In Re Yve S.

HARRELL, Judge. I. These combined cases arose initially from a determination by the District Court of Maryland, sitting in Montgomery County as the Juvenile Court, 1 to change the permanency plan for a twelve year-old child, Yve S., from the goal of reunification with her biological mother, Yvonne S., to one of long-term foster care. The Montgomery County Department of Health and Human Services (the “Department”) initiated the proceedings on 26 February 1997 by filing a petition with the District Court alleging that Yve S. was a Child in Need of Assistance (“CINA”). 2 On 10 June 1997, following three days of hearings, the juvenile court found Yve S. to be a CINA and committed her to the Department for foster care. After 13 months, on 31 July 1998, Yve S. was returned, temporarily as it turned out, to her mother, Yvonne S., under an Order for Protective Supervision.

Eleven days later, on 11 August 1998, the juvenile court held an emergency hearing and, again, placed Yve S. in the Department’s custody and returned her to foster care. ⁵⁵⁹ A little over 7 months later, in March of 1999, the juvenile court convened a permanency planning hearing for Yve S. At the end of four non-consecutive days of hearings, the court ordered, on 20 September 1999, that the goal of the permanency plan for Yve S. should be termination of parental rights (“TPR”) and adoption. On 20 March 2000, the court convened a permanency planning review that would spread over more than a year. By the time of a hearing on 20 October 2000, the Department advocated changing the permanency plan goal from TPR/adoption to reunification with the mother; however, the court declined to change the goal of the plan. The court held additional review hearings on 13 and 20 December 2000, 15 and 16 February 2001, and 28 March 2001.

On 28 March 2001, at the conclusion of the last day of the hearing process that had begun the previous March, the court changed the permanency plan from TPR/adoption to long-term foster care. Yvonne S. noted a timely appeal to the Court of Special Appeals. On 8 November 2001, while Yvonne S.’s first appeal was pending in the Court of Special Appeals, the juvenile court convened another review hearing. 3 The juvenile court concluded that hearing on 20 December 2001, at which time it issued an order reaffirming the content of its 28 March 2001 order. Yvonne S. noted a second appeal.

On 23 January 2002, the Court of Special Appeals filed an unreported opinion in the first appeal affirming the juvenile court’s 28 March 2001 order, which had changed Yve S.’s permanency plan to long-term foster care. Yvonne S. filed a petition for writ of certiorari asking this Court to review that decision. Thereafter, Yvonne S. petitioned this Court to issue ⁵⁶⁰ a writ of certiorari to the Court of Special Appeals before it could decide her second appeal regarding the 20 December 2001 order of the juvenile court. On 8 May 2002, this Court granted both petitions and consolidated the cases.

In Re: Yve. S., 369 Md. 178 , 798 A.2d 551 (2002). Subsequently, on 20 April 2002 and 16 July 2002, the juvenile court — now the Circuit Court for Montgomery County (see n. 1 supra), but with the same judge sitting by special designation during calendar 2002 — held another review hearing in Yve S.’s case and entered a new order establishing permanent foster care as the goal of the permanency plan. Yvonne S. noted a third appeal to the Court of Special Appeals and shortly thereafter filed with regard to that appeal a petition for writ of certiorari with this Court.

On 22 August 2002, we granted that petition, In re Yve S., 370 Md. 268 , 805 A.2d 265 (2002), and transferred the appeal to our regular docket. Because the third appeal raised issues concerning the jurisdiction of the juvenile court to act while an appeal of its earlier order on the same subject matter was pending, it was not consolidated with the earlier cases, but was briefed separately. All of the cases, however, were argued on the same day. We shall decide all issues raised with this single opinion.

II

Issues Petitioner, Yvonne S., presents the following questions for our consideration, which we rephrase as follows: 1. Does the fact that a parent has a mental illness that is being successfully managed nevertheless provide a “compelling reason” to deny reunification and instead adopt a permanency plan of long-term foster care? 2. Is it proper to allow a social worker to give her opinion as to the demeanor of the parent when the parent testified, and to give her opinion of the substance of the parent’s testimony? ⁵⁶¹ 3. Did the trial court err in refusing to recuse itself from further participation in this case? 4.

Whether the trial court erred in changing the permanency plan from long-term foster care to permanent foster care during the pendency of the appeal on the former determination?

III

Yve S. entered into the .Montgomery County foster care system in February of 1997, at the age of six, after the Department received reports that she was not being fed adequately and that she and her mother, Yvonne S., were homeless. Prior to this, Yvonne S. and Yve S. led a nomadic lifestyle. In 1990, they lived in Key West, Florida, where Yve S. was born. In 1991, they lived in Maryland; in 1992, they lived in Martinsburg, West Virginia.

In 1993, they lived in Millville, West Virginia, where Yve S. was first taken into foster care. In 1994, they moved to Gaithersburg, Maryland, and then to Westminister, Maryland, in 1995. In 1996, they moved to North Carolina. Finally, in 1997, they returned to Montgomery County.

Soon after Yve S. was placed in foster care in Montgomery County, the Department learned that Yvonne S. had been diagnosed with bipolar disorder and schizo-affective disorder, dating back to her teens. A psychiatric evaluation of Yve S. resulted in a diagnosis of “acute stress reaction,” chronic post-traumatic stress disorder, and dissociative disorder. Yve S. also displayed symptoms of possible physical and sexual abuse and, in July of 1997, alleged that she had been molested by a boyfriend of Yvonne S. Yvonne S. complied with the Department’s recommendations for mental health treatment and parenting classes. As a result, she and Yve S. were reunited in June of 1998.

In July 1998, the juvenile court approved Yvonne S.’s request to move to the Outer Banks of North Carolina, where she had leased a mobile home. Montgomery County, however, never initiated a home study nor completed a proper interstate compact for the ⁵⁶² Dare County, North Carolina, family welfare authorities to implement. After only a few days in North Carolina, the Dare County Department of Social Services found it necessary to remove Yve S. from Yvonne S.’s care. Yvonne S. had been evicted from the trailer, and allegedly had left Yve S. in the care of a “known sex offender,” though there is no record that this person’s status as such was known to Yvonne S. The Dare County Department placed Yve S. in emergency shelter care and then returned her to Montgomery County, where she was placed with a foster care family.

Yvonne S. remained in North Carolina for a time following Yve S.’s return to foster care in Maryland. During that time, in August 1998, she entered into a service agreement with the Montgomery County Department in which she agreed to obtain treatment for her mental illness and maintain stable housing and employment. Yvonne S.’s tenure in North Carolina concluded with a psychiatric hospitalization, after she stopped taking her medications. When she was discharged in late February 1999, she was given a two-week supply of her medications and a one-way bus ticket to Montgomery County.

In March, 1999, Yvonne S. began receiving mental health treatment at St. Luke’s Hospital in Montgomery County, under the care of Dr. James Harold, a psychiatrist, and also began having visitation with Yve S. on a regular basis With further assistance from the therapists and social workers at St. Luke’s, as well as guidance and support from her church community, Yvonne S. stabilized, became employed, and established a home. In June 1999, she obtained a job at a local nursing home as a housekeeper. By the end of August 1999, Yvonne S. had advanced to the position of activities coordinator and had obtained her own apartment. By the summer of 2000, Yvonne S. had maintained the same job and apartment for more than a year.

She consistently attended her treatment at St. Luke’s. By the end of that summer, Yvonne S. was having weekend-long visits with Yve S., and, in light of Yvonne S.’s apparent stability, the Department advocated that the permanency plan for Yve S., which ⁵⁶³ previously had been “TPR/adoption,” be changed to “reunification” with her mother. In a letter to the juvenile court, dated 26 September 2000, the foster parents made a plea for the court to reject the Department’s recommendation for reunification, arguing that Yvonne S., with her mental illness, could not raise a child with Yve S.’s needs. At a review hearing held on 20 October 2000, the court distributed copies of this letter to the parties, and shortly thereafter, the Department changed its position from reunifying Yve S. with her mother to one of placing Yve S. in long term foster care with the foster parents.

On 20 December 2000, 15 and 16 February 2001, and 28 March 2001, the juvenile court conducted the permanency planning hearing required by statute. 4 Only a few days before her testimony in this important hearing, Yvonne S. lost her job at the nursing home. Despite the fact that she also was working part-time as a pet sitter, doing housecleaning for hire, and volunteering at a woman’s homeless shelter at the time of the hearing, she was understandably nervous during her testimony. On the Sunday prior to the 28 March 2001 hearing, Yvonne S. and Yve S. drove from Yvonne S.’s home in Gaithersburg to Bethesda to tour the grounds of the Bethesda Naval Hospital, so that Yve S. could see a particular statue deemed pertinent to her heritage. They then traveled to Rockville for a 10:00 a.m. church service, which they attended with a woman whom Yvonne S. had met while working at the homeless shelter during the preceding week.

This level of activity was viewed as extraordinary by the Department’s assigned social worker, Ms. Carolyn Rose. Ms. Rose testified, over objection, to that effect, and that, in her view, that level of activity, combined with Yvonne S.’s nervousness on the witness stand, indicated to her the imminent onset of a manic episode on the part of Yvonne S. Despite testimony by the treating psychiatrist, Dr. Harold, that a manic episode was not imminent, Ms. Rose, immediately following the 16 February ⁵⁶⁴ 2001 hearing, reduced the visitation from weekend-long visits to one hour of supervised visitation, later increased to a few hours once a week. On 28 March 2001, the juvenile judge ordered that the permanency plan pursue long term foster care as its goal. The hearing judge affirmed her permanency plan determination at the conclusion of another review hearing on 20 December 2001, despite testimony that Ms. Rose’s forecast of a manic episode had failed to materialize, Yvonne S. was employed making a higher income than before, and all visitation had gone well.

Similarly, the Department, through Ms. Rose, continued to refuse to return visitation to its prior frequency and duration. The plan goal became permanent foster care by virtue of the court’s 16 July 2002 order. Additional facts will be supplied as appropriate to our discussion of each issue. IY.

From time to time we confront cases which present issues which merit even more extensive discussion of the legal principles involved than flows from our normal close attention of each case. Sometimes this is because of the highly technical or complex nature of the case. Other times it is because of the fundamental nature of the rights and responsibilities of the parties involved. The present case is situated on the frontier of what State action may be permissible in the face of fundamental rights possessed by its citizens, 5 and involves ⁵⁶⁵ standards which, while their names suggest intuitive definitions and means of application, are in fact highly technical and complex in nature, and contain well established elements which are not as self-evident in application as their titles suggest.

The fundamental doctrinal problem presented by this case is the proper definition and application of the “best interest of the child” standard. The problem arises in large part because the name of the standard itself invites an “intuitive” understanding which, upon examination, bears little resemblance to how the standard has been defined by our cases. The standard does not require simply that a determination be made that one environment or set of circumstances is superior to another. If that were the case, child custody matters would involve relatively simple choices.

Although much of what we include in this opinion is derivative, there is value in massing it in this appropriate case. A. THE FUNDAMENTAL RIGHTS OF A PARENT The proper starting point for legal analysis when the State involves itself in family relations is the fundamental constitutional rights of a parent. Certain fundamental rights are protected under the U.S. Constitution, and among those rights are a parent’s Fourteenth Amendment 6 liberty interest in raising his or her children as he or she sees fit, without undue interference by the State. The rights and protections afforded a parent, as recognized by the United States Supreme Court, were gathered recently in the well researched ⁵⁶⁶ opinion of Wolinski v. Browneller, 115 Md.App. 285 , 693 A.2d 30 (1997), from which we shall quote at length.

Beginning with Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923) and Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925), the Supreme Court, in a variety of contexts, has recognized that freedom of personal choice in matters of marriage, family life, and the upbringing of children is a liberty interest protected by the Fourteenth Amendment. See M.L.B v. S.L.J., U.S. LEXIS, [ 519 U.S. 102 ] 117 S.Ct. 555 , 136 L.Ed.2d 473 (Dec. 16, 1996) (termination of parental rights); Santosky v. Kramer, 455 U.S. 745 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982) (same); Parham v. J.R., 442 U.S. 584 , 99 S.Ct. 2493 , 61 L.Ed.2d 101 (1979) (right to care for mental health of child); Moore v. City of East Cleveland, 431 U.S. 494 , 97 S.Ct. 1932 , 52 L.Ed.2d 531 (1977) (right of extended family to live together); Wisconsin v. Yoder, 406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972) (right to direct children’s education, coupled with right to freedom of religion); Stanley v. Illinois, 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972) (right to raise children); Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438 , 88 L.Ed. 645 (1944) (right to allow child to work); Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925) (right to direct upbringing and education of children); Meyer, 262 U.S. 390, 399 , 43 S.Ct. 625 , 67 L.Ed. 1042 (announcing the liberty interest “to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home, and bring up children”). Within the narrower context of the parent-child relationship, the Supreme Court has deemed the right to rear a child “essential,” id, and encompassed within a parent’s “basic civil rights.” Skinner v. Oklahoma, 316 U.S. 535, 541 , 62 S.Ct. 1110 , 86 L.Ed. 1655 (1942). Maryland has consistently 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 Adoption/Guardianship No. 10941, 335 Md. 99,112 , 642 A.2d 201 ⁵⁶⁷ (1994); In re Adoption/Guardianship Nos. CAA92-10852 & CAA92-10853, 103 Md.App. 1, 12 , 651 A.2d 891 (1994) (“This right is in the nature of a liberty interest that has long been recognized and protected under the state and federal constitutions.”)- In In re Adoption/Guardianship No. 10941, the Court of Appeals quoted with approval from Justice Blackmun’s dissent in Lassiter v. Department of Social Sews., 452 U.S. 18 , 101 S.Ct. 2153 , 68 L.Ed.2d 640 (1981): At stake here is “the interest of a parent in the companionship, care, custody, and management of his or her children.” This 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 ... ”. Id. at 38 [, 101 S.Ct. 2153 ] (citations omitted), quoted in In re Adoption/Guardianship No. 10941, 335 Md. at 113 [, 642 A.2d 201 ]. See also In re Adoption/Guardianship No. 93321055/CAD, 344 Md. 458, 491 , 687 A.2d 681 (1997); In re: Matthew R., 113 Md.App. 701, 721 , 688 A.2d 955 (1997); Coffey v. Dep’t of Social Servs., 41 Md.App. 340, 357 , 397 A.2d 233 (1979). 115 Md.App. at 298-99 , 693 A.2d at 36 (some internal citations omitted). We recently reiterated the importance of these constitutional protections of parental interests in In re Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md. 666 , 796 A.2d 778 (2002), where we pointed out that: Most recently, in In re Mark M., 365 Md. 687, 705 , 782 A.2d 332, 342-43 (2001), this Court reiterated the notion of parenting as a fundamental right: “A parent’s interest in raising a child is, no doubt, a fundamental right, recognized by the United States Supreme Court and this Court.

The United States Supreme Court has long avowed the basic civil right encompassed by child rearing and family life. See Troxel v. Granville, 530 U.S. 57 . 66. 120 S.Ct. 2054 . 2060. 147 L.Ed.2d 49 . 57 ⁵⁶⁸ (2000)(stating that ‘the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children’); See also Santosky v. Kramer, 455 U.S. 745, 753 , 102 S.Ct. 1388, 1394-95 , 71 L.Ed.2d 599, 606 (1982) (discussing ‘the fundamental liberty interest of natural parents in the care, custody, and management of their child’); Stanley v. Illinois, 405 U.S. 645, 651 , 92 S.Ct. 1208, 1212-13 , 31 L.Ed.2d 551, 558-59 (1972) (stating that ‘the rights to conceive and to raise one’s children have been deemed “essential,” ’ and that ‘the integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment ... the Equal Protection Clause of the Fourteenth Amendment ... and the Ninth Amendment ...” (internal citations omitted)). Maryland, too, has declared a parent’s interest in raising a child to be so fundamental that it ‘cannot be taken away unless clearly justified.’ Boswell v. Boswell, 352 Md. 204, 218 , 721 A.2d 662, 669 (1998) (citing In re Adoption//Guardianship] No. 10941, 335 Md. 99, 112 , 642 A.2d 201 (1994)).” 368 Md. at 671 , 796 A.2d at 780-81 ; see also Shurupoff v. Vockroth, 372 Md. 639, 649-50 , 814 A.2d 543, 550 (2003). 7 B. THE BEST INTEREST OF THE CHILD The rights of a parent in the raising of his or her children, however, are not absolute. One need not wander far into the thickets of family law before running into 'situations and circumstances where application of an absolute right of the parent would fail to produce a just result.

Divorce is perhaps the most obvious situation. Where two parents have equal constitutional rights as parents, and both are exercising those rights to opposing ends, what is to become of the child or children involved? What are the child’s rights in such a ⁵⁶⁹ situation, and by what standard is a court to avail itself in order both to uphold the rights of the parents while reaching an outcome society finds acceptable for the blameless offspring? Further, in a variety of situations, such as the one sub judice, a court must ask to what extent the State has an interest in the child as parens patriae — a corollary of the State’s interest in protecting the health, safety, and welfare of its citizenry.

Again, quoting extensively from Wolinski : The Supreme Court has emphasized, however, that “rights of parenthood are [not] beyond limitation,” and that the “state has a wide range of power for limiting parental freedom and authority in things affecting a child’s welfare ....”. Thus, a parent’s right to direct his or her child’s upbringing is not absolute. Rather, Due Process analysis requires the delicate balancing of all of the competing interests involved in the litigation. In the context of most family law disputes over children, the State’s interest is to protect the child’s best interests as parens patriae — & derivation of the State’s interest in protecting the health, safety, and welfare of its citizenry.

The importance of those State interests that successfully override parental autonomy in raising children is determined by the nature of the individual liberty interests upon which the State laws or regulations impinge. A regulation or law significantly curtailing a fundamental right must undergo strict scrutiny — it must be narrowly tailored to serve a compelling public interest. Restrictions upon rights not deemed fundamental need only be rationally related to some purpose within the competency of the State. Finally, there are those restrictions upon rights deemed “substantial,” though not fundamental, that must undergo intermediate-level scrutiny — governmental interference is sanctioned only when the interference is supported by a substantial governmental interest.

As noted above, the State’s interest in all custody, adoption, and visitation disputes is to protect the best interests of the child caught in the middle of the fight. The Court of Appeals has often reaffirmed that this interest takes precedence over the fundamental right of a parent to raise his or ⁵⁷⁰ her child. The courts have said time and again that the best interest standard is dispositive in custody awards. In the context of adoption cases, the Court of Appeals has labeled “compelling” the State’s interest in securing permanent homes for children placed into its custody because of an inability or unwillingness of their parents to care for them properly. 115 Md.App. at 300-02 , 693 A.2d at 37-38 (internal citations omitted).

In the case of In re Mark M., 365 Md. 687 , 782 A.2d 332 (2001), this Court recently reiterated these considerations: That fundamental interest [in rasing a child], 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. As we stated in In re Adoption/Guardianship No. A91-71A 334 Md. 538 , 640 A.2d 1085 (1994), the child’s welfare is “a consideration that is of ‘transcendent importance’ ” when the child might otherwise be in jeopardy.

Id. at 561 , 640 A.2d at 1096 (citation omitted). Therefore, visitation may be restricted or even denied when the child’s health or welfare is threatened. We have recognized that in cases where abuse or neglect is evidenced, particularly in a CINA case, the court’s role is necessarily more pro-active. In fact, whereas the standard for denying parental visitation is generally quite strict — i.e. “it would only be in an exceptional case and under extraordinary circumstances that the right of visitation will be denied” (see Boswell v. Boswell, 352 Md. at 220 , 721 A.2d at 670 (1998))(stating that “visitation rights ... are not to be denied even to an errant parent unless the best interest of ⁵⁷¹ the child would be endangered by such contact”)(quoting Roberts v. Roberts, 35 Md.App. 497, 507, 371 A.2d 689, 694 (1977)) — in cases where evidence of abuse exists, courts are required by statute to deny custody or unsupervised visitation unless the court makes a specific finding that there is no likelihood of further child abuse or neglect.

See Maryland Code, § 9-101 of the Family Law Article (1984, 1999 Repl.Vol.). 8 Thus, courts have a higher degree of responsibility where abuse is proven. 365 Md at 705-06, 782 A.2d at 342-43 (emphasis in original)(some internal citations omitted). The best interests of the child standard embraces a strong presumption that the child’s best interests are served by maintaining parental rights. See In Re: Adoption/Guardianship Nos. 19610/36 & J9711031, 368 Md. 666, 692-93 , 796 A.2d 778, 793 (2002). If it were otherwise, the most disadvantaged of our adult citizens always would be at greater risk of losing custody of their children than those more fortunate.

Id. 368 Md. at 673-74, 699-700 , 796 A.2d at 782-83, 797-98 . Those of our citizens coping with emotional or mental difficulties could be faced with such discrimination. As the Court of Special Appeals pointed out in In re: Barry E., 107 Md.App. 206 , 667 A.2d 931 (1995), the emotional or mental difficulties experienced by a parent are not sufficient reason for removing a child except in more extreme cases: 9 ⁵⁷² The fact that appellant has a mental or emotional problem and is less than a perfect parent or that the children may be happier with their foster parents is not a legitimate reason to remove them from a natural parent competent to care for them in favor of a stranger. 107 Md.App. at 220 , 667 A.2d at 938 . The Supreme Court placed its imprimatur on the presumption that parents act in the best interests of their children in Parham v. J.R., 442 U.S. 584 , 99 S.Ct. 2493 , 61 L.Ed.2d 101 (1979), noting that in most cases, “the child’s interest is inextricably linked with the parents’ interest in and obligation for the welfare and health of the child....” Id. 442 U.S. at 600 , 99 S.Ct. 2493 .

Explaining the basis for this conclusion, the Court stated: The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More importantly, historically, it has recognized that natural bonds of affection lead parents to act in the best interests of their children. Id. 442 U.S. at 602 , 99 S.Ct. 2493 . This presumption also is a well established principle of Maryland law.

As the Court of Special Appeals pointed out in Wolinski : Maryland has adopted, in termination of parental rights, adoption, and custody proceedings, a prima facie presumption that a child’s welfare will be best served in the care and custody of its parents rather than in the custody of others. That presumption is overcome if opposing parties show that the natural parent is unfit to have custody, or exceptional circumstances make parental custody detrimental to the best interests of the child. Wolinski, 115 Md.App. at 311 , 693 A.2d at 42-43 (internal citations omitted). In whatever context the best interest of the child is the applicable standard, the presumption exists, until rebutted, that it is in the child’s best interest to be placed with a parent. ⁵⁷³ C. THE RELATIONSHIP OF THE STATUTES AND THE COMMON LAW STANDARDS 1.

THE STATUES The fundamental right of parents to raise their offspring is not only well established in our common law traditions, but also in the relevant enactments of the federal and Maryland legislatures. Due to the prominent role of these statutes in the case sub judice, we shall include at length here the seminal dissertation on them found in In re: Adoption/Guardianship No. 10941, 335 Md. 99 , 642 A.2d 201 (1994), in which Judge Karwacki, writing for the Court, comprehensively addressed the state and federal statutory schemes. Judge Karwacki stated: The Maryland General Assembly has enacted a comprehensive statutory scheme to address those situations where a child is at risk because of his or her parents’ inability or unwillingness to care for him or her. Title 5 of the Family Law Article of the Maryland Code (1984, 1991 Repl.Vol.) (hereinafter “F.L.”) governs the custody, guardianship, adoption and general protection of children who because of abuse or neglect come within the purview of the Department of Human Resources.

This case involves the interplay between the child welfare statutes, F.L. § 5-501 et seq., under juvenile jurisdiction, and the adoption statutes, F.L. § 5-301 et seq., under equity jurisdiction. Subtitle 7 of Title 5 of the Family Law Article concerns the protection of children who have been abused or neglected by their biological parents. Pursuant to this subtitle, certain authority figures, such as health practitioners, police officers, educators and human service workers, are required to report cases of suspected abuse or neglect. F.L. § 5-704.

The local department of social services is then required to investigate such reports. F.L. § 5-706. Thereafter, in accordance with its findings and treatment plan, the local department is required to render appropriate services ⁵⁷⁴ in the best interests of the child, 2 including, when indicated, petitioning the juvenile court to commit the child to its care and custody. F.L. § 5-710(a).

If the juvenile court determines that the child is a child in need of assistance (CINA), 3 it has discretion to order that the child be committed to the local department “on terms that the court considers appropriate ... including designation of the type of facility where the child is to be accommodated, until custody ... is terminated with approval of the court” or the child turns 21 years old. Md.Code (1974, 1989 Repl.Vol.) § § 3-820(c)(1)(ii) and 3-825 of the Courts & Judicial Proceedings Article. Such out-of-home placement can include placement in a licensed foster home, F.L. § 5-525, or placement with relatives. 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 care drift” and resulted in the enactment by Congress of Public Law 96-272, the “Adoption Assistance and Child Welfare Act of 1980,” codified at 42 U.S.C. § § 670-679 (1988). One of the important purposes of this law was to eliminate foster care drift by requiring states to adopt ⁵⁷⁵ 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 payments. 42 U.S.C. § 671 (a)(16). The case plan must include a description of the home or institution into which the child is placed, a discussion of the appropriateness of the placement, and 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. 42 U.S.C. § 675 (1).

The state must also implement a case review system that provides for administrative review of the case plan at least every six months and judicial review no later than eighteen months after placement and periodically thereafter. 42 U.S.C. § 675 (5)(B) and (C). 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. 42 U.S.C. § 675 (5)(C). Maryland receives considerable federal funds pursuant to this Act. Accordingly, the Maryland General Assembly has enacted legislation to comply with the federal requirements.

Under Maryland’s statutory scheme, for those children committed to a local department of social services the department is required to develop and implement a permanency plan that is in the best interests of the child. F.L. § 5-525. In developing the permanency plan, the department is required to consider a statutory hierarchy of placement options in descending order of priority. F.L. § 5-525(c).

First and foremost, the department must consider returning the child to the child’s natural parents or guardians. F.L. § 5 — 525(c)(1). If reunification with the biological parents is not possible, the department must consider placing the child with relatives to whom adoption, guardianship, or care and ⁵⁷⁶ custody, in descending order of priority, are planned to be granted. F.L. § 5 — 525(c)(2).

If placement with relatives is not possible, then the department must consider adoption by a current foster parent or other approved adoptive family. F.L. § 5-525(c)(3). Only in exceptional situations as defined by rule or regulation is a child to be placed in long term foster care. F.L. § 5 — 525(c)(5).

If it is determined that reunification is not possible and that adoption is in the child’s best interests, the juvenile court lacks jurisdiction to finalize this plan. In re Darius A., 47 Md.App. 232, 235 , 422 A.2d 71, 72 (1980); see also F.L. § 1-201. Instead, unless the parents consent to the adoption of their child, the department is required to petition the circuit court for guardianship pursuant to F.L. § 5-313. If the circuit court finds by clear and convincing evidence, after considering the statutorily enumerated factors, that it is in the best interest of a child previously adjudicated a CINA for parental rights to be terminated, the circuit court has authority to grant the department’s petition for guardianship.

Such award carries with it the right- for the department to consent to the adoption of the child. F.L. § § 5-311 and 5-317(f). The overriding theme of both the federal and state legislation is that a child should have permanency in his or her life. The valid premise is that it is in a child’s best interest to be placed in a permanent home and to spend as little time as possible in foster care.

Thus, Title 5 of the Family Law Article seeks to prevent the need for removal of a child from its home, to return a child to its home when possible, and where returning home is not possible, to place the child in another permanent placement that has legal status. 335 Md. at 103-06 , 642 A.2d at 203-05 . 2. THE ROLE OF AND REQUIREMENTS ON THE TRIAL COURT We explained the role of and requirements on trial courts in applying Subtitle 8 of Maryland’s Family Law Article in our opinion in In re: Damon M., pointing out that: ⁵⁷⁷ Prior to 1998, the responsibility lor developing a permanency plan for a child in foster care was entrusted to the local department of social services. Md.Code (1984, 1991 Repl. Vol., 1995 Cum.Supp.) § 5-525(c) of the Family Law Article.

Before 1996, a plan developed by the local department was reviewed by the court, together with the report and recommendation of the Foster Care Review Board, as a part of the disposition review hearing the court was required to conduct. Md.Code (1984, 1991 Repl.Vol.) § 5-544(3) of the Family Law Article. As a result of the amendment of the Juvenile Causes Act in 1996, see Ch. 595, Laws of 1996, the juvenile court was mandated to “hold a hearing to review the implementation of a permanency plan” for each child in foster care within 10 months of the disposition hearing in which the CINA finding was made. Md.Code (1996, 1997 Cum.Supp.) § 3-826.1 of the Courts and Judicial Proceedings Article.

It is of interest to note that the statute provided that if the child was to be “continued in placement for a specified period,” then the court would have to determine “the extent of compliance with the permanency plan.” § 3-826.1(d). The subsequent amendment to § 3-826.1, see ch. 539, Laws of 1998, to make it conform with the Federal Adoption and Safe Families Act of 1997 effected a significant change. Now, the court has the responsibility for determining the permanency plan, § 3-826.1(a)(1) and justifying the placement of children in out of home placements for a specified period or on a long-term or permanent basis, § 3-826.1(d), in addition to conducting periodic, six month review’s. § 3-826.1(f). In re: Damon M., 362 Md. at 430-3.1 n. 1, 765 A.2d 624 n. 1 .

We continued, explaining that: Section 3-826.1, [now codified as § 3-823] 10 requires the court, not later than 11 months after a child found to be in ⁵⁸⁰ need of assistance has been placed in foster care, see also Md.Code (1989,1991 Repl.Vol., 1997 Cum.Supp.) § 5-501(m) of the Family Law Article, to hold a permanency planning hearing to determine the permanency plan for that child. § 3-826.1(a)(1) [now § 3-823(b)(1) ]. At that hearing, for each child in placement and in determining the plan, the court is required to make certain decisions and findings, § 3-826.1(c), [now § 3-823(e) ] specifically, whether the child should be: returned to the parent or guardian, § 3-826.1(c)(1)(i) [now § 3 — 823(e)(1)(i) ]; placed with relatives to whom adoption or guardianship is granted, § 3-826.1(c)(1)(ii) [now § 3 — 823(e)(1)(ii) ]; placed for adoption, § 3 — 826.1(c)(1)(iii) [now § 2 — 823(e)(1)(iii) ]; emancipated, § 3-826.1(c)(1)(iv) [now deleted]; or because of the child’s special needs or circumstances, continued in placement on a permanent or long-term basis or for a specified period.” § 3-826.1(c)(1)(v) and (vi) [now § 3-823(e)(1)(v) and (vi) ]. There are restrictions on the court’s ability to continue a child in placement because of the child’s special needs or circumstances. § 3-826.1(d) [now § 3 — 823(f) ]. That section prohibits the court from using that option “unless it finds that the agency to which the child is committed has documented a compelling reason for determining that it would not be in the best interest of the child to: “(1) Return home; “(2) Be referred for termination of parental rights; or ⁵⁸¹ “(3) Be placed for adoption or guardianship with a specified and appropriate relative or legal guardian willing to care for the child.” Section 3-826.1 (f) [now § 3 — 823(h) ] mandates periodic reviews of the permanency plan by the court.

Subsection (f)(1)(i) [now § 3-823(h)(1)(i) ] provides that such reviews will be “no less frequently than every six months until commitment is rescinded.” If, however, at the permanency planning hearing or a subsequent review hearing, the court, inter alia, orders a child continued in permanent foster care, the court is no longer required to hold the review hearings at six month intervals. Subsection (f)(1)(ii) [now § 3-823(h)(1)(h), now revised to require review hearings every 12 months.]. As is true of the initial permanency planning hearing, the court must make some determinations at the hearing to review the permanency plan. § 3-826.1(0(2) [now § 3-823(h)(2) ]. Among other things, in addition to determining whether the commitment remains necessary and appropriate, subsection (f)(2)(i) [now § 3-823(h)(2)(i) ], and evaluating the progress made toward alleviating or mitigating the causes of the commitment, subsection (0(2)(iii) [now § 3 — 823(h)(2)(iii) ], the court is required to “determine the extent of compliance with the permanency plan,” subsection (0(2)(ii) [now § 3-823(h)(2)(ii) ], and to change it “if a change in the permanency plan would be in the child’s best interest.” Subsection (i)(2)(v) [now § 3-823(h)(2)(vi) ].

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 ⁵⁸² 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. It is true, of course, that a parent will have lost custody before a permanency plan will have been developed. Nevertheless, once determined, because the permanency plan sets out the anticipated permanent placement, to the achievement of which the “reasonable efforts,” required by § 3 — 826.1(f)(3) [now § 3 — 823(h)(3) ], must and will be directed, it can not be totally divorced from the issue and, in point of fact and in a real sense, actually is a part of it.

Moreover and in fact, when the plan is reunification, there necessarily is, on the part of the court and, certainly, the parent, an expectation — more than a hope — that the parent will regain custody. That is, after all, the point of the plan and the reasonable efforts, including the provision of services to the family, so necessary to achieving compliance. Id., 362 Md. at 435-37 , 765 A.2d at 627-28 . 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. ⁵⁸³ D. THE STANDARD OF REVIEW In In re: Damon M. we held that, despite their interlocutory nature, orders of court regarding permanency plans are immediately appealable. Id. 362 Md. at 438 , 765 A.2d at 628-29 . The appellate standard of review as to the overall determination of the hearing court is one of “abuse of discretion.” Because children and fundamental rights are at stake, and the fact that speed and stability are desirable where permanency plans are concerned, it is useful to discuss at some length what precisely “abuse of discretion” means in the context of review of a permanency plan order.

In In re Adoption/Guardianship No. 3598, 347 Md. 295 , 701 A.2d 110 (1997), we described “abuse of discretion” as follows: Judicial discretion was defined in Saltzgaver v. Saltzgaver, 182 Md. 624, 635 , 35 A.2d 810, 815 (1944) (quoting Bowers’ Judicial Discretion of Trial Courts at P 10) as “that power of decision exercised to the necessary end of awarding justice and based upon reason and law, but for which decision there is no special governing statute or rule.” It has also been defined as a “reasoned decision based on the weighing of various alternatives.” There is an abuse of discretion “where no reasonable person would take the view adopted by the [trial] court,” or when the court acts “without reference to any guiding rules or principles.” An abuse of discretion may also be found where the ruling under consideration is “clearly against the logic and effect of facts and inferences before the court,” or when the ruling is “volatile of fact and logic.” Questions within the discretion of the trial court are “much better decided by the trial judges than by appellate courts, and the decisions of such judges should only be disturbed where it is apparent that some serious error or abuse of discretion or autocratic action has occurred.” In sum, to be reversed “the decision under consideration has to be well removed from any center mark imagined by the reviewing ⁵⁸⁴ court and beyond the fringe of what that court deems minimally acceptable.” 347 Md. at 312-13 , 701 A.2d at 118-19 (some internal citations omitted). For cases involving the custody of children generally, our precedents establish a three part review of the decisions of the lower courts, addressing the findings of fact, conclusions at law, and the determination of the court as a whole. We set forth the rule for review of custody cases in Davis v. Davis, 280 Md. 119 , 372 A.2d 231 (1977), where we explained: Maryland Rule 886 (applicable to this Court) and, in identical language, Rule 1086 (applicable to the Court of Special Appeals) provide the standard of review of actions tried without a jury. 11 In such actions, the appellate courts of this State “review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” Rule 886 & 1086. The “clearly erroneous” concept is no newcomer to Maryland procedure: The predecessor of Rule 886 (adopted effective January 1, 1957 as Rule 886 a), General Rules of Practice and Procedure, Part Three, III, Rule 9 c (effective September 1, 1944), contained the same scope of review embodied in the present rule; moreover, prior to the standard’s codification as a rule, it was the time-honored practice on appeals to this Court in equity actions to give great weight to the chancellor’s findings of fact.

And we have heretofore noted that these rules in essence merely conformed the scope of review in nonjury actions at law to the scope of review we had always applied in equity appeals. Nothing in Rule 886 indicates that it does not apply to all cases tried without a jury, and we have explicitly held that the rule applies when we review nonjury criminal causes (under Rule 772), nonjury defective delinquency cases, child ⁵⁸⁵ support awards, and child custody cases. Hild v. Hild, 221 Md. 349, 359 , 157 A.2d 442, 448 (1960). Since Hild we have consistently applied the “clearly erroneous” portion of Rule 886 (or that standard without citation to the rule) in our review of child custody awards.

Moreover, even prior to our explicit recognition in Hild of the applicability of Rule 886, our predecessors in essence utilized the clearly erroneous standard when reviewing factual determinations on appeals of child custody actions. Since Rules 886 and 1086 are identical, what we say with respect to one is equally applicable to the other. Having determined that Rule 886 is controlling in child custody cases, we now consider the extent to which the “clearly erroneous” portion of it applies in such appeals. The words of the rule itself make plain that an appellate court cannot set aside factual findings unless they are clearly erroneous, and this is so even when the chancellor has not seen or heard the witnesses.

On the other hand, it is equally obvious that the “clearly erroneous” portion of Rule 886 does not apply to a trial court’s determinations of legal questions or conclusions of law based upon findings of fact. Although these two propositions are clear, there is some confusion in our cases with respect to the standard of review applicable to the chancellor’s ultimate conclusion as to which party should be awarded custody. Notwithstanding some language in our opinions that this conclusion cannot be set aside unless clearly erroneous, we believe that, because such a conclusion technically is not a matter of fact, the clearly erroneous standard has no applicability. However, we also repudiate the suggestion contained in some of our predecessors’ opinions, and relied upon by the Court of Special Appeals in Sullivan v. Auslaender, 12 Md.App. 1, 3-5 , 276 A.2d 698, 700-01 (1971), and its progeny, that appellate courts must exercise their “own sound judgment” in determining whether the conclusion of the chancellor was the best one.

Quite to the contrary, it is within the sound discretion of the chancellor to award custody according to ⁵⁸⁶ the exigencies of each case, and as our decisions indicate, a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion. Such broad discretion is vested in the chancellor because only he sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; he is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor. In sum, we point out three distinct aspects of review in child custody disputes. When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rules 886 and 1086 applies. [Secondly,] [i]f it appears that the chancellor erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless.

Finally, when the appellate court views the ultimate conclusion of the chancellor founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor’s decision should be disturbed only if there has been a clear abuse of discretion. 280 Md. at 122-26 , 372 A.2d at 232-34 (some internal citations omitted; emphasis added). See also Robinson v. Robinson, 328 Md. 507, 513 , 615 A.2d 1190, 1193 (1992); McCready v. McCready, 323 Md. 476, 484 , 593 A.2d 1128, 1131 (1991); Lipiano v. Lipiano, 89 Md.App. 571, 576 , 598 A.2d 854, 857 (1991), cert, denied, 325 Md. 620 , 602 A.2d 710 (1992). In CINA cases where there has been found a past instance of abuse or neglect, the Legislature dictates that specific supporting facts be determined by the hearing court. Md. Code (1974, 2002 Repl.Vol.); Cts. & Jud.

Proc. Article, § 3-801 defines a “child in need of assistance (CINA) as “a child who requires court intervention because: (1) the child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) the child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” As noted supra, Md.Code (1974, 2002 c), Cts. & Jud. Proc. Article, ⁵⁸⁷ § 8-828(f) requires that the trial court not order long term foster care unless the court finds “that the person or agency to which the child is committed has documented a compelling reason for determining that it would not be in the best interest of the child to: (1) return home; (2) be referred for termination of parental rights; or (3) be placed for adoption or guardianship with a specified and appropriate relative or legal guardian willing to take care for the child” (emphasis added).

As we have pointed out, supra, § 3-823(f) sets forth a statutory hierarchy of placement options in descending order of priority. First and foremost, the court must consider returning the child to the child’s parent or parents. In re Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md. at 677-78 , 796 A.2d at 784-85 ; In re: Adoption/Guardianship No. 10941, 335 Md. at 105-06 , 642 A.2d at 204-05 . Where the child has been declared a “child in need of assistance” because of abuse or neglect, the trial court is further constrained by the requirements of § 9-101. 12 This section directs the court to deny custody to the parent unless the court makes a specific finding that there is no likelihood of further abuse or neglect. 13 Md.Code (1974, 1999 Repl.Vol.), Family Law Art., § 9-101(b); see also In re Mark M., 365 Md. at 706 , 782 A.2d at 343 .

The burden is on the parent previously having been found to have abused or neglected his or her child to adduce evidence and persuade the court to make the requisite finding under § 9-101(b). See In Re: Adoption No. 12612, 353 Md. 209, 232-39 , 725 A.2d 1037, 1048-52 (1999). The language of § 9-101(b) notwithstanding, it does not require that the hearing judge be a prophet or soothsayer and somehow “know” that there will never be a ⁵⁸⁸ future incident of abuse or neglect. Such a finding would require unobtainable proof on the part of the parent, and omniscience on the part of the judge.

Such a construction would render the statute nonsense. 14 As we pointed out in In re: Adoption No. 12612, 353 Md. 209, 238 , 725 A.2d 1037, 1051 (1999): Section 9-101 focuses the court’s attention and gives clear direction in the exercise of its discretion. It does not set an insurmountable burden; even upon substantial evidence of past abuse or neglect, it does not require a finding that future abuse or neglect is impossible or will, in fact never occur, but only that there is no likelihood — no probability— of its recurrence. Webster defines likelihood as probability, something that is likely to happen, (emphases added). “The fear of harm to the child or to society must be a real one predicated upon hard evidence, it may not be simply gut reaction or even a decision to err-if-at-all on the side of caution.” In re Jertrude O., 56 Md.App. at 100, 466 A.2d at 894. A. As we noted supra, the first step in our review of the case sub judice is to scrutinize the factual findings of the juvenile court under the clearly erroneous standard.

We reiterate that one of the findings required here is a finding by a preponderance of the evidence that there is no likelihood abuse or neglect is likely to reoccur. 15 The juvenile judge’s ⁵⁸⁹ findings, presented from the bench in support of her 28 March 2001 order, were as follows: At long last, the evidence is all over, and I’m going to do what I promised Yve I would do. And it’s not an easy thing to do. It hasn’t been easy. This case has not been easy from the very beginning, because of the parties involved in it.

And I don’t mean the attorneys and the foster parents and the social workers. I don’t mean that at all. I mean, because of Yve and her mom. I think that I remarked the last time, and I will reiterate again that I think that I’ve had this case almost 100 percent of the time the hearings have come in.

I believe that I even had the emergency, I had the adjudication, I had the disposition, uh — I’m the judge who returned Yve to her mom, uh — and obviously hindsight’s 20/20, but that was a major disaster. I’ve been the judge that’s seen Yve and watched her progress since she came back from North Carolina. I’ve seen Yve on many occasions. She’s come in to see me.

We usually don’t have her sitting here. Sometimes we do, for the court hearings, if they weren’t too controversial, we had her here. She’s drawn me many pictures. She’s written me many letters.

We’ve had many conversations at foster care picnics. She’s one of the first children that always comes up to me and says hi, Judge [ ], how are you, and tells me what’s going on with her, and introduces me to all her friends. She’s a lovely, delightful little girl. But, during all the years that I’ve known Yve, I know that she’s not what she appears on the surface.

She also has many, many problems. Her mom is a wonderful person, and for the most times that she’s been in the courtroom, she’s been very, very appropriate, very polite, respectful, uh, trying to answer questions that were given to her, trying to give information and has never, ever shown anything but complete love and concern for Yve. And I think that [Counsel for Yve S.] is right, that Yve has always wanted to be with her mom. There’s no ques ⁵⁹⁰ tion about it, and her mom has always wanted Yve with her.

The problem has been that for a good portion of this case, Mom’s not been capable of taking care of Yvé. And for also a good portion of the case, even if Mom were capable, at certain times, Yve’s had some real severe problems. I remember when she first went to live with [Yve S.’s first foster family]. She had some real acting-out problems.

As a matter of fact, before she even came into care, the school were so concerned, her problems were such, she was acting out in school. They were very, very concerned about her, with what was going on, which is, I think what eventually brought the Department into the case, was. the school’s concern, because they saw her on an everyday basis, and her inability to conform her behavior, uh — brought her to the attention of, uh, the authorities. There’s no doubt in my mind that Ms. S. absolutely adores Yve, and there’s no doubt in my mind that Yve adores her mom. But, I cannot at this time return Yve to her mom.

Although she’s doing much better than at any time that I’ve ever seen her, just a few things stand out that are indicative of decisions that she made that put Yve at risk. One of the reasons that she lost her job, and who knows what the real reason is, but we’ve had a lot of people testify about it. Ms. S. testified about it, Ms. Rose [the social services case worker] testified about it, the minister testified about it, uh — is that week she chose to go to Suburban Hospital rather, with a friend that was having a problem, rather than go to work. Now, I certainly admire her for doing that.

She is a good friend and wants to help the person, but that was one of the straws that broke the camel’s back, about why she lost her job. On Sunday, I think that it’s wonderful that she works with women at the homeless center, because she herself was there for a while. She understands how important that it is to be involved there. But, she doesn’t need to bring that ⁵⁹¹ woman around Yve.

Yve’s a child who needs constant care, attention, structure, as well as love. Uh — I’m very aware of Yve’s condition when she came back from North Carolina and all of the things that happened to her in North Carolina. Uh — that situation was very detrimental to her. She ended up being placed, by her mom, left in the care of some people who were pretty bad people.

Hopefully nothing happened to her. We don’t know for sure whether it did or it didn’t, but she ended up having to go into foster care there, and then coming back here. As recently within the last two weeks, she says she wanted to kill herself. That’s definitely a child with special needs.

Most ten-year-olds do not go around saying they want to kill themselves. She says that she wants to be with her mom, because her mom needs her. She wants to make her mom happy. That’s a very big burden for a ten-year-old girl.

It’s really hard for her to take care of herself, much less feel the responsibility of having to take care of her mom. I don’t know, there’s no way to ever know whether Ms. S. will be able to take care of Yve. I hope so, but it is certainly not now. And Yve asked me to make a decision, and I’m not going to have that decision be that we’ll work towards getting her home with her mom, because I don’t see the realistic expectation of that.

I honestly don’t. Taking care of her on weekends, and I’m so glad that the visits have been successful, is one thing, but trying to manage a child like Yve, with all of the, the special attention that she needs, and all the coordination that is involved with getting her to the therapist that she needs, working with the school system. Mom’s tried, she really has tried, and I give her all kinds of credit for that. I think that she’s done a wonderful job with that.

But no one today says that she’s able to do it, and I don’t know when she’ll ever be able to do it. ⁵⁹² The job situation is certainly part of it, but that’s not the whole thing. It’s a judgment consideration. I understand what Ms. Rose talked about her concern about the escalation in behavior, and I also understand that Dr. Harold [Yvonne S’s psychiatrist] sees that not as a problem. He talked about the lack of communication.

I was struck not by the same things that Ms. Rose was struck by, with Ms. S.’s testimony, but her — inability sometimes to listen to what the question is, and answer it. She often answers questions that are asked. And Dr. Harold alluded that with — Ms. Rose testified that she tried to say to Ms. S., I can’t read his writing, I don’t understand what he means, you’ve got to tell me what the explanation was, and it became a big problem. Somehow or another, that lack of communication, and I don’t really know why, but it happens a lot.

And today, when Ms. S. was testifying, she often answered questions that were not the questions that were asked. . The information was certainly beneficial and appropriate, but it was not the question that was asked. My point in bringing that up is that Yve is a child who requires constant, vigilant attention, and she needs clear guidelines, structure. She needs to know, she has to act within something that she can anticipate.

And the progress that she’s made in the [current foster parent’s] home, from the testimony has been, because of the structure that they’ve been able to provide for her. I have extreme concerns about the mom ever being able to provide the structure that Yve needs. So, I know that it’s taken me a long time to get here, but it’s taken us a long time, and we’ve heard a lot of evidence. And, I don’t think that any of it wasn’t beneficial.

I was very interested to hear from, us — Ms. S.’s minister, and I’m so happy for her that she has him in her life, and that she has the extended church. I think that information was very, very beneficial, and I’m glad for her that she has that. And it’s a real network that can help her. ⁵⁹³ I think that it’s wonderful that she has Dr. Harold. Clearly, they have an excellent relationship, and she’s made so much progress from where she’s ever since the 50 — how many months, four, six, since we’ve been involved in this case, uh, she’s made wonderful progress, and she’s doing really, really well.

But I just cannot make the decision that she’s going to be able to take care of Yve. So, I am going to adopt the permanency plan of long-term foster care. I feel that it’s appropriate that she remain, where she has been, for over thirty-some months, where she has done very well. She’s blossomed there.

On the other hand, I think that it’s very appropriate that she continue to have visitation with her mom, and as frequent— certainly a minimum of once a week, and as long as both of them are able to maintain safety. Again, my priority is Yve. She is number one. It’s my understanding from listening to Ms. Rose testify that she’s hoping to get back to weekend visits, very, very soon, and I would certainly hope that’s what happens.

But, I am going to put the visitation minimum of once a week, under the direction of the Department, because clearly, in this case, things change. Things change with Yve, and things change with her mom. (emphases added). It is apparent to us from these “findings” that the best interest of the child standard was misapplied in this case.

As detailed supra, the proper issue before the hearing judge was whether there was sufficient evidence that further abuse or neglect was unlikely. 16 Except to the extent that the parent’s ability, or lack thereof, to deal with the needs of a child rise to the level of neglect, findings that the child has “some real severe problems” or “has special needs” or “requires constant, vigilant attention,” or has mentioned sui ⁵⁹⁴ tide, 17 are not relevant to this determination. Similarly, as we have pointed out repeatedly, the fact that the child may be “doing very well,” or may have made progress in the environment of foster care,' or even “blossomed there,” or may feel that she needs to take on the burden of caring for the parent, are also largely not telling on the main issue. “The fact that [a parent] has a mental or emotional problem and is less than a perfect parent or that the children may be happier with their foster parents is not a legitimate reason to remove them from a-natural parent competent to care for them in favor of a stranger.” In re: Barry E., 107 Md.App. at 220 , 667 A.2d at 938 . Reading the remaining “findings” in a light most charitable to the hearing judge, we note that she seemed to be concerned about the mother’s ability to exercise sound judgment, doubt about which the trial judge felt somehow placed Yve S. at risk. The hearing judge neither states how these concerns rose to the level of, or somehow indicate a future likelihood of, abuse or neglect, nor is it particularly clear how any of the judge’s concerns, individually or collectively, actually put Yve S. at any perceivable risk..

More to the point, however, the “findings” themselves are not supported by the relevant record evidence. The first of these findings is the assumption by the trial judge that one of the reasons Yvonne S. lost her job was because she chose to visit a sick friend in the hospital instead of going to work on time. Yvonne S did testify that she went to the hospital one day as the result of a friend passing away, and that as a result she was slightly over two hours late for work that day. The undisputed testimony, however, was that she nonetheless worked over eight hours that day.

There is no testimony in the record by anyone that her being late for work that day was the reason for the loss of the particular job. ⁵⁹⁵ To the contrary, the uncontraverted testimony from Yvonne S. and from her psychiatrist, Dr. Harold, was that the reason she lost her job was because of the scheduling demands made upon Ms. S. by the case worker, Ms. Rose, and by the numerous court hearings in this case. Regarding Ms. S.’s employment discharge, Ms. Rose testified on cross-examination: Petitioner’s Counsel: How many phone contacts did she have with the employer prior to his informing her that she was going to be fired? Respondent’s Counsel: And I would object as to relevancy. COURT: I’ll allow it.

A: Since Ms. S. first began working there? Q: Yes A: This will just be off the top of my head, because I— would have to go back through my notes. I would say probably about six. Q: And, uh, most of those occurred prior to her being fired, didn’t they?

A: All but one occurred prior to her being fired. Q: But within the month prior to her being fired? A: No. Q: Was there one prior to the one where he told you she was fired? A: One— Q: Tell— A: All of them but one were prior to the — her being fired.

Which one are you— Q: Okay. In the month before she was fired, how many times did you talk to her employer? A: Uh — I don’t recall talking to him at all that previous month. Q: Do you remember talking to Ms. S about having a visit with Yve that would go over into a Monday?

A: Yes, thank you for refreshing my memory. There was one. ⁵⁹⁶ Q: And what did you say to the employer? A: I, uh — we were trying to offer Ms. S. extended visits. She had mentioned at her school meeting that she didn’t have as much information as the rest of us, ‘cause she felt that she didn’t have that much time with her daughter.’ And I was trying to come up with some plan where we could extend that.

So I offered her a visit beginning from Friday evening until she could keep her through Monday morning. Q: And she told you that she couldn’t do that, because she had to be at work early on Monday morning? A: She had to be at work at nine o’clock Monday morning, yes. Q: And in order to do that, she would have to drive Yve to Silver Spring in the morning, and they would have to get up too early in the morning.

It wouldn’t be good for Yve. A: That was her statement. Q: And she also told you that this was jeopardizing her job, if she continued to make requests of her employer? A: I don’t remember her saying that it was jeopardizing her job.

My memory is that she said that her employer did not want her to do this, because she might come in late. Q: Was it after that, that you talked to the employer? A: Yes Q: And what did you say to him? A: I asked him if this was a concern that he had?

Q: And that was before the conversation that you had with him, where he told you that she was fired? A: Yes There is nothing in Ms. Rose’s testimony that supports the “finding” of the trial judge that poor judgment was the reason for Yvonne S.’s discharge, and certainly nothing connecting the discharge to a visit to a friend in the hospital. Similarly, there is no such connection in any of the testimony by others who addressed the issue of Yvonne S.’s employment. Yvonne S. testified as follows: Q: Did Christopher Trump (Phonetic)— ⁵⁹⁷ A: Uh— Q: Tell you that you were discharged?

A: Uh — well, I had, after that, I had a meeting with two staff people. One was human resources, two were human resources, one was Chris Trump, and he said to me, you’ve been