In Re Joseph N.

ADKINS, J. In this CINA case 1 we add to earlier case law in explaining what constitutes a “change” in the terms of an order for care and custody of a CINA child for purposes of determining a parent’s right to an interlocutory appeal pursuant to Maryland Code (1974, 2006 Repl Vol., 2008 Supp.), Section 12-303(3)(x) of the Courts and Judicial Proceedings Article (“CJP”). 2 We also confront the unwieldy question of mootness arising from dual track trial court and appellate proceedings that are required in order to comply with both Section 12-303(3)(x) and the requirement for review hearings by the juvenile court under Maryland Code (1984, 2006 RepLVol., 2008 Supp.), Section 5-326 of the Family Law Article (“FL”). We issued a writ of certiorari to consider the following question: Did the Court of Special Appeals err in dismissing Petitioner’s appeal as moot because she had not noted an appeal from an order issued at a subsequent review hearing, when that order did not change the terms of the antecedent order ²⁸¹ and thus was not appealable under the In re Billy W. [, 387 Md. 405 , 875 A.2d 734 (2005)] line of cases? We shall hold that Petitioner had a right to an interlocutory appeal and that the appeal has not been rendered moot by orders issued at subsequent review hearings. FACTS AND LEGAL PROCEEDINGS Nine-year-old Joseph was first removed from the custody of Ms. N., his natural mother and sole caretaker, in December 2005 after representatives of Child Welfare Services (“CWS”), a division of Respondent, Montgomery County Department of Health and Human Services (“the Department”), visited Ms. N.’s apartment.

The CWS representatives observed that the apartment was in “poor” condition and that Ms. N. had covered the heating vents with plastic sheeting to prevent emanations of imagined poisonous gas. Ms. N. was evaluated and diagnosed as having “major depressive disorder with psychotic features.” The Circuit Court for Montgomery County, sitting as a juvenile court, allowed Joseph to return to Ms. N.’s home in January 2006 after Ms. N. agreed to participate in a treatment program. In November 2006, Housing Opportunities Commission (“HOC”) and CWS workers visited Ms. N.’s apartment, observed unsanitary conditions, and discovered that Ms. N. had resumed covering her vents, was using an open oven to heat the apartment, had not attended therapy for at least two months and was not taking her medications. Joseph was placed in emergency shelter care.

Joseph, then ten, was declared a CINA 3 in December 2006, and returned to Ms. N.’s custody under the protective supervision of the Department. ²⁸² The Department petitioned the court for another emergency shelter care proceeding in March 2007 after Department staff visited Ms. N.’s apartment and observed vents covered in one room, the oven left on and open, large amounts of dirty clothing, dirty dishes and trash strewn throughout the apartment, the presence of insects, a shortage of food, and a bathtub full of soaking clothing. Staff also detected the smell of urine in Joseph’s room and observed Ms. N. disheveled, angry and aggressive. A social worker reported that she was unable to find any clean clothes for Joseph. Joseph was removed from Ms. N.’s home and placed in emergency foster care.

On March 30, 2007, the juvenile court found that Ms. N. was mentally unstable, incapable of caring for Joseph, had repeatedly violated safety plans entered into with the Department, and had not adhered to HOC Supportive Housing Program requirements. The court ordered that Joseph remain placed in the care and custody of the Department and remain placed in foster care. It granted the Department “temporary limited primary guardianship for all purposes[.]” 4 On April 3, 2007, the court then issued an order continuing Joseph’s placement into the care and custody of the Department. The juvenile court held another periodic review hearing on June 20, 2007, which is the subject of this appeal.

At that hearing, the court ordered that Joseph remain a CINA. It then moved Joseph from the foster care home he entered in March 2007, and placed him in the care and custody of his father, Mr. E., under the protective supervision of the Department. The court ordered that visitation between Joseph and Ms. N. occur a minimum of once per week, supervised and' under the direction of the Department. The court continued ²⁸³ to grant the Department “limited primary guardianship for all purposes to consent to the provision of routine medical, including mental health, and dental care services for the Child” and “reaffirmed” Joseph’s permanency plan 5 of reunification.

Ms. N. appealed to the Court of Special Appeals (“COSA”), arguing that the juvenile court abused its discretion in ordering that Joseph remain a CINA, not be returned to Ms. N.’s custody immediately, and be placed instead with his father under the protective supervision of the Department. This decision, she asserted, was not supported by the evidence. The COSA, in an unreported opinion filed on January 7, 2008, dismissed Ms. N.’s appeal as moot because the juvenile court, at a December 7, 2007 review hearing, had decided that Ms. ²⁸⁴ N. had not made sufficient progress to award her custody. 6 The COSA reasoned that “even if [it] were to agree with [Ms. N.] that the court below erred, [its] decision would not provide her with any ‘effective remedy,’ as Joseph’s current custodial status was decided by the December 7, 2007 review hearing, which is not under review.” At the December 7, 2007 hearing, the juvenile court ordered that Joseph remain a CINA, under the jurisdiction of the court, and remain in the care and custody of his father, under the protective supervision of the Department. The court, again, “reaffirmed” Joseph’s permanency plan of reunification.

It then rescinded the Department’s limited primary guardianship of Joseph. The Department’s accompanying status report for the December 7, 2007 review hearing stated that “Joseph [N.’s] permanency plan of reunification was achieved on June 20, 2007.” The Department’s report then recommended that the court “reaffirm[ ] that plan.” On February 7, 2008, the juvenile court held another review hearing. The court granted Joseph’s father full custody and closed Joseph’s CINA case, upon its determination that its jurisdiction was terminated. Ms. N. appealed that order, and on January 14, 2009, the COSA issued its opinion, affirming the juvenile court.

DISCUSSION Courts are required, under CJP Section 3-823(h), to conduct periodic hearings to review a child’s permanency plan when the child has been declared a CINA and placed in an out-of-home placement. Subsection 3-823(h)(l)(i) mandates periodic reviews “at least every 6 months until commitment is rescinded or a voluntary placement is terminated.” If the court determines “that the child shall be continued in out-of-home placement with a specific caregiver who agrees to care ²⁸⁵ for the child on a permanent basis[,]” the court must “conduct a review hearing every 12 months[.]” CJP § 3—823(h)(l)(ii). We discussed the significance of the permanency plan and the periodic review process in In re Damon M., 362 Md. 429, 436 , 765 A.2d 624, 627-28 (2001): 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 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. 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. We elaborated on the purpose of permanency plans and periodic reviews in In re Yve S., 373 Md. 551, 582 , 819 A.2d 1030, 1049 (2003): 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. Ms. N. contends that the intermediate appellate court erred in dismissing her appeal of the June 20, 2007 permanency plan review hearing order. She asserts that it was an appealable interlocutory order under CJP Section 12-303(3)(x), which permits an appeal of an order “[depriving a parent, grandparent, or natural guardian of the care and custody of [her] child, or changing the terms of such an order[.]” Ms. N. argues that the court’s order triggered her Section 12-303(3)(x) right to appeal because it placed Joseph with his father and had the ²⁸⁶ detrimental effect of relieving the Department of its obligation to offer services to Ms. N. in furtherance of the permanency plan to reunify her with her son. Ms. N. contends, moreover, that the COSA erroneously concluded that her appeal was moot on the basis that she did not appeal the subsequent December 7, 2007 order.

This basis was improper, she argues, because the subsequent order “did not change the terms of the antecedent order and thus was not appealable under the In re Billy W. line of cases.” 7 L Ms. N’s Right To Interlocutory Appellate Review The Department challenges, for the first time, Ms. N.’s right to interlocutory appellate review of the June 20, 2007 order and moves that we dismiss her appeal. “[T]he issue of appealability is a threshold one, which may be raised at any time by a party, even on appeal, and, indeed, which must be addressed, and will be, by the Court on its own motion, whether raised or not.” Office of State Prosecutor v. Judicial Watch, Inc., 356 Md. 118, 125 , 737 A.2d 592, 596 (1999). A party, generally, may only “appeal from a final judgment entered in a civil or criminal case by a circuit court.” CJP § 12-301. Creating an exception to that rule, Section 12-303 permits appeals from certain interlocutory orders. Among these is an order “[depriving a parent ... of the care and custody of [her] child, or changing the terms of such an order[.]” CJP § 12-303(3)(x). ²⁸⁷ The Department contends that the June 20, 2007 order is not appealable under the Section 12-303(3)(x) exception because it did not change the terms of the antecedent April 3, 2007 order to Ms. N.’s detriment.

It argues: [A]t all times after March 12, 2007, the date of the emergency shelter care hearing resulting in Joseph’s removal from his mother’s custody, Ms. N.’s custodial and visitation rights to Joseph only improved with the June 2007 order adding weekly, supervised visitation[ 8 ] The permanency plan of reunification with Ms. N. was the first and only permanency plan in the case until February 2008, when reunification ceased to be the permanency plan, and the court closed the CINA case and granted Mr. E. full custody of Joseph. The Department maintains that a final, appealable judgment did not exist until February 2008 “when the permanency plan changed ... from reunification with Ms. N. to a grant of full custody of Joseph to Mr. E. with the resultant closure of the CINA case[.]” See CJP § 3-819(e)(stating that if allegations in a CINA petition are “sustained against only one parent of a child, and there is another parent available who is able and willing to care for the child, the court may not find that the child is a [CINA], but before dismissing the case, the court may award custody to the other parent”). In In re Samone H., 385 Md. 282, 291, 297 , 869 A.2d 370, 375, 379 (2005), we considered the appealability of an order that denied a motion for an independent study of a parent’s bond with her children, when the order was issued during a permanency plan review hearing and the plan remained static. We observed that the denial of the bonding study would only be appealable as an interlocutory order under CJP Section 12- ²⁸⁸ 303(3)(x) and concluded that the order was not appealable under that Section because it did not adversely affect the mother’s parental rights or change the permanency plan terms to her detriment.

Id. at 315-16 , 869 A.2d at 390-91 . We explained: In maintaining the permanency plan to proceed with the adoption of the children, the trial court continued the permanency plan from the prior year, as well as allowed [the mother,] Katina M.[,] increased access to her children. Katina M.’s rights would have been implicated had she made the motion for bonding study and appealed its denial when the court changed the permanency plan from reunification to adoption ... but not when the judge continued the plan and increased visitation. We acknowledge that bonding studies can be beneficial to the determination of a permanency plan and may assist the court in making decisions about a child’s placement.

Nevertheless, based upon the circumstances of this case, we conclude that the trial court’s order denying the motion for such a study is not an appealable final judgment and does not constitute an interlocutory order under Section 12-303[ (3)](x). Id. at 316 , 869 A.2d at 390 (citations omitted). We encountered the issue of appealability again in the In re Billy W. cases: two related cases in which a biological parent challenged the admission of hearsay testimony within the context of a permanency planning hearing. In the first case, we declined to reach the merits of the case because the “orders, from which the appeal was taken, continuing the permanency plans for the children, [did] not constitute final judgments nor appealable interlocutory orders.” In re Billy W., 386 Md. 675, 677 , 874 A.2d 423, 424 (2005).

The challenged orders continued the commitment of the biological mother’s four children to the care and custody of the Department of Social Services (“DSS”), continued permanency plans of reunification with the mother for three of her children and continued a concurrent plan of reunification and adoption for her other child. The mother argued that an order continuing ²⁸⁹ a previously established permanency plan “should be appeal-able because the trial court’s refusal to abrogate DSS’s custody of the children and to return them to her [was] a denial of her parental rights.” Id. at 683 , 874 A.2d at 428 . We rejected this contention and concluded that the orders continuing the permanency plans for the children were not appealable because they did not detrimentally affect the mother’s custody rights or visitation with the children. Id. at 692 , 874 A.2d at 433 .

In the second In re Billy W. case, both biological parents appealed permanency plan hearing orders “that maintained the extant plans for the children but changed the visitation.” In re Billy W., 387 Md. 405, 425 , 875 A.2d 734, 746 (2005). The court’s orders eliminated the biological mother’s unsupervised visitation with two of the children and required the biological father to secure the services of an off-duty officer to supervise his visitation with one of the children. We concluded that the orders were appealable as interlocutory orders under CJP Section 12-303(3)(x) because they changed the terms of visitation to the biological parents’ detriment. Id. at 426 , 875 A.2d at 746 .

The order eliminating the mother’s visitation infringed upon her “opportunities to interact with, and care for, the boys and to potentially build stronger relationships with them.” Id. The court’s requirement that the father hire an off-duty officer with his own resources constituted “a detrimental change in [his] visitation rights because the order operated] as an effective denial of visitation should he not be able to afford to pay for the officer’s services.” Id. Our most recent case on this issue is In re Karl H., 394 Md. 402 , 906 A.2d 898 (2006). In In re Karl H., we were asked to consider whether a concurrent permanency plan order, providing for both adoption and reunification, was an appealable interlocutory order under CJP Section 12-303(3)(x).

The Court of Special Appeals reasoned that the order was not appealable because “ ‘[ordering the necessary preliminary steps toward the possible outcome of terminating parental rights did not deprive [Petitioner] ... of the care and custody ²⁹⁰ of [his] children such that the juvenile court orders were appealable interlocutory orders[.]’ ” Id. at 428 , 906 A.2d at 913 (citation and emphasis omitted). It, instead, characterized the juvenile court orders as simply imposing additional work on the county department of social services “ ‘to lay the foundation for potential adoption proceedings, including filing the guardianship petitions, serving [Petitioner] ... with required notice of the guardianship proceedings ... and seeking to identify and approve a qualified family for adoption[.]’ ” Id. (citation omitted). We rejected this assertion that a concurrent plan of reunification and adoption did not deprive parents of their rights to care and custody of their children.

The concurrent permanency plan that included the option of adoption was “sufficiently far enough along the continuum of depriving a parent of a fundamental right” and, therefore, immediately appealable. Id. at 430 , 906 A.2d at 914 . We explained: In determining whether an interlocutory order is appeal-able, in the context of custody cases, the focus should be on whether the order and the extent to which that order changes the antecedent custody order. It is immaterial that the order appealed from emanated from the permanency planning hearing or from the periodic review hearing.

If the change could deprive a parent of the fundamental right to care and custody of his or her child, whether immediately or in the future, the order is an appealable interlocutory order. Id. We regarded the goals of reunification and adoption as mutually exclusive and directly contradictory, reasoning that “[r]eunification gives a parent the opportunity for reconciliation” whereas “[t]he goal of adoption ... guarantees that, under [CJP] § 3-823(g) ... after thirty days at the earliest, a petition will be filed to terminate a parent’s rights along with the hope of reunification.” Id. at 431, 906 A.2d at 914 . We acknowledged the need for a concurrent plan of reunification ²⁹¹ and adoption, but recognized the adverse affect of such a plan on a parent’s rights to care and custody: We are not unmindful of the need for a concurrent plan of reunification and adoption; however, we find that the implementation of those goals are not parallel.

When the option of “adoption” enters into a permanency plan, whether alone or with a concurrent vision, under § 3-823(g) the “local department” must file a petition for [termination of parental rights (“TPR”)] within thirty days (or sixty days if the local department does not support the plan). A parent is deprived of a six-month review of the permanency plan. The six-month review is replaced with a TPR hearing when “adoption” is a component of the permanency plan. See § 3-823(g).

An interlocutory order which includes adoption as a possible outcome has the potential both to accelerate the termination and to terminate a parent’s custodial rights; therefore, such orders adversely affect a parent’s rights to care and custody and entitle the parent to an immediate appeal. Id., 906 A.2d at 915 . The question we must answer in this appeal is whether the court’s June 20, 2007 order effectuated a detrimental change to Ms. N.’s custody rights falling within Section 12-303(3)(x). Guided by the cases discussed above, we conclude that it did and is therefore immediately appealable.

The court’s order reaffirming a permanency plan of reunification, while shifting Joseph’s physical custody from foster care to his father, did not merely maintain the status quo for Ms. N., as the Department asserts. This shift was a consequential and potentially outcome-determinative change because it potentially increased the opportunity for Joseph’s father to obtain permanent custody. When Joseph was removed from Ms. N.’s care and custody in March 2007 and placed in foster care, the Department had a statutory obligation to make reasonable efforts to reunify Joseph with Ms. N. See FL § 5-525(d)(l)(stating that “reasonable efforts shall be made to preserve and reunify families” ²⁹² when making placement decisions). The Department was required, moreover, to give priority to Joseph’s return to Ms. N. when developing a permanency plan.

See FL § 5-525(e)(2)(requiring local departments, “[t]o the extent consistent with the best interests of the child in an out-of-home placement,” to give priority to “returning the child to the child’s parent or guardian, unless the local department is the guardian”). This focus on reunification with Ms. N. changed, however, on June 20, 2007, when the court moved Joseph into the care and custody of Mr. E., Joseph’s father. When the court reaffirmed Joseph’s permanency plan of reunification, it did not specify whether the plan was reunification with Ms. N. or reunification with Ms. N. and/or Mr. E. The Department maintains that the plan was for Joseph to be reunified with his mother. But a plan for reunification with only his mother, is substantively different from what the court ordered because the June 20 order expanded the universe of persons eligible for reunification to include Mr. E. The Department’s report, prepared for the December 7, 2007 review hearing, confirms that this was the order’s effect by stating: “Joseph [N.’s] permanency plan of reunification was achieved on June 20, 2007.” (Emphasis added.) This statement is, in essence, recognition by the Department that the court implicitly changed Joseph’s permanency plan: the Department’s focus was no longer limited to making reasonable efforts to reunify Joseph with Ms. N. and was instead, broadened to facilitate Joseph’s reunification with either his mother or his father.

This order represented a meaningful shift in direction vis a vis Ms. N., and possible restoration of her rights to parent. The court’s June 2007 placement did not immediately award Mr. E. full custody of Joseph or conclusively foreclose Ms. N.’s reunification with her son. But the order had the potential to facilitate and accelerate a grant of full custody to Mr. E. because it implicitly recognized Mr. E.’s availability, willingness, and provisional ability to care for Joseph. Mr. E.’s ²⁹³ circumstances trigger the application of CJP Section 3—819(e), which calls for closing CINA proceedings when one parent meets these criteria.

CJP Section 3-819(e) provides: Allegations sustained against only one parent.—If the allegations in the petition are sustained against only one parent of a child, and there is another parent available who is able and willing to care for the child, the court may not find that the child is a child in need of assistance, but, before dismissing the case, the court may award custody to the other parent. See also In re Sophie S., 167 Md.App. 91, 105 , 891 A.2d 1125, 1133 (2006)(holding that a juvenile court could not adjudicate a child a CINA if there was one parent who was able and willing to provide custody); In re Russell G., 108 Md.App. 366, 380 , 672 A.2d 109, 116 (1996)(same). Of special interest in this case is the juvenile court’s Section 3-819(e) authority, upon closing the CINA case, to “award custody to the other parent.” The Department did not request that the court dismiss Joseph’s CINA case and award full custody to Mr. E. at the June 20 hearing, but giving him temporary custody under the Department’s supervision was a preliminary step in that direction. If that temporary custody arrangement worked well, it was likely the juvenile court would take the next step and award Mr. E. full custody, dismissing the CINA proceeding as it was obligated to do under Section 3-819(e).

This could be done even if Ms. N. had not received the full reunification services that the Department could provide. So, the juvenile court’s determination that Mr. E. was available, willing, and able enough to care for Joseph 9 —albeit ²⁹⁴ under the Department’s supervision—increased the difficulty Ms. N. faced in her effort to be reunified with Joseph. The June 20 order was a pivotal change in the direction of Ms. N.’s permanent loss of custody because it set the stage for the court’s dismissal of Joseph’s CIÑA case and an award of full custody in favor of Mr. E. The June 20 order was also consequential and potentially outcome-determinative on the question of permanent custody because of the bonding and attachment that could take place between Joseph and Mr. E. during his placement into his father’s provisional care and custody. In In re Samone H., we described bonding as: “[T]he forming of a mutual emotional attachment between parent and child. [T]he giving of unconditional love by the parent to the child. [T]he development of an emotional connection between parent and child. [T]he development of a sense of security for the child. [T]he establishment of an emotional intimacy and sense of closeness between parent and child. [T]he beginning step in helping the child to feel a healthy self-worth and self-esteem. [T]he transmission of familial ties between child and parent through which nonverbal communication and understanding takes place. [A] means of providing the child with a sense of belonging to a family. [A] way of bringing the child into the larger network of caring and love present in the parent’s extended family. [T]he concern and love for the child by the parent, and for the parent by the child, which is exhibited in all aspects of both their lives.” 385 Md. at 307 , 869 A.2d at 384 -85 (quoting James J. Messina & Constance Messina, Tools for Parents of Children with Disabilities and Special Needs: Bonding with Your Child 1 (2004)).

Courts are “to consider the factors specified in § 5-525(e)(1) of the Family Law Article” when determining a child’s permanency plan. CJP § 3-823(e)(2). The factors for ²⁹⁵ consideration under FL Section 5-525(e) include “the child’s attachment and emotional ties to the child’s natural parents[,]” “the child’s emotional attachment to the child’s current caregiver[,]” and “the length of time the child has resided with the current caregiver[.]” The Department asserts that “the periodic review hearing held on February 7, 2008, fully preserved and realized Ms. N.’s right to appeal the order that did adversely affect her custody rights after the court’s grant of full custody to Mr. E.” The Department overlooks, however, the relative disadvantage Ms. N. would incur in her effort to be reunified with Joseph were we to delay her right to appeal until the court’s grant of full custody. There would be months to establish an emotional attachment between Mr. E. with Joseph while the child was in Mr. E.’s provisional custody.

Joseph’s time with his natural father and resulting emotional attachment may very well have been instrumental in tipping the custody scales in favor of awarding full custody to Mr. E. For the reasons explained above, we hold that Ms. N. possessed the right to maintain an interlocutory appeal from the Circuit Court’s June 20, 2007 order awarding temporary custody to Mr. E., subject to the Department’s supervision. This holding does not complete our assignment, though, because we must address the Department’s argument that her appeal became moot when the juvenile court undertook a