothing happened and the plan is not supposed to change. That’s not the way it works. The way it works [is] I looked. I tried.

The Department assisted me and like I said the Department certainly could’ve done a little better than what it did. And then I got a job ⁵⁶⁰ and they gave me a house and then we’re all happy, but that’s not happening because the first part is not being fulfilled for whatever reason. And it doesn’t seem to be any time table on which those things are going to be fulfilled .... Therefore the court will unfortunately have to change the plan because the plan that we have is not moving forward----I don’t see a particular problem with ... the child visiting in the father’s home except for this whole issue of inspection of the home.

Here’s what we’re going to do. The court will change the plan to placed with a relative for custody and guardianship. Limited custody to the Department of Social Services and the caretaker pending the next hearing. The court will find reasonable efforts in that the child is placed with a relative.

That the Department is monitoring the respondent’s educational needs and refer the respondent for appropriate therapy in this matter. The court will direct that the Department of Social Services and the father enter into a service agreement within 30 days and the Department of Social Services is to provide the [appellant] with appropriate employment referrals. Within 30 days the Department of Social Service [sic] to assess where the father resides for the purposes of overnight visits with the respondent in that home. The Department says they don’t have a particular problem with the child having overnights as long as the father brings the child back on time.

The father is to cooperate with all visits including times for pickup and return and he is to cooperate with inspection of his current residence. Sir, when you leave here before you leave out of the building if you could go down to there’s a place called The Family Resource Center on the first floor and ask them if they know anything about some opportunities for employment before you leave here okay? * * * I really do want ... you to have an opportunity for you to have your child returned to you but you at least got to have some employment and keep it okay? (Emphasis added.) ⁵⁶¹ On the day of the hearing, February 23, 2007, the juvenile master submitted a recommended order to the court. It summarized the hearing testimony, and stated: Although the father appears to be making some effort to attempt to comply with the requirements to have the respondent placed in his ear[e], there appears to be no timetable for which these goals can be achieved.

The court must fashion a permanency plan for the respondent that is both practicable and realistic. The court will therefore change the plan to placement with a relative for custody and guardianship or adoption. The permanency plan for James until this hearing has been reunification with parent or guardian. Baltimore City Department of Social Services made the following reasonable efforts with the parent/guardian in support of this plan: entered into a service agreement, referred child(ren) for therapeutic services and plac[e]ment in the home of a relative thereby strengthening family ties, monitoring the respondent’s education. [Effective today the permanency plan is changed to placement with a relative for adoption [or] custody and guardianship.

The implementation of the permanency plan shall be achieved by 6/23/07. The Baltimore City Department of Social Services has complied with the permanency plan. BCDSS and the father shall enter into a new service agreement within 30 days. BCDSS shall provide the father with appropriate employment referrals.

On February 27, 2007, appellant filed Exceptions, along with a request for hearing. He challenged the proposed change in the permanency plan and the proposed finding that the De ⁵⁶² partment made reasonable efforts with regard to reunification. On March 5, 2007, the court adopted the master’s proposed order as its Order. The hearing on Exceptions was held on April 26, 2007.

The court noted that the change of permanency plan to include adoption was not consistent with the transcript of the proceedings before the master, stating: “I think the adoption was a mistake. I don’t think that’s what Master Sampson intended to put in there. It was custody and guardianship.” The court then asked appellant’s counsel: “[I]f there was a concurrent plan of reunification does that change the position of your client?” Appellant’s counsel responded: “[I]t might change the argument somewhat because the main reason that this was filed was because this did say adoption; and that’s a pretty drastic change.” Counsel for the Department resisted the suggestion of a concurrent plan. The following colloquy ensued: [DEPARTMENT’S COUNSEL]: We would have issue with a concurrent plan of reunification.

That is different as I see it from a secondary plan of reunification which is essentially always a plan with the Department to continue working with parents who wish to continue. [In m]y way of thinking concurrent is a plan running right along side in first place with placement with a relative for custody and guardianship and requires the Department to take the same action toward that plan as it would take if it were the only plan. And we were looking to move on to a different permanency plan, one which would satisfy [James’s] needs as the child ... [ellipsis in original]. THE COURT: I thought we were getting away from these primary and secondary. I thought they were ... [ellipsis in original]. [DEPARTMENT’S COUNSEL]: No, that is the mandate from the federal government, for the Department, that’s the setup that the Department follows the concept of I believe, concurrent, as I see it exists in the courtroom and with this Court and in orders, but is often what the Department conceptualizes as the role. ⁵⁶³ THE COURT: Okay. [DEPARTMENT’S COUNSEL]: Secondary is backup.

The Department’s attorney also informed the court that, since the hearing before the master, the Department had assessed Ms. Holman’s home and permitted overnight visits there between appellant and James. James’s attorney asked the court to continue the plan of reunification. She said,: [W]e are asking that the permanency plan ... remain reunification or, in the alternative, for it to be a concurrent plan of relative placement for custody and guardianship along with reunification. Our main goal is to really keep reunification as part of the permanency plan in order for the Department of Social Services to continue to provide services to either mother or father toward the goal of reunification.

I do believe that there are other services out there that the Department could have referred [appellant] to but when he came before the Court, Ms. Ukadike said that she didn’t know what other services she could have referred him to, she didn’t know if there were any other services. [Appellant] says to me that the Department did not really make reasonable efforts to look for any other services. I cannot believe that there are not other agencies out there that would assist [appellant] with ... the obstacles that he has, such as being an ex-convict ... as well as the fact that he doesn’t have a high school diploma.... I really [think] that if we were to change the plan to relative placement, what we are really doing is having James stay with his Aunt under the guise of relative placement for custody and guardianship; but in fact, it’s going to be really long-term foster care and there would be no effort by the Department to help mother and father to regain ⁵⁶⁴ unification. They are going to be left trying to get that on their own.

On April 26, 2007, the court issued an Order stating that “the existing Orders were sufficient for the present,” and that it would hold “the decision in this case Sub Curia” and “file an order in the future.” The promised Order followed on May 10, 2007. It provided: The BCDSS has made reasonable, although certainly not exemplary, efforts to achieve reunification. The permanency plan for James until this hearing has been reunification with a parent or guardian. Baltimore City Department of Social Services made the following reasonable efforts with the parent/guardian in support of this plan: entered into a service agreement, referred Respondent for therapeutic services and placement in the home of a relative thereby strengthening family ties, monitored Respondent’s father’s employment and monitored the respondent’s education.

Certainly, more could have been done to help Respondent’s father get a job, which would in turn have helped with getting housing. However, given the length of time Respondent has been removed from the home, Master Sampson’s statement that the changing of the plan is “both practicable and realistic” is a sound conclusion. Respondent has been out of the home for 22 months, see 42 U.S.C. 675(5)(F). Nevertheless, and even though the plan will be changed to placement with a relative for custody and guardianship, BCDSS must make more aggressive efforts to help [appellant] obtain employment.

Plan changed from reunification to placement with a Relative for Custody and Guardianship. Exception as to the recommendation by Master Sampson that the plan change from one of reunification to relative placement is not sustained. However, Master Sampson’s recommendation that the new plan include one of placement ⁵⁶⁵ with a relative for ADOPTION is not accepted simply because that appears to be an oversight since Master Sampson, on the record, clearly did not envision adoption by Respondent’s cousin as one of the plans. Therefore, the plan does not include that of adoption by a relative.

(Emphasis added.) This appeal followed. 14 DISCUSSION I. Appellant complains that the court erred or abused its discretion “in terminating the permanency plan of reunification.” In support of his position, appellant argues that the court erred in its underlying finding that DSS made reasonable efforts to achieve reunification. Further, appellant contends that, given the failure of DSS to make reasonable efforts to assist him in finding employment and housing, his lack of both did not justify a change in the permanency plan. According to appellant, “[i]t strains credulity that ‘reasonable efforts’ can constitute a single referral to assist a parent who has little education as well as a criminal record find a job.” Although appellant concedes that the Department “is not required to make reasonable efforts where attempts at reunification would obviously be futile,” he contends that “this clearly was not such a case.” Appellant continues: In circumstances such as those presented here, that do not involve physical abuse or harm to the child, the law does ⁵⁶⁶ not permit the Department to be passive when it removes children from their parents’ custody. The law requires the Department to bring its skills, experience, and resources to bear in a reasonable way to bring about reunification.

Part of the social worker’s role is to assist the parent in following the service plan. The Department simply did not present evidence that it did so in this case. DSS counters that the court “had ample evidence to find that the plan of reunification was no longer viable.” It highlights that, at the time of the hearing, James had been in DSS’s custody for over two years. In its view, appellant “inappropriately urges lingering foster care over permanence and as such is wholly at odds with the permanency planning review process that was established by federal mandate.” DSS concludes: “Securing James a placement with a paternal relative was a proper exercise of the court’s discretion, for it placed James’s best interest at the forefront by affording him permanency.” With regard to the reasonable efforts issue, DSS maintains that appellant “abdicated his role in partnering with the Department to find steady employment and housing by declining to make contact with the Department until December 2006; giving caseworkers a false home address; and declining to inform the Department about his lack of employment success after it referred him to People Encouraging People.” Claiming that “[t]he State is not obliged to find employment for the parent,” DSS contends that, “[i]n light of [appellant’s] failure to work with the Department, and given his unilateral, unsuccessful approach to finding employment, the court correctly found that the Department’s [single] referral to People Encouraging People was a reasonable effort to assist [appellant] in finding and maintaining employment.” James does not repudiate the position he advanced below, ie., that the Department failed to make reasonable efforts in support of reunification.

Nevertheless, he contends that the court’s Order effectively addressed the Department’s previous ⁵⁶⁷ lapses, and thus the court acted within its “broad discretion” in altering his permanency plan. James explains: This case underscores how resolving CINA cases in the best interest of the child involved may require courts to craft practical solutions to familial problems. It also reflects how the passage of time or circumstances may cause a child to change his views about the plan that most suits his current needs. The court’s order reflects, at the very least, a concern that the Department needed (and continues to need) to provide employment assistance, and is an effort to ensure that the father gets that important assistance.

If the Department fails to take those steps, James or the father can seek to enforce the court’s order through contempt proceedings. If those services succeed and the father can stabilize his situation, the court will be able to reassess its permanency plan order and reconsider the appropriateness of reunification. If the father is unable to achieve sufficient stability to warrant reunification even after receipt of those services, James will continue to live with his relatives to whom the Department will have provided additional services to attain permanence for James. By ordering the Department to “make more aggressive efforts to help Mr. G. obtain employment,” the court has actually provided James with more possibilities for permanency.

Under the court’s order, the Department must now seek a relative placement while continuing to assist the father to overcome the barrier that has prevented reunification. The court’s decision is clearly in James’ best interest as it requires the Department to help the father overcome barriers to reunification, while at the same time ensuring that James has stable placement with a relative if reunification is unsuccessful. ⁵⁶⁸ II. In Maryland, when a child is removed from the home for health or safety reasons and put in an out-of-home placement, the court must establish a permanency plan for the child. Maryland Code (2006, 2007 Supp.), § 3-823(b) of the Courts and Judicial Proceedings Article (“C.J.”).

Pursuant to C.J. § 3-823(a), “out-of-home placement” is defined in accordance with Maryland Code (2006 RepLVbl., 2007 Supp.), § 5-501 of the Family Law Article (“F.L.”). Under F.L. § 5-501(m), it means “placement of a child into foster care, kinship care, group care, or residential treatment care.” 15 Pursuant to C.J. § 3-823(e), the permanency plan for such a child may be one of the following, in descending order of ⁵⁶⁹ priority, and “to the extent consistent with the best interests of the child”: 1. Reunification with the parent or guardian; 2. Placement with a relative for: A. Adoption; or B. Custody and guardianship ...; 3.

Adoption by a nonrelative; 4. Custody and guardianship by a nonrelative ...; or 5. Another planned permanent living arrangement that: A. Addresses the individualized needs of the child ... 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---- C.J. § 3-823(e)(2) directs: “In determining the child’s permanency plan, the court shall consider the factors specified in [F.L.] § 5—525(e)(1)....” In turn, F.L. § 5-525(e)(l) provides: In developing a permanency plan for a child in an out-of-home placement, the local department shall give primary consideration to the best interests of the child. The local department shall consider the following factors in determining the permanency plan that is in the best interests of the child: (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 ⁵⁷⁰ (vi) the potential harm to the child by remaining in State custody for an excessive period of time.[ 16 ] Of import here, F.L. § 5-525(d)(Z) requires the Department to make “reasonable efforts” in support of a permanency plan of parental reunification established under C.J. § 3-823(e)(l).

F.L. § 5-525(d)(l) provides: § 5-525. Out-of-home placement and foster care—In general. (d) Reasonable efforts.—(1) Unless a court orders that reasonable efforts are not required[ 17 ] ... reasonable efforts shall be made to preserve and reunify families: (1) prior to the placement of a child in an out-of-home placement, to prevent or eliminate the need for removing the child from the child’s home; and (ii) to make it possible for a child to safely return to the child’s home. (2) In determining the reasonable efforts to be made and in making the reasonable efforts described under paragraph (1) of this subsection, the child’s safety and health shall be the primary concern.

(Emphasis added). The court is also required to review the permanency plan at least every six months, until commitment is rescinded. C.J. § 3-823(h). C.J. § 3-823(h)(2) and (h)(3) are relevant: ⁵⁷¹ § 3-823.

Permanency plan for out-of-home placement. (h) Periodic reviews.— (2) At the review hearing, the court shall: (i) Determine the continuing necessity for and appropriateness of the commitment; (ii) Determine and document in its order whether reasonable efforts have been made to finalize the permanency plan that is in effect; (iii) Determine the extent of progress that has been made toward alleviating or mitigating the causes necessitating commitment; (iv) Project a reasonable date by which a child in placement may be returned home, placed in a preadoptive home, or placed under a legal guardianship; (v) Evaluate the safety of the child and take necessary measures to protect the child; and (vi) Change the permanency plan if a change in the permanency plan would be in the child’s best interest. (3) Every reasonable effort shall be made to effectuate a permanent placement for the child within 24 months after the date of initial placement. The Court of Appeals discussed the role of the permanency plan in CINA cases in In re Damon M., 362 Md. 429 , 765 A.2d 624 (2001), and noted that the plan, once established, may not be changed unless the court first determines that “it is in the child’s best interest to do so____” Id. at 436 , 765 A.2d 624 .

It said, id.: 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. It provides the goal to which the parties and the court are committed to work. It sets the ⁵⁷² tone for the parties and the court and, indeed, may be outcome determinative. Services to be provided by the local service department and commitments that must be made by the parents and children are determined by the permanency plan.

And, because it may not be changed without the court first determining that it is in the child’s best interest to do so, the permanency plan must be in the child’s best interest. These are the reasons, no doubt, that the court is charged with determining the plan and with periodically reviewing it, evaluating all the while the extent to which it is being complied with. What the Court said in In Re Yve S., 373 Md. 551 , 819 A.2d 1030 (2003), also provides guidance: As In re: Damon M. observes, the 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- to the situation. Once set initially, the goal of the permanency plan is re-visited periodically at hearings to determine progress and whether, due to historical and contemporary circumstances, that goal should be changed.

It is not the purpose of the initial permanency plan hearing, however, to resolve all issues involved in that final resolution. If that were the case, there would be no need for review of how, on a regular basis, the plan is progressing or not. Also as In re: Damon M. indicates, the initial permanency plan hearing is to be held and conducted expeditiously. Protracted proceedings in establishing the initial plan defeat the purpose of the statute.

The statute presumes that, unless there are compelling circumstances to the contrary, the plan should be to work toward reunification, as it is presumed that it is in the best interest of a child to be returned to his or her natural parent. Id. at 582 , 819 A.2d 1030 (emphasis added.) The “reasonable efforts” requirement set forth in F.L. § 5-525(d) has its genesis in federal law, with the enactment of the Adoption Assistance and Child Welfare Act of 1980 (“AACWA”), Pub.L. No. 96-272, 94 Stat. 500. See 42 U.S.C. ⁵⁷³ §§ 620-29Í & §§ 670-79b (2000, 2004 Supp.) (present codification of AACWA as amended, consisting of 42 U.S.C. Chapter 7, subchapters IV-B and IV-E, also known as Titles IV-B and IV-E of the Social Security Act); 45 C.F.R. parts 1355-57 (2007). 18 See also Kathleen S. Bean, Reasonable Efforts: What State Courts Think, 36 U. Tol. L.Rev. 321 (2004-2005) (“Bean”).

AACWA “was passed after five years of congressional testimony that highlighted the fact that a staggering number of children ... were ... residing in foster care.” Bean, 36 U. Tol. L.Rev. at 324. According to Bean, AACWA “was designed with a focus on family preservation and reunification. [It] sought to end the stagnation [of] keeping children in foster homes by requiring states to make reasonable efforts to reunite families.” Id. at 325. AACWA “represented a significant change in federal support for state intervention and the nation’s [child protective services] systems.” Will L. Crossley, Defining Reasonable Efforts: Demystifying the State’s Burden under Federal Child Protection Legislation, 12 B.U. Pub.

Int. L.J. 259 , 269 (2002-2003) (“Crossley”). Crossley notes, id. at 270: “Before 1980, the federal government reimbursed states for foster care expenses but did not offer comparable financial support for adoption or prevention and reunification services.” He adds, id.: As passed in 1980, [AACWA] continued to reimburse states for foster care maintenance payments[ 19 ] while offering additional funding for child protection, family intervention, and adoption services for children with special needs. [AACWA], however, conditioned all such funding on state ⁵⁷⁴ compliance with certain federal requirements. Part E of Title TV of [AACWA] required states to have an approved plan for administering child protective services.

With regard to “reasonable efforts,” Crossley explains, id. at 270-72 (emphasis added; footnotes omitted): Each state’s plan must provide, among other things, that “in each case, reasonable efforts mil be made (A) prior to placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home.” [See 42 U.S.C. § 671 (a)(15)(B) (current amended codification of quoted language).] This provision of [AACWA] became commonly known as the “reasonable efforts” provision. To address the foster care problem, Congress required states to make reasonable efforts at two specific points along the child protective services continuum: before removal and during foster care placement.... By creating a new Title IV-B that restricted foster care maintenance and adoption assistance expenses, [AACWA] also pushed states to focus more on preservation and reunification services. Thus, on the surface, reasonable efforts quite simply had to do with the quality of preservation services given before foster care placement and the quality of reunification services provided during foster care placement.

Both services promoted [AACWA’s] goal of reducing the number of children in foster care. In In re Adoption/Guardianship No. 10941, 335 Md. 99 , 642 A.2d 201 (1994) (“Ivan M.”), the Court discussed the development of AACWA: During the 1970’s, nationwide concern grew regarding the large number of children who remained out of the homes of their biological parents throughout their childhood, frequently moved from one foster care situation to another, thereby reaching majority without belonging to a permanent family. This phenomenon became known as “foster ⁵⁷⁵ care drift” and resulted in the enactment by Congress of [AACWA]. One of the important purposes of this law was to eliminate foster care drift by requiring states to adopt statutes to facilitate permanent placement for children as a condition to receiving federal funding for their foster care and adoption assistance programs.

Under the federal act, a state is required, among other things, to provide a written case plan for each child for whom the state claims federal foster care maintenance payment. The case plan must include ... a description of the services provided to the parents, child and foster parents to facilitate return of the child to his or her own home or to establish another permanent placement for the child. The state must also implement a case review system that provides for ... judicial review.... The purpose of the judicial review is to “determine the future status of the child” including whether the child should be returned to its biological parents, continued in foster care for a specified period, placed for adoption, or because of the child’s special needs or circumstances, continued in foster care on a long term basis.

Id. at 104-105 , 642 A.2d 201 (internal citations omitted; emphasis added). See also In Re Yve S., 373 Md. at 574-76 , 819 A.2d 1030 (same). In 1997, Congress revised AACWA through the enactment of the Adoption and Safe Families Act of 1997 (“ASFA”), Pub.L. No. 105-89, 111 Stat. 2115 (codified in 42 U.S.C. Chapter 7, subchapters IV-B and IV-E). As Bean explains, the revisions were enacted largely in response to growing criticisms directed at the “reasonable efforts” requirement, which included charges that children were still in foster homes too long.

The charge was that they lingered now, not because of agency inaction, but because agencies were engaged in excessive efforts to “repair hopelessly dysfunctional families. Instead of the permanency intended by the federal reasonable efforts clause, impermanency resulted].” Perhaps of even greater concern, however, was the perception ⁵⁷⁶ that children were being reunited with parents when it was not safe to do so in the name of reasonable efforts. Bean, 36 U. Tol. L.Rev. at 326 (footnote omitted).

Despite congressional concern about children enduring prolonged foster care, Congress did not entirely eliminate the “reasonable efforts” requirement. Rather, it revised the obligation, so that children “were no longer doomed to spend their years waiting for reunification efforts....” Id. Bean explains, id. (footnotes omitted): In 1997, after again looking at the child protection system, Congress sought to clarify “reasonable efforts” and respond to concerns that AACWA had encouraged states to go too far in preserving parent-child relationships that were more harmful than beneficial.

It did so in ASFA, primarily by making the child’s health and safety “paramount.” In line with this change, permanency for children moved to the forefront. Under ASFA, children were no longer doomed to spend their years waiting for reunification efforts to make their homes safe. Some situations were exempted from the reasonable efforts requirement, the time period for making reunification efforts was shortened, and adoption was encouraged. If efforts to reunite parent and child were not effective within a limited time, parental rights were to be terminated and adoption sought.

Under Title IV-B and IV-E, as amended by ASFA, in order to receive federal funding, a state is required to implement a federally-approved state plan for the delivery of child welfare services, which, in relevant part, must provide that “reasonable efforts shall be made to preserve and reunify families ... to make it possible for a child to safely return to the child’s home,” if such efforts are consistent with the permanency plan for the child. 42 U.S.C. § 671 (a)(15)(B). However, ASFA also mandates that, “in determining reasonable efforts to be made with respect to a child ... and in making such reasonable efforts, the child’s health and safety shall be the paramount concern.” Id., § 671(a)(15)(A). Therefore, when continuation of reunification efforts is incon ⁵⁷⁷ sistent with the permanency plan, the state plan must provide for completion of “whatever steps are necessary to finalize the permanent placement of the child.... ” Id., § 671(a)(15)(C). As indicated, a state, such as Maryland, that implements a federally approved plan may receive reimbursement for a percentage of the maintenance payments expended by the state for foster care. 42 U.S.C. § 674 (a)(1).

For an involuntary out-of-home placement to qualify for federal reimbursement funding, however, there must be “a judicial determination to the effect that ... reasonable efforts” to reunify the family or finalize the permanency plan “have been made,” id., § 672(a)(2)(A)(ii) (as amended by the Deficit Reduction Act of 2005, Pub.L. No. 109-171, 120 Stat. 4, § 7404), or that reasonable efforts need not be made, under exceptions not relevant here. Id. See also 42 U.S.C. § 671 (a)(15)(D) and note 17, supra (describing exceptions to reasonable efforts requirement). Federal regulations concerning the Title IV-B and IV-E programs articulate specific instructions to the states concerning the “reasonable efforts” requirement.

Federal regulations require, for example, that “judicial determinations regarding ... reasonable efforts to finalize the permanency plan in effect, including judicial determinations that reasonable efforts are not required, must be explicitly documented and must be made on a case-by-case basis and so stated in the court order.” 45 C.F.R. § 1356.21 (d) (2007). Further, 45 C.F.R. § 1356.21 (b) (2007) provides: (b) Reasonable efforts. The State must make reasonable efforts to maintain the family unit and prevent the unnecessary removal of a child from his/her home, as long as the child’s safety is assured; to effect the safe reunification of the child and family (if temporary out-of-home placement is necessary to ensure the immediate safety of the child); and to make and finalize alternate permanency plans in a timely manner when reunification is not appropriate or possible.... In determining reasonable efforts to be made with respect to a child and in making such reasonable efforts, the ⁵⁷⁸ child’s health and safety must be the State’s paramount concern.

(2) Judicial determination of reasonable efforts to finalize a permanency plan, (i) The State agency must obtain a judicial determination that it has made reasonable efforts to finalize the permanency plan that is in effect (whether the plan is reunification, adoption, legal guardianship, placement with a fit and willing relative, or placement in another planned permanent living arrangement) within twelve months of the date the child is considered to have entered foster care ... and at least once every twelve months thereafter while the child is in foster care. (ii) If such a judicial determination regarding reasonable efforts to finalize a permanency plan is not made ... the child becomes ineligible under title IV-E at the end of the month in which the judicial determination was required to have been made, and remains ineligible until such a determination is made. Notably, despite the federal requirement for “reasonable efforts,” it is not a defined term under federal law, either by statute or by regulation. In its Notice of Proposed Rulemaking in regard to the implementation of ASFA, HHS rejected calls for a definition of “reasonable efforts.” It explained, 63 F.R. 50057 , 50073 (1998): During our consultation with the field, some recommended that we define reasonable efforts in implementing the ASFA.

We do not intend to define “reasonable efforts.” To do so would be a direct contradiction of the intent of the law. The statute requires that reasonable efforts determinations be made on a case-by-case basis. We think any regulatory definition would either limit the courts’ ability to make determinations on a case-by-case basis or be so broad as to be ineffective. In the absence of a definition, courts may entertain actions such as the following in determining whether reasonable efforts were made: ⁵⁷⁹ • Was the service plan customized to the individual needs of the family or was it a standard package of services? • Did the agency provide services to ameliorate factors present in the child or parent, i.e., physical, emotional, or psychological, that would inhibit a parent’s ability to maintain the child safely at home? • Do limitations exist with respect to service availability, including transportation issues?

If so, what efforts did the agency undertake to overcome these obstacles?[ 20 ] Typically, State child welfare agencies and the courts encounter cases in which it is appropriate to make reasonable efforts to prevent a child’s removal from home or to reunify the family. Quite frequently, though, States are faced with circumstances in which it is unclear how much effort is reasonable. At the initial stage of and throughout its involvement with a family, the child welfare agency assesses the family’s needs and circumstances. The State agency should make reasonable efforts to prevent the child’s removal from home or to reunify the family commensurate with the assessment.

In 1998, the General Assembly adopted ASFA to comply with the federal law. See 1998 Md. Laws, ch. 539 (“[T]o provide certain reunification services and concurrently develop ⁵⁸⁰ and implement a certain permanency plan[.]”). In In re Karl H., 394 Md. 402 , 906 A.2d 898 (2006), the Court explained: “The purpose of [ASFA] was to streamline the foster care placement process and provide permanent homes for children in foster care, by expediting permanency planning hearings and TPR proceedings. Further, the presumption of [ASFA] is that if reunification efforts fail the preferred result is adoption.” Id. at 421 , 906 A.2d 898 (internal citations omitted).

In a footnote, the Court added, id. at 420 n. 15, 906 A.2d 898 : “Generally, [ASFA] is designed to promote the adoption of children in foster care. To that end, [ASFA] provides that a child’s health and safety are paramount in determining whether reasonable efforts to preserve the family had been undertaken.” The Karl H. Court also said, 394 Md. at 420 n. 15, 906 A.2d 898 : The Legislature was aware that enactment of [t]he bill could result in more court decisions to terminate parental rights and a more expedient TPR process, thereby allowing children to spend less time in foster care and be adopted more rapidly. * * * * * In addition, the bill’s provision for time-limited reunification efforts would limit provision[s] of reunification services to 15 months under specified circumstances, resulting in an indeterminate but significant amount of savings. [Department of Legislative Services, Fiscal Note, H.B. 1093 at 5, 6 (1998).] The Legislative Floor Report indicates that, “[t]he bill also establishes that reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with the reasonable efforts to reunify the family.” Department of Legislative Services, Floor Report, H.B. 1093 at 1 (1998). ⁵⁸¹ As we have seen, the “reasonable efforts” requirement embodied in F.L. § 5—525(d) (requiring that “reasonable efforts shall be made” to reunify families) derives from federal law, but “reasonable efforts” is an undefined term in the statutory scheme. Instead, the meaning and implementation of the reasonable efforts requirement is the province of the states. In Suter v. Artist M., 503 U.S. 347 , 112 S.Ct. 1360 , 118 L.Ed.2d 1 (1992), the Supreme Court ruled that private parties cannot sue under Titles IV-B and IV-E to enforce the federal reasonable efforts requirement, in part because of the statute’s silence as to the meaning of “reasonable efforts.” Id. at 363-64 , 112 S.Ct. 1360 .

The Supreme Court observed: “No further statutory guidance is found as to how ‘reasonable efforts’ are to be measured.... [I]t is a directive whose meaning will obviously vary with the circumstances of each individual case. How the State was to comply with this directive ... was, within broad limits, left up to the State.” Id. at 360 , 112 S.Ct. 1360 . In contrast to ASFA, which does not define “reasonable efforts,” the General Assembly has defined “reasonable efforts” in the Courts and Judicial Proceedings Article. C.J. § 3-801 (v) defines “reasonable efforts” as “efforts that are reasonably likely to achieve the objectives set forth in [C.J.] § 3-816.1(b)(l) and (2),” which consist of “preventing] placement of the child into the local department’s custody,” C.J. § 3-816.1(b)(l) and, for children who are placed in State custody, “[f]inaliz[ing] the permanency plan in effect for the child,” C.J. § 3-816.1(b)(2)(i), and “[m]eet[ing] the needs of the child, including the child’s health, education, safety, and preparation for independence.” C.J. § 3-816.1(b)(2)(ii).

Maryland regulations for out-of-home placements provide some insight into the contemplated range of reunification services. Code of Maryland Regulations (“COMAR”) 07.02.11.14(A) states: “To the extent that funds and other resources are available, a range of services that will facilitate or maintain successful reunification of the child shall be” provided by the local department, or, of relevance here, made ⁵⁸² available through referral to other appropriate agencies. CO-MAR 07.02.11.14(B) continues: The types of services which may be purchased, provided, or accessed through referral to another agency may include, but are not limited to: * * * (2) Rent deposits; (4) Vocational counseling or training; (9) Assistance to locate housing; COMAR 07.02.11.15(F)(4) is also relevant. It includes in the “minimum” requirements for a service agreement between the Department and a parent “[a] list of the services and supports that the caseworker and the local department shall provide to assist the parents or legal guardian and the child, as appropriate to the case plan, as well as the time frames in which these services will be provided____” In accordance with federal requirements, C.J. § 3-816.1(b)(2) provides that, at each six-month permanency plan review hearing, the court is required to “make a finding whether a local department [of social services] made reasonable efforts” to finalize the permanency plan in effect for the child.

The court must also require the local department to “provide evidence of its efforts” before it makes its finding. C.J. § 3-816.1(b)(4). Further, the court must “assess the efforts made since the last adjudication of reasonable efforts and may not rely on findings from prior hearings.” C.J. § 3-816.1(b)(5). C.J. § 3-816.1(c) directs the court to consider several factors in making its reasonable efforts determination, including the following: ⁵⁸³ (1) The extent to which a local department has complied with the law, regulations, state or federal court orders, or a stipulated agreement accepted by the court regarding the provision of services to a child in an out-of-home placement; (2) Whether a local department has ensured that: (i) A caseworker is promptly assigned to and actively responsible for the case at all times; (ii) The identity of the caseworker has been promptly communicated to the court and the parties; and (iii) The caseworker is knowledgeable about the case and has received on a timely basis all pertinent files and other information after receiving the