In Re Karl H.

GREENE, J. In In re Damon M., 362 Md. 429, 438 , 765 A.2d 624, 628 (2001), this Court held that, if a permanency plan for reunification is amended or modified to a permanency plan for adoption, long-term care, or permanent foster care, it is an immediately appealable order. The question now before this Court is, if at the initial “permanency planning hearing,” 1 the trial court ordered a concurrent permanency plan which provided ⁴⁰⁵ for the pursuit of both reunification and adoption, whether that order establishing the permanency plan is immediately appealable. 2 We hold that a concurrent permanency plan ordered at the time of the permanency planning hearing and which provides for both reunification and adoption is an appealable interlocutory order. 3 In March 2004, brothers, Karl H. Jr. and Anthony H. were placed in the temporary care and custody of the Charles County Department of Social Services (CCDSS) for shelter care placement. On May 7, 2004, Karl H., Sr. (“Petitioner”) and his wife, Lisa H., the parents of Karl H. Jr. and Anthony H., consented to a finding that their sons were CINA. 4 On December 10, 2004, the Circuit Court for Charles County ⁴⁰⁶ approved concurrent permanency plans for adoption by a non-relative or reunification with Karl H., Sr. and Lisa H. 5 In January 2005, each parent separately filed a timely appeal to the Court of Special Appeals on the grounds that the juvenile court abused it discretion, under the circumstances, in adopting the plans of reunification concurrent with adoption. The Court of Special Appeals held that the orders establishing concurrent permanency plans of reunification and adoption were neither final judgments nor appealable interlocutory orders and dismissed the appeal.

In re Karl H. and Anthony H., 163 Md.App. 536, 540-41 , 881 A.2d 1174, 1177 (2005). 6 Petitioner filed a petition for a writ of certiorari in this Court, which we granted. In re Karl H., 390 Md. 90 , 887 A.2d 655 (2005). 7 The issue we must decide is whether the Court of Special Appeals erred in holding that a concurrent permanency plan that includes adoption is not an appealable interlocutory order. We vacate the judgment of the Court of Special Appeals and remand the case to that court for further proceedings. I. FACTS AND PROCEDURAL HISTORY We adopt the facts as summarized by the Court of Special Appeals: Karl Jr., [born in 1998], and his brother, Anthony, [born in 1999], are the children of [Petitioner] and [his wife,] Lisa H. The [Petitioner and his] family came to the attention of the Charles County Department of Social Services ⁴⁰⁷ (“CCDSS”) on March 5, 2004, when the boys were five and three, respectively, because the [family] ... w[as] homeless and living [in] ... their vehicle.

The CCDSS caseworker assigned to the family[,] enabled them to use the agency’s shower and laundry at that time. After the family moved into [a] ... [m]otel, CCDSS paid their back rent and provided vouchers for an additional week’s rent. On March 25, 2004, a family friend reported to CCDSS that Mrs. H. had dropped the boys off at her home the preceding day, but had failed to return for them. That day, the family’s caseworker spoke with Mrs. H., who explained that she had separated from [Petitioner], and had obtained a protective order against him, which prohibited contact between him and either herself or the boys.

Mrs. H. stated that she could not care for the boys at that time. [Petitioner] met with the caseworker the next day and confirmed the existence of the protective order. He also informed the caseworker that in the past he had been convicted of ... domestic violence against Ms. H [and previously served time in prison on a murder conviction]. [Petitioner] admitted to a history of substance abuse and [stated] ... that he had relapsed, having used crack cocaine the previous evening. The boys were ... placed in emergency shelter care, and the Circuit Court for Charles County, sitting as a juvenile court, continued shelter care on March 29, 2004.[ 8 ] The juvenile court ordered [Petitioner] and Mrs. H. to participate in psychological and substance abuse evaluations, and to follow up with any treatment recommendations. [Petitioner] subsequently made an appointment to register for ⁴⁰⁸ substance abuse treatment, but he did not arrive at the appointed time. Adjudicatory and disposition hearings were held on May 7, 2004, during which [Petitioner] and Mrs. H. consented to a finding that the boys were CIÑA.

The juvenile court again ordered both parents to participate in substance abuse and mental health evaluations, including an assessment of both parents’ mental capacity to care for their children, and to follow up with any treatment recommendations. In addition, the juvenile court ordered that [Petitioner] and Mrs. H. submit weekly to urinalys[i]s. Over the next six months, [Petitioner] and Mrs. H. failed to make significant progress toward addressing their substance abuse and mental health issues. In November 2004, however, [Petitioner] and Mrs. H. enrolled in an eighteen-month Crisis Watch and Counseling program at the New Life Advocacy Council, which provided substance abuse counseling and parenting skills training. [Both parents also had scheduled weekly supervised visits with the children, in which Petitioner visited the children regularly.

Mrs. H’s visits, however, were sporadic.] On December 10, 2004, the juvenile court conducted an initial permanency planning hearing for both boys. At the time of the hearing, the boys remained in the foster home in which they had been placed in March, and appeared to have adjusted well, having made friends in the community and at school. The juvenile court concluded that [Petitioner] and Mrs. H. were not yet able to care for their children at that time, as they still had “serious issues of their own” that had yet to be addressed. Accordingly, the juvenile court ordered a concurrent plan of reunification and adoption for the boys.

In re Karl H., 163 Md.App. at 539-40 , 881 A.2d at 1175-76 (alterations added). At the December 10, 2004, permanency plan hearing the trial judge concluded: ⁴⁰⁹ I find that continued placement is certainly necessary and appropriate. I do find that the parents at this time are not able to care for the children. They have serious issues of their own that they must address....

I hope that they ... can get their lives straight. # ^ I don’t believe ... the children can wait, I’m going to order the plan be adoption but it’s also going to be concurrent with reunification because I want the parents to be afforded all the services for reunification. I want that, basically we’re going to ... it’s going to be a race, to both concurrent plan, [sic] And I want the parents to work toward reunification. * * * * H* * [W]e will schedule this matter for review on June the 17th of 2005 or earlier if another issue needs to be addressed sooner. And unless the petition for guardianship is granted. Two identical permanency plans were adopted as a result of the December 10, 2004 hearing, one pertained to Karl Jr. and the other to Anthony.

In the plans, the court found that: [t]he Respondent’s permanency plan is Reunification with his parents[,] concurrent with [a]doption, because the following compelling reasons exist making return home not in the Respondent’s best interests: Mr. and Mrs. H have not completed the court ordered recommendations. $ :{c $ $ ORDERED, that the permanency plan is a concurrent plan of [a]doption and Reunification with his parents; and it is further Hi Hs * * * * ORDERED, that a petition for termination of parental rights be filed within 30 days;[ 9 ] and it is further ⁴¹⁰ ORDERED, that this matter shall be set for a permanency plan review hearing on June 17, 2005, at 9:30 a.m..... At the permanency plan hearing the court ordered the CCDSS to file a termination of parental rights (“TPR”) petition within 30 days after the hearing. The department did not file the petition until April 5, 2005, almost four months after the December 10, 2004, court hearing. See Id. at 544 n. 6, 881 A.2d at 1179 n. 6.

Mootness In April 2006, in a joint motion, both Respondents requested that this Court dismiss Petitioner’s appeal as moot. In March 2006, prior to oral argument in this Court in the present case, the Circuit Court terminated Petitioner’s parental rights as a result of a judgment for guardianship with right to consent to adoption and/or long term care. Petitioner appealed the termination of parental rights. As of the filing of this opinion, an appeal of that order is pending in the Court of Special Appeals. 10 Respondents argue that there is no longer an existing controversy and it would not be appropriate to resolve the issue presented; therefore, the petition should be dismissed.

Conversely, Petitioner contends that, even if moot, the issue would easily evade appellate review, would likely recur, and this Court has the discretion to review moot cases that involve questions of public importance. We have previously stated that, “[gjenerally, appellate courts do not decide ... moot questions. A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” Att’y Gen. v. Anne Arundel County Sch. Bus Contractors Ass’n, Inc., 286 Md. 324, 327 , 407 A.2d 749, 752 (1979) This Court was confronted with a similar issue in another child in need of assistance (“CIÑA”) case, In re Justin D., 357 ⁴¹¹ Md. 431, 444-45, 745 A.2d 408, 415-16 (2000).

That case involved the validity of orders that appeared to give the Department of Social Services (“DSS”) unfettered discretion to determine the child’s visitation schedule. We recognized, in that case, that “[w]ith periodic six-month reviews, orders of this kind that are appealed ... [could] be replaced by subsequent orders before this Court w[ould] have the opportunity to review them.” Id. at 444 , 745 A.2d at 415 . Although we rarely review moot issues of law, under circumstances such as this, where an issue may perpetually evade review, we are inclined to review moot questions of law: “ ‘[I]f the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision, then the Court may find justification for deciding the issues raised by a question which has become moot, particularly if all these factors concur with sufficient weight.’ ” Id. at 444-45 , 745 A.2d at 416 (quoting Lloyd v. Bd. of Supervisors of Elections of Baltimore County, 206 Md. 36, 43 , 111 A.2d 379, 382 (1954)). In the present case, because the order would subsequently be replaced by another order and evade review and the appeal of the termination of parental rights is pending in the Court of Special Appeals, we will review the issue raised in this case.

Standard of Review The question of whether a concurrent permanency plan order which provides for both adoption and reunification is an appealable interlocutory order is an issue of law, which we will review de novo. See Walter v. Gunter, 367 Md. 386, 391-92 , 788 A.2d 609, 612 (2002) (“[Wjhere the order involves an interpretation and application of Maryland statutory and case law, [we] must determine whether the lower court’s conclusions are ‘legally correct’ under a de novo standard of re ⁴¹² view.”) (citation omitted); Register of Wills for Baltimore County v. Arrowsmith, 365 Md. 237, 249 , 778 A.2d 364, 371 (2001) (“[A]s is consistent with our review for all questions of law, we review the order and judgment de novo”) (citation omitted).

II

ANALYSIS Petitioner argues that the Court of Special Appeals erred when it held that Petitioner would not be detrimentally affected by the trial judge’s concurrent permanency plan orders because reunification efforts were not terminated. Petitioner asserts that even if reunification efforts were continued during the pendency of the proceedings, the order required the filing of a termination of parental rights petition within thirty days (sixty days if the local department does not support the plan of adoption), which could lead to Petitioner’s loss of custody. Petitioner contends that the concurrent plan of reunification and adoption was detrimental to him, depriving him of the expectation or hope of reunification; therefore, adoption of the plan was an appealable interlocutory order. Further, Petitioner maintains that although the Court of Special Appeals based its holding on In re Billy W., 386 Md. 675 , 874 A.2d 423 (2005), that case is distinguishable from Petitioner’s case.

According to Petitioner, in the In re Billy W., case, infra, the mother appealed because the trial court “fail[ed] to revise the permanency plan and return the child to her custodyt;]” however, in Petitioner’s case, he argues, that the terms of the permanency plan did not benefit him, quite the opposite, the terms were detrimental to him and deprived him of his rights to raise his own children. Respondent, CCDSS, contends that the permanency plan did not adversely affect the Petitioner’s custody rights. CCDSS asserts that a concurrent plan provides hope to a parent that he or she may regain custody, whereas, any expectation of reunification is extinguished with a reunification plan that is amended to a singular plan of adoption. Addition ⁴¹³ ally, CCDSS argues that since the initial plan (established by the court at the time of the permanency plan hearing) was a concurrent plan, the permanency plan order could not then effect any “change” in the permanency plan as required by In re, Damon M., supra.

Additionally, Respondents assert that the circuit court can rescind the permanency plan at any time before the TPR petition is granted. Respondent, Legal Aid Bureau, Inc., attorney for the children, argues that the trial court in its concurrent plan set forth a periodic review hearing approximately six months from the date of the permanency plan hearing. Therefore, Petitioner’s argument that any expectation of regaining custody of his sons was illusory. See § 3-823(h) of the Courts and Judicial Proceedings Article.

Respondent contends that CCDSS is permitted to make efforts toward concurrent goals and concurrent planning achieves the statutory objectives. See Md. Code (1999, 2004 Repl.Vol.), § 5-525(d)(l)-(3) of the Family Law Article. The Court of Special Appeals held that a concurrent permanency plan of reunification and adoption ordered at the time of the permanency plan hearing, was not an appealable interlocutory order, because it did not “operate to either deprive [a parent or parents] of the care and custody of [their] children or change the terms of ... care and custody of the children to [the parent’s or parents’s] detriment.” In re Karl H., 163 Md.App. at 543 , 881 A.2d at 1178 (quoting In re Billy W., 386 Md. at 691-92 , 874 A.2d at 423 ) (alterations added). The Court of Special Appeals reasoned: We are persuaded that this case is analogous to In re Billy W., because the orders adopting a concurrent permanency plan of reunification and adoption here did not detrimentally affect [Petitioner’s] ... custody rights.

Like the mother’s rights in In re Billy W., [Petitioner’s] ... custody rights were abrogated when Karl, Jr. and Anthony were adjudicated CIÑA and committed to CCDSS’s custody, but not when the juvenile court adopted the concurrent permanency ⁴¹⁴ plans.[ 11 ] H« ^ Hi ^ H< After the court ordered concurrent plans of reunification and adoption, CCDSS was required to file guardianship petitions for both Karl, Jr. and Anthony, pursuant to CJP section 3 — 823(g)(1). Hi Hi Hi Hi Hi Hi Practically, this “dual-track” planning makes sense. If future events and circumstances demonstrate that adoption, and not reunification, is in the best interests of Karl, Jr. and Anthony, the earlier steps taken by CCDSS should hasten the goal of achieving a positive and stable home for the children. In re Karl H., 163 Md.App. at 543-45 , 881 A.2d at 1178-79 (citations omitted) (footnotes omitted) (alterations added).

A Parent’s Fundamental Right Parents have a fundamental and constitutional right to raise their children. See In re Samone H. & Marchay E., 385 Md. 282, 299-301 , 869 A.2d 370, 380-81 (2005) (and cases cited therein). We acknowledge that “Maryland has ... echoed the Supreme Court, declaring a parent’s liberty interest in raising a child a fundamental one that cannot be taken away unless clearly justified.” In re Yve S., 373 Md. 551, 567 , 819 A.2d 1030, 1039 (2003) (citations omitted). ⁴¹⁵ The Court has recognized the fundamental rights which parents possess: The United States Supreme Court has long recognized that a parent has a constitutionally protected fundamental right to raise his or her children. Recently, ... we iterated this principle and stated that a parent’s interest “occupies a unique place in our legal culture, given the centrality of family life as the focus for personal meaning and responsibility. ‘[Far] more precious ... than property rights,’ parental rights have been deemed to be among those ‘essential to the orderly pursuit of happiness by free men....’” In In re Mark M., we explained that a parent’s fundamental right to make decisions concerning the care, custody, and control of his or her children is not absolute.

We said: That fundamental interest, however, is not absolute and does not exclude other important considerations. Pursuant to the doctrine of parens patriae, the State of Maryland has an interest in caring for those, such as minors, who cannot care for themselves. We have held that “the best interests of the child may take precedence over the parent’s liberty interest in the course of a custody, visitation, or adoption dispute.” That which will best promote the child’s welfare becomes particularly consequential where the interests of a child are in jeopardy, as is often the case in situations involving sexual, physical, or emotional abuse by a parent. We have recognized that in cases where abuse or neglect is evidenced, particularly in a CIÑA case, the court’s role is necessarily more pro-active.

See In re Justin D., [ 357 Md. 431, 448 , 745 A.2d 408, 417 (2000)]. A trial court, acting under the State’s parens patriae authority, is in the unique position to marshal the applicable facts, assess the situation, and determine the correct means of fulfilling a child’s best interests. ⁴¹⁶ [In re Mark M., 365 Md. 687, 705-07 , 782 A.2d 332, 343-44 (2001).] In re Samone H., 385 Md. at 299-301 , 869 A.2d at 380-81 (alterations in original) (alterations added) (citations omitted). We recently stated that “ ‘the best interests of the child may take precedence over the parent’s liberty interest in the course of a custody, visitation, or adoption dispute.’ ” In re Billy W., 386 Md. at 684 , 874 A.2d at 429 (quoting Boswell v. Boswell, 352 Md. 204, 219 , 721 A.2d 662, 669 (1998) (citations omitted)). A State’s role in a child’s care and protection should take on utmost importance, while a parent’s right may not be absolute.

A parent’s rights may be diminished, “[w]hen there is a conflict between the rights of the parents or legal guardian and those of the child, the child’s best interest shall take precedence.” COMAR 07.02.11.07(A). Permanency Plan When a child declared a CINA is removed from his or her home and placed in the temporary custody of the State, several steps must be taken to guarantee the child and his or her parents their due process rights. Md.Code (1974, 2004 RepLVol.), § 3-802 of the Courts and Judicial Proceedings Article. There must be an adjudicatory and disposition hearing to determine whether the child is a CINA.

See generally Md.Code (1974, 2004 RepLVol.), § 3-819 of the Courts and Judicial Proceedings Article. If declared CINA, then several family services are implemented such as housing, visitation, mental and physical assessments, parental courses, psychological therapy, drug rehabilitation, and educational services for the family. Id. Within eleven months, a permanency plan hearing must be held which sets a course towards securing a long-term goal for the CINA.

The implementation of a 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 ⁴¹⁷ 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. 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 [there is compliance]. In re Damon M., 362 Md. at 436 , 765 A.2d at 627-28 (alteration added). A trial court has several alternatives when determining the long term goals for a CINA, such as, reunification with parents, living with or adoption by relatives, independent living, foster care, or adoption by non-relatives. 12 The court’s goal should be, if possible, to reunite a child with its family.

In situations, however, where reunification may not be possible, a permanency plan with either concurrent or single long-term placement goals may be considered: (d)(1) ... [Reasonable efforts shall be made to preserve and reunify families: (i) 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 ⁴¹⁸ (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. (3) Reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with the reasonable efforts described under paragraph (1) of this subsection. (4) If continuation of reasonable efforts to reunify the child with the child’s parents or guardian is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan and to complete the steps to finalize the permanent placement of the child.

Section 5 — 525(d)(1)—(4) of the Family Law Article. Concurrent Permanency Plan The county DSS may consider implementation of a concurrent permanency plan, which authorizes a trial judge to expedite the adoption process for a child awaiting a permanent home. 13 DSS is encouraged to execute a concurrent permanency plan that provides a variety of proposals that would secure a permanent and secure home for a CINA. 14 ⁴¹⁹ In 1998, Maryland began to implement Congress’s Adoption and Safe Families Act of 1997 (“Act”), a comprehensive plan, ⁴²⁰ enacted to facilitate adoption of children in foster care. 15 See Pub.L. No. 105-89, 111 Stat. 2115 (codified as amended at 42 U.S.C. § 1305 note, noting that reasonable efforts shall be made to preserve and reunify children with their families while concurrently advancing reasonable efforts toward placing a child for adoption). The State’s failure to adopt the Act ⁴²¹ would have resulted in the loss of federal funding. As anticipated, implementation of the Act resulted in fiscal incentives. 16 The purpose of the Act 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.

Patton, supra note 15, at 174. Further, the presumption of the Act is that if reunification efforts fail the preferred result is adoption. Id. When the Maryland Legislature adopted the federal Act there was no discussion of whether expediting the termination of a parent’s rights would be in the best interest of a child.

The main focus of the Act was to accelerate the placement of foster children in adoptive homes. The relative pros and cons of concurrent permanency planning were neither discussed nor analyzed before the Act was adopted by the Legislature. The passage of the bill amended several sections of the Family Law Article, including § 5 — 525(b), which states that DSS shall establish a goal that facilitates reunification while concurrently generating and executing a concurrent permanency plan. Commentators, Patton and Pellman, have criticized concurrent permanency planning on the grounds that it is severally flawed for a number of reasons.

First, one may question whether termination of parental rights was required in a significant number of cases because: (1) the expedited decision to terminate parental rights is often made in six months, and sometimes without the necessity of providing family rehabilitation and reunification; (2) necessary social services are often not readily available so while the termination clock ticks away, little reunification is possi ⁴²² ble; (3) ... [and] (4) [DSS workers and legal counsel for the families are overloaded with work]; (5) the ultimate fact-finder, juvenile dependency judges, have only a few minutes per case to determine the fate of families---- Patton, supra, at 192. Although concurrent permanency planning is authorized in Maryland, we note that the practice of having such concurrent plans that provide for reunification or family placement and adoption should be scrutinized carefully by the court. It is important, however, to distinguish between contingency permanency planning and concurrent permanency plans. The former looks to reunification with parents or placement with family members while permitting the DSS to begin making contingency plans for adoption or other long-term care arrangements in the event the desired reunification or family placement proves not feasible or in the children’s best interest.

Indeed, in some cases, that may be the most prudent thing to do, so that if, when the permanency plan is next reviewed by the court, the court concludes that adoption or other long-term arrangement is appropriate, that goal can be achieved more expeditiously — some of the groundwork will already have been done. The statute clearly allows for such contingency planning. See § 5 — 525(d)(1)—(4), supra. The problem with concurrent permanency plans that are diametrically inconsistent is that they give DSS (and the parents) no real guidance and can lead to arbitrary decision-making on the part of DSS.

If the court approves a permanency plan that calls for reunification or family placement, that should be the paramount goal. It should not share the spotlight with a completely inconsistent court-approved goal of terminating parental rights, especially when the inconsistent plan calls for a TPR petition to be filed before the next scheduled court review of the permanency plan. The objective of contingency planning can be achieved without a Janus-type order. When a permanency plan for adoption, whether with a concurrent goal of reunification or adoption alone, is ordered, the statute requires the filing of a TPR petition: ⁴²³ (g) In the case of a child for whom the court determines that the plan should be changed to adoption ... the court shall: (1) Order the local department to file a petition for guardianship in accordance with Title 5, Subtitle 3 of the Family Law Article within 30 days or, if the local department does not support the plan, within 60 days; and (2) Schedule a TPR hearing instead of the next 6-month review hearing.

Section 3-823(g) (emphasis added). A natural parent’s or guardian’s rights are terminated as a result of an adoption. 17 See §§ 5-312 and 5-313 of the ⁴²⁴ Family Law Article. A child may not be adopted unless the natural parents or legal guardian consents (and if the child is at least 10 years old, the child’s consent) or a judicial proceeding terminates parental rights. Maryland Code (1999, 2004 Repl, Yol.), § 5-311(a) of the Family Law Article. 18 If a court terminates a parent’s rights for adoption or guardianship purposes, it does so only if it finds by clear and convincing evidence that it is in the best interest of the child involved. 19 Section 5-313(a) of the Family Law Article.

See Carroll County Dep’t of Social Svs. v. Edelmann, 320 Md. 150, 176 , 577 A.2d 14, 26 (1990) (“[A] circuit court has no authority to terminate a parental relationship other than through a decree of adoption or guardianship!)]”). An Appealable Interlocutory Order Generally, a party has the right to appeal from a final judgment. See Md.Code (1974, 2002 Repl.Vol.), § 12-301 of the Courts and Judicial Proceedings Article. There