UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2222

September Term, 2013

IN RE: AALIYAH S.

Meredith,

Graeff,

Leahy,

JJ.

Opinion by Leahy, J.

Filed: August 12, 2014

Aaliyah was born, prematurely, on January 4, 2011, to Victoria S. (“Mother”), then

seventeen years old, and Torray J. (“Father”).1 Within a year, Montgomery County

Department of Health and Human Services (“the Department”) began investigating

allegations of neglect. On August 13, 2012, the Circuit Court for Montgomery County,

sitting as juvenile court, adjudicated Aaliyah to be a child in need of assistance (“CINA”).2

Mother appeals an order of the juvenile court, following a permanency planning

hearing held on November 20, 2013, that changed Aaliyah’s permanency plan from

reunification to a concurrent plan of reunification and custody and guardianship to

Aaliyah’s maternal grandmother (“Grandmother”). Mother raises one question for our

review:

Did the court err by changing Aaliyah’s permanency plan from a sole

plan of reunification to a concurrent one of custody and guardianship

to relative and reunification?

The Department filed a Motion to Dismiss, arguing that an order changing a

permanency plan from reunification to a concurrent plan of reunification and custody and

guardianship to a relative is a non-appealable interlocutory order. We shall grant the

Department’s Motion to Dismiss, because the concurrent plan of reunification and custody

1 Father was incarcerated on charges related to domestic violence toward the

Mother at the time of the CINA petition and does not join in this appeal.

2 “‘CINA’ means a child in need of assistance[,]” which is defined as “a child who

requires court intervention because: (1) [t]he child has been abused, has been neglected,

has a developmental disability, or has a mental disorder; and (2) [t]he child’s parents,

guardian, or custodian are unable or unwilling to give proper care and attention to the child

and the child’s needs.” Md. Code (1973, 2013 Repl. Vol.), Courts and Judicial

Proceedings Article (“CJP”), § 3-801(f)-(g).

2

and guardianship to Grandmother is not a detrimental change, nor is it sufficiently far

enough along the continuum of depriving Mother of her fundamental right to the care and

custody of Aaliyah. See In Re Karl H., 394 Md. 402 (2006) (discussed infra).

Accordingly, we dismiss the instant appeal.

FACTS AND PROCEEDINGS

A. The Department’s Initial Involvement and Mother’s First Eviction from

Grandmother’s Home

As a result of her premature birth, Aaliyah suffers from various health problems.

Her pediatrician expressed concerns in November 2011 that Aaliyah was not gaining

weight and that Mother had poor compliance with Aaliyah’s medical regimen. Mother

missed Aaliyah’s medical appointments and declined to receive services from the

Maryland Choices as well as the Maryland Infants and Toddlers Programs. Mother had a

diagnosis of Bipolar Disorder. At the time, Mother and Aaliyah were living with

Grandmother.

On January 25, 2012, the Department received a report that although Mother resided

in Grandmother’s home, she left Aaliyah in Grandmother’s care. When Grandmother

attempted to take Aaliyah to the doctor for treatment, she was denied care because she did

not have custody. Grandmother ultimately evicted Mother from her home, and on January

26, 2012, the Department placed Aaliyah into Shelter Care. The next day, the Department

filed a CINA Petition in the Circuit Court for Montgomery County.

3

The circuit court, sitting as juvenile court, issued an Interim Shelter Care Order

placing Aaliyah in the Department’s custody for temporary placement with the

Grandmother on January 30, 2012. After a hearing on February 2, 2012, the court issued

a Shelter Care Order, finding that Mother had been evicted from Grandmother’s home and

had nowhere to live with Aaliyah, and that Father was incarcerated. With the parties’

consent, the court continued Aaliyah’s placement under the protective supervision of

Grandmother.3 The court also issued an “Order Granting Limited Guardianship of a

Juvenile for Decision-Making Purposes to Grandmother.”

B. The CINA Disposition and Mother and Aaliyah’s Relocation to Grandfather’s

Home

Thereafter, Mother made arrangements for herself and Aaliyah to live with

Aaliyah’s maternal grandfather (“Grandfather”), and on March 13, 2012, the Department

filed an Amended CINA Petition. At the CINA Adjudication and Disposition hearing held

that same day, Mother and Father agreed to a statement of facts and waived their right on

the record to proceed to trial. The parents stipulated, among other things, that Father was

incarcerated; that Mother did not follow through with the Infants and Toddlers Program;

and that a Family Involvement Meeting was held, at which Mother would not agree with

the plan for Grandmother to continue caring for Aaliyah. The parties also stipulated that

Mother had developed a plan according to which she and Aaliyah would live with

Grandfather in Frederick County, Maryland, and Mother would participate in services,

3 The record does not indicate where Mother was living during this time.

4

acknowledging that she needed the oversight of the Department to ensure proper care of

her child.

Based on the facts presented and agreed to by the parties, the court found Aaliyah

to be a CINA, but ordered that Aaliyah be returned to Mother’s care and custody under an

Order of Protective Supervision to the Department. The court further ordered Mother and

Aaliyah to reside in Grandfather’s home and warned “THAT THE PERMANENCY PLAN

OF REUNIFICATION MAY BE CHANGED TO ANOTHER PERMANENCY PLAN,

WHICH MAY INCLUDE A PETITION FOR TERMINATION OF PARENTAL

RIGHTS IF THE PARENTS HAVE NOT MADE SIGNIFICANT PROGRESS TO

REMEDY THE CIRCUMSTANCES THAT CAUSE THE NEED TO REMOVE.”

On July 6, 2012, the court held its first CINA review hearing. The Department’s

report described the problems with Mother living in Grandfather’s home. Grandfather

“described [Mother] as deceptive and disrespectful which cause[d] him to retaliate against

her by asking her to leave his home and removing from her the car keys.” Mother had

begun to look for alternative housing, but had found nothing by the time of the report. The

court issued an order on July 6, 2012, continuing Aaliyah’s status as a CINA and her

placement in Mother’s care and custody. The court also granted Father unsupervised

visitation. Only two days after the review hearing, Father assaulted Mother at an unknown

location and was then arrested on July 10, 2012, for assault and theft charges. On July 19,

2012, the Department filed a Motion to Modify the July 6 Order, which the court granted,

limiting Father to supervised visitations with Aaliyah.

5

C. Mother and Aaliyah’s Relocation to an Apartment in Thurmont

Mother moved with Aaliyah into her own apartment in Thurmont Maryland in

November. For a while, Mother worked at a grocery store and a hotel. She lost both

jobs, and was criminally charged with theft under one thousand dollars for stealing gas

points from the grocery store.

At the six-month review hearing on December 6, 2012, the Department reported

that Mother demonstrated she was committed to Aaliyah, but Mother’s decisions

concerning employment and ongoing contact with the Father were troubling. The court

continued Mother’s custody of Aaliyah, but ordered that Aaliyah remain a CINA.

On December 10, 2012, the Department requested an emergency hearing because

Mother was arrested and charged with second-degree assault of her boyfriend. 4 As

described in the motion, Aaliyah was injured during the altercation:

Police were called to the mother’s home [in Thurmont] after the mother was

involved in a physical altercation with her boyfriend. The mother was

arrested and charged with second-degree assault. When the grandmother

arrived at home, she found that . . . Aaliyah had sustained a bloody nose and

a cherry sized bruise on her leg during the altercation.

D. The Court Places Aaliyah in Grandmother’s Custody

On December 13, 2012, the Circuit Court for Frederick County, 5 sitting as a

4 The altercation was not with Father.

5 On December 28, 2012, the court granted the Department’s Motion to Transfer

the CINA Proceeding to the Circuit Court for Frederick County, given that Mother lived in

Thurmont in Frederick County. After conducting the January 30, 2013, review hearing,

6

juvenile court, entered an Emergency Change of Placement Order granting limited

guardianship to Grandmother, and provided Mother with supervised visitation under the

Department’s direction.6 Aaliyah’s health improved during her out-of-home care with

Grandmother. At the January 30, 2013, review hearing, the Department reported that

although Aaliyah was doing well, Mother remained unemployed and was arrested for

driving under the influence.

E. Mother Moves Back into Grandmother’s Home

Grandfather stopped paying Mother’s rent in February 2013, and she became

homeless. Mother filed an emergency motion on February 12, 2013, to be permitted to

reside in Grandmother’s home. After a hearing, the court granted Mother’s motion in an

Order dated February 19, 2013, but ordered her to participate in a substance-abuse

evaluation and weekly urinalysis. Over the next several months however, Mother moved

in and out of Grandmother’s home. On one occasion, Grandmother called police to the

home. Grandmother expressed concerns regarding Mother’s belligerent behavior, non-

compliance with court orders, association with unsavory individuals, and suspected

substance involvement.

the court entered an order transferring the matter back to the Circuit Court for Montgomery

County on January 31, 2013.

6 FL § 9-101(b) requires a court to deny custody and visitation rights to a party

“[u]nless the court specifically finds that there is no likelihood of further child abuse or

neglect by the party,” although “the court may approve a supervised visitation arrangement

that assures the safety and the physiological, psychological, and emotional well-being of

the child.”

7

At the June 5, 2013, review hearing, the Montgomery County Circuit Court, sitting

as a juvenile court, noted that Mother had “made some progress” as she had enrolled for

medical-technician courses and complied with therapy and psychiatric services. The court

also found, however, that Mother had difficulty in complying with some of the court’s

existing orders. The court noted that the “current plan, by default, is reunification,” and

ordered Aaliyah’s status remain as a CINA under Grandmother’s custody and limited

guardianship.

F. Mother’s Second Eviction from Grandmother’s Home

Grandmother contacted the police again on June 16, 2013, because Mother returned

home in an intoxicated state and broke the screen door. Mother was arrested and charged

with malicious destruction of property, disorderly conduct, and alcohol beverage

intoxication and endangerment. She was released on June 19, 2013. By then,

Grandmother was no longer willing to permit Mother to reside in the home. The

Department was concerned about Mother, who was homeless and despondent, and

encouraged her to go to the Crisis Center for evaluation and shelter placement. She

refused. According to a police report, on June 26, 2013, Mother went to Father’s

residence, got into an argument, and struck Father in the head with a glass vase. Father was

hospitalized in the Intensive Care Unit. Mother was criminally charged and incarcerated.7

In an order dated July 22, 2013, the court suspended visitation until Mother’s release from

7 Mother was incarcerated for a short period beginning July 3, 2013. The State

entered a nolle prosequi on the charges.

8

incarceration and until Mother presented herself for evaluation and participated in

substance-abuse, abused-person, and anger-management programs.

G. Mother’s Third Eviction from Grandmother’s Home

Grandmother relented and tried to accommodate Mother in her home; however, she

ultimately decided that it was not in Aaliyah’s best interests to allow Mother to continue

living there. On November 7, 2013, Grandmother called the police to remove Mother

from her home after Mother made threats to burn it down. Grandmother filed a protective

order against Mother, which became final on November 14, 2013. Mother went to live

with some friends until they also removed her from their home and filed a report in the

District Court for malicious destruction of property on November 15, 2013.

H. The Permanency Planning Hearing

On November 20, 2013, the court held a permanency planning hearing. In support

of its recommendation for a permanency plan of custody and guardianship to Grandmother,

the Department called Leslie Henriquez, qualified as an expert on risk and safety

assessment, to testify about the report she prepared for the hearing and the factors listed in

Md. Code (1984, 2012 Repl. Vol.), Family Law Article (“FL”), § 5-525(e)(1).8 She first

8 The Department is required to consider the factors enumerated in § 5-525(f) when

developing a permanency plan in a child’s best interests. The provision reads as follows:

(f)(1) In developing a permanency plan for a child in an out-of-home

placement, the local department shall give primary consideration to the best

interests of the child, including consideration of both in-State and out-of-

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opined that Aaliyah was not safe, at least for the time being, living with Mother. She

testified that she had observed Mother and Grandmother engaged in an argument that

provided a “very explosive environment for the child, which . . . made the child observably

uncomfortable.” Ms. Henriquez opined that Mother’s volatility continued since she

moved out of Grandmother’s home. She explained that she also considered Mother’s

criminal charges and domestic incidents in determining whether Aaliyah is able to be safe

in Mother’s home, Ms. Henriquez testified that she believed Aaliyah loves her mother and

misses her; however, she opined that Aaliyah is “a little bit scared of” Mother. Ms.

Henriquez observed that Aaliyah has a strong attachment to Grandmother, is dependent on

Grandmother, and seeks comfort in Grandmother. When asked whether there was any

potential emotional developmental or educational harm to Aaliyah under the Department’s

recommended permanency plan, Ms. Henriquez responded:

[M]y recommendation for custody and guardianship would still allow

[Mother] to be very much a part of Aaliyah’s life, and that it’s important to

state placements. The local department shall consider the following factors

in determining the permanency plan that is in the best interests of the child:

(i) the child's ability to be safe and healthy in the home of the child's

parent;

(ii) the child's attachment and emotional ties to the child's natural

parents and siblings;

(iii) the child's emotional attachment to the child's current caregiver

and the caregiver's family;

(iv) the length of time the child has resided with the current caregiver;

(v) the potential emotional, developmental, and educational harm to

the child if moved from the child's current placement; and

(vi) the potential harm to the child by remaining in State custody for

an excessive period of time.

10

maintain that relationship. And so we are not requesting that [Mother’s]

rights be terminated, but just that [Grandmother] be the guardian of Aaliyah,

to make decisions.

On cross-examination, Ms. Henriquez acknowledged that there was a protective order in

place at that time preventing Mother from having contact with Grandmother.

Mother testified on her own behalf. She explained that after she completed a

nursing program, she obtained a job at an elderly group home, but was discharged 2.5

weeks later due to her inability to receive her nursing certificate because the Department

failed to fulfill its agreement to pay for a portion of the program.9 When asked whether

she had any criminal charges outstanding, she stated that everything had been resolved.10

Mother also testified that she consented to the protective order in effect between her and

Grandmother.

Grandmother briefly testified that she felt strongly about Mother having a

relationship but Aaliyah, but that “it just can’t be done with me and [Mother] in the same

9 Ms. Henriquez testified that the Department discovered that Mother had been

receiving temporary cash assistance in an amount over $700, demonstrating that Mother

could pay for the course herself.

10 In response to the court’s questioning about Mother’s criminal history, Mother’s

counsel clarified that Mother was charged for malicious destruction of property under

$500, incident date of December 28, 2012, for which she was found guilty. The fine of

$500 was suspended, and she received a sentence of 60 days in jail, with all but 52 days

suspended. She received credit for the 8 days served and probation. Counsel added that

“everything’s closed except for the probation and this new thing that came on for which

she hasn’t even received a summons.” It is not clear from the record whether counsel was

referring to the second-degree assault charge stemming from the incident when Mother hit

Father with a vase.

11

home.” The court also briefly consulted with Aaliyah, which, given Aaliyah’s young age,

predominantly consisted of conversation regarding Aaliyah’s book, bear, and crayons.

The Department argued during closing that Mother had made little progress:

The reality is, we are no closer now than we were in December 2012 to

getting any resolution of those issues. The prognosis, if we look at the future

based upon the history, is slim to nil. . . . [T]his is a woman who does not

have any control over her anger and, unfortunately, this child keeps on

getting exposed to that. That’s why the department is asking at this point in

time to change the permanency plan to custody and guardianship with the

maternal grandmother.

On behalf of Aaliyah, the child’s attorney claimed that it was too premature to change the

permanency plan, stating, “If we close this case with custody and guardianship to the

grandmother the likelihood of any relationship Aaliyah having with her mother, is slim to

none over the next year.” Father’s counsel also supported a plan of reunification with

Mother.

In rebuttal, the Department emphasized that the proposed plan of custody and

guardianship

. . . [is] not as final as a termination of parental rights and adoption. . . .

We’re not asking for this case to go to termination of parental rights and

adoption. We agreed . . . that this child has a strong bond and attachment to

her mother . . . . But the reality is that her mother continues to fail to place

the interest of her child above her own poor decision-making. Over her

anger management issues. Over her domestic violence. Over her lack of

parenting skills. And over her need for mental health services.

On December 4, 2013, the circuit court issued a Permanency Planning Hearing

Order, setting forth the court’s oral ruling at the hearing. In this order, the court discussed

12

each factor under FL § 5-525(f).11 With regard to Aaliyah’s ability to be safe and healthy

in her Mother’s home, the court concluded that this factor favored a plan of custody and

guardianship to Grandmother:

At this point, [Mother] is not allowed to live with [Grandmother]

because of a protective order. [Mother] has very limited stability in her

housing. . . . If the Court looks at whether there is some hope that [Mother]

could get along with either one of her parents, who might provide housing

for her, the evidence is pretty clear on this point, that she can’t. That

inability to get along with her parents really limits her ability to provide a

home of her own for the Child. Further, the Child has been exposed to

yelling and screaming and inappropriate behavior. . . . The Court also does

not know how long it would take [Mother] to establish housing of her own.

The court concluded that the evidence showed that Aaliyah is attached to both her

Grandmother and Mother, but that the Department’s evidence demonstrated that Aaliyah

“appears to look to the grandmother . . . as a primary caregiver.” The court noted,

however, that there was evidence that Grandmother did not always provide a safe home for

Aaliyah, such as when Grandmother allowed Mother to take Aaliyah to Grandfather’s

home for the weekend and when Grandmother transported Aaliyah in car without a car

seat. Therefore, the court found that the factor regarding attachment to current caregiver

did not favor Grandmother over Mother.

11 The court noted that the weight to be given to the length of time residing with

current caregiver (fourth factor) was difficult to assess because Mother had resided in

Grandmother’s home. The court did not give significant weight to the sixth factor—

potential harm to the child by remaining in State custody—because the Department had

placed Aaliyah with her Grandmother.

13

With regard to the potential emotional, developmental, and educational harm to

Aaliyah if moved from her current placement, the court concluded that Aaliyah is “well

used” to living in Grandmother’s household and that she is doing well; accordingly, the

court found that removal would be detrimental to Aaliyah. The court concluded:

[B]ased on all the factors under § 5-525(f) of the Family Law Article,

the permanency plan that is in the Child’s best interest is a change to a

concurrent plan of Custody and Guardianship with a Relative, specifically

[Grandmother], and reunification. The Department will have the ability to

begin a Home Study on [Grandmother] and [Mother] will have an

opportunity one last time to show that she can make real progress toward

reunification.

The court rejected the Department’s recommendation of a sole plan of custody and

guardianship to a relative and ordered a concurrent plan of reunification and custody and

guardianship to a relative. In light of the Domestic Violence Protective Order in place

between Mother and Grandmother, the court ordered supervised visitation to take place at

the Department’s Germantown office. The court scheduled the case for a review hearing

for February 26, 2014. On December 11, 2013, Mother filed a timely Notice of Appeal.

DISCUSSION

The Department moves to dismiss Mother’s appeal, contending that an order

modifying a permanency plan of reunification to a concurrent permanency plan of

reunification and custody and guardianship to a relative is not an appealable interlocutory

order. The reason the order is not appealable, according to the Department, is because the

order does not deprive Mother of the care and custody of her child or change the terms of

a care and custody order. Here, reunification was not eliminated from the plan, nor did

14

the plan change from reunification to adoption, and thus, the Department argues, the

expectation that the parent will regain custody continues. The Department asserts that

cases in which the Court of Appeals has determined an order changing a permanency plan

was immediately appealable involved situations where the plan was changed from

reunification to adoption or permanent foster care.

Mother counters that the interlocutory order is subject to appeal; specifically, she

argues that the order was detrimental to her because it “approved the Department’s request

to set forth on a path that would place Aaliyah in the permanent custody and guardianship

of an individual that the mother was court ordered to have no contact with.” We agree

with the Department that under the circumstances presented in this case, the order

establishing a concurrent plan of reunification and custody and guardianship to

Grandmother is not an appealable interlocutory order. We grant the Department’s Motion

to Dismiss.

Although appeals generally may be taken only from final judgments, see CJP § 12-

301, appeals may be taken from the interlocutory orders enumerated in CJP § 12-303. One

such order “depriv[es] a parent, grandparent, or natural guardian of the care and custody of

his child, or changing the terms of such an order.” Id. § 12-303(3)(x). In In re Damon

M., 362 Md. 429 (2001), the Court of Appeals addressed whether an order changing a

permanency plan from reunification to foster care or adoption was appealable under CJP §

12-303. The Court began by explaining the purpose of permanency plans:

15

The permanency plan is an integral part of the statutory scheme

designed to expedite the movement of Maryland's children from foster care

to a permanent living, and hopefully, family arrangement. It provides the

goal toward which the parties and the court are committed to work. It sets the

tone for the parties and the court and, indeed, may be outcome determinative.

Services to be provided by the local social service department and

commitments that must be made by the parents and children are determined

by the permanency plan. And, because it may not be changed without the

court first determining that it is in the child's best interest to do so, the

permanency plan must be in the child's best interest. 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), 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. at 436-37 (emphasis added). The Court concluded that “[t]he amendment of a

permanency plan to long-term or permanent foster care and adoption is a change in the

terms of the custody order,” and therefore immediately appealable. Id. at 437-38; see also

In re Adoption of Jayden G., 433 Md. 50, 70 (2013) (stating that “the main reason orders

changing the permanency plan to adoption are immediately appealable is because they have

a detrimental effect on the parent's constitutionally protected right to parent”).

In contrast to In re Damon, the instant appeal is from an order changing a

permanency plan from reunification to a concurrent plan of reunification and custody and

16

guardianship with a relative.12 An instructive case relating to concurrent permanency

plans is In re Karl H., 394 Md. 402 (2006), in which the Court of Appeals addressed the

appealability of an order establishing a concurrent permanency plan of reunification and

adoption. The parents of Karl H. and Anthony H. consented to a finding that their sons

were CINA. Id. at 405. At the initial permanency planning hearing, the Circuit Court for

Charles County, sitting as juvenile court, “approved concurrent permanency plans for

adoption by a non-relative or reunification with [the parents.]” Id. at 406. The parents

appealed, and this Court dismissed the appeal based on our conclusion that an order

establishing a concurrent permanency plan of adoption and reunification was neither a final

judgment nor an appealable interlocutory order. Id. The Court of Appeals granted

certiorari and ultimately vacated that decision. In reviewing concurrent permanency

planning generally, the Court noted that the local department of social services “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.” Id. at 419 (footnote omitted).

In the specific context of a concurrent permanency plan providing for both reunification

and adoption, the Court expressed concern:

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

12 Concurrent permanency planning, as defined in COMAR 07.02.11.03(B)(11), is

“the process of taking concrete steps to implement both primary and secondary

permanency plans, for example, by providing time-limited family reunification services

while also exploring relatives as resources.”

17

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.

Id. at 422. The Court held that an order establishing a concurrent permanency plan of

reunification and adoption was appealable. The case is significant in that it set forth the

standard for determining whether a permanency plan order is appealable:

In determining whether an interlocutory order is appealable, in the

context of custody cases, the focus should be on whether the order and the

extent to which that order changes the antecedent custody order. It is

immaterial that the order appealed from emanated from the permanency

planning hearing or from the periodic review hearing. If the change could

deprive a parent of the fundamental right to care and custody of his or her

child, whether immediately or in the future, the order is an appealable

interlocutory order.

We hold that a concurrent permanency plan that includes the option

of adoption is sufficiently far enough along the continuum of depriving a

parent of a fundamental right and is immediately appealable. Whether the

concurrent permanency plan was ordered at the permanency planning

hearing or, subsequently, at the periodic review hearing, the detrimental

effects are the same. Reunification and adoption are mutually exclusive

goals, and are directly contradictory goals. Reunification gives a parent the

opportunity for reconciliation. The goal of adoption, however, guarantees

that, under § 3-823(g) of the Family Law Article, after thirty days at the

earliest, a petition will be filed to terminate a parent’s rights along with the

hope of reunification.

Id. at 430-31 (emphasis added).

Returning to the instant case, the Department distinguishes In re Karl H primarily

because that case involved a concurrent plan including adoption rather than a concurrent

plan including custody and guardianship to a relative. In order to pinpoint the distinction

18

between adoption and custody and guardianship to a relative and discern whether this

distinction is significant, we first must review FL § 3-819.2. The statute provides that

when the court appoints a guardian, the guardian will have legal custody of the child. §

3-819.2(d). In determining whether to grant custody and guardianship, the court must

consider: (1) “[a]ny assurance by the local department that it will provide funds for

necessary support and maintenance for the child”; (2) “[a]ll factors necessary to determine

the best interests of the child”; and (3) a report prepared by the local department on the

suitability of the individual to be a guardian of the child. Id. § 3-819.2(f)(1). The

Department must submit this report within 120 days of the court’s order to produce the

report, id. § 3-819.2(f)(3), and the court may not grant custody and guardianship until this

report is submitted to and considered by the court. Id. § 3-819.2(h).

When a court grants custody and guardianship to a relative, the order “terminates

the local department’s legal obligations and responsibilities to the child.” Id. § 3-819.2(c).

Moreover, “[u]nless the court finds good cause, a case shall be terminated after the court

grants custody and guardianship of the child to a relative or other individual[;]” however,

“[i]f the court finds good cause not to terminate a case, the court shall conduct review

hearing every 12 months until the case is terminated.” Id. § 3-823(h)(iii)(1)-(2); § 3-

819.2(e) (instructing that “[a]fter granting custody and guardianship to an individual under

this section, the court may order any further reviews that the court determines to be in the

child’s best interests, consistent with § 3-823(h)(1)(iii)”).

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Based on this statutory framework, we agree with the Department that a permanency

plan’s inclusion of custody and guardianship is distinguishable from a permanency plan’s

inclusion of adoption. As the Department argues, a permanency plan’s inclusion of

custody and guardianship does not accelerate the termination of parental rights as does the

inclusion of adoption. We have explained:

A permanency plan in a CINA case may call for, inter alia, custody

and guardianship with a relative or adoption by a relative. If the permanency

plan calls for custody and guardianship by a relative but does not contemplate

adoption, the court may issue a decree of guardianship to the relative and

may then close the case. Parental rights are not terminated in such a situation:

the parents are free at any time to petition an appropriate court of equity for

a change in custody, guardianship, or visitation.

If the permanency plan calls for adoption by a relative, the court may

grant guardianship of the child to the local department with the right to

consent to adoption. Before doing so, however, the court must make express

findings, based on clear and convincing evidence, as to the required

considerations set forth in § 5–313(c) of the Family Law Article. The court

will not close the case until the adoption takes place. In such a situation,

parental rights are terminated when the decree of guardianship is entered.

In re Caya B., 153 Md. App. 63, 78 (2003) (internal citations omitted) (addressing an

appellant’s argument that the court’s grant of custody and guardianship to a relative

constituted a termination of her parental rights).

We also highlight two additional distinctions. First, unlike a concurrent plan with

the directly contradictory and mutually exclusive goals of reunification and adoption, the

goals of reunification and guardianship are not necessarily inconsistent. A guardian may

retain custody of the child until the parent becomes fit, and, in this way, guardianship may

serve as a medium toward reconciliation. Second, although the court here ordered the

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Department to conduct a Home Study on Grandmother, presumably in accordance with FL

§ 3-819.2(f)(1)(iii), to determine whether she could be an appropriate guardian, Mother

was still entitled to a review hearing. The court specifically provided for such a hearing

in its order, stating that Mother would have “an opportunity one last time to show that she

can make real progress toward reunification.” In the interim, Mother still receives

reunification services and retains the expectation of reunification if she complies with court

orders. It is pivotal to emphasize that in the adoption context, the next review hearing

would be replaced with a termination of parental rights (“TPR”) hearing. As the Court of

Appeals explained in In re Karl H., “[w]hen the option of ‘adoption’ enters into a

permanency plan, whether alone or with a concurrent vision, under § 3-823(g) the “local

department” must file a petition for TPR within thirty days (or sixty days if the local

department does not support the plan).” Id. at 431. As a result, “[a] parent is deprived of

a six-month review of the permanency plan. . . [because] [t]he six-month review is replaced

with a TPR hearing when “adoption” is a component of the permanency plan.” Id. (citing

§ 3-823(g)).

Our analysis does not end here because we must also consider whether the order in

this case “effectuated a detrimental change to [Mother’s] custody rights.” In re Joseph N.,

407 Md. 278, 291 (2009). The Court of Appeals has declared that orders maintaining

extant permanency plans may be appealable if they otherwise include a provision that

detrimentally impacts a parent’s rights. In re Billy W., 387 Md. 405 (2005); In re Joseph

N., 407 Md. 278 (2009). In In re Billy W, the Circuit Court for Baltimore County, sitting

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as juvenile court, issued orders that maintained the permanency plans for the parents’ four

children, but altered visitation. The orders relating to the two female children increased

visitation, and the orders relating to the two male children limited visitation. Id. at 425-

26. On appeal, 13 the Court held that the orders relating to the two girls were not

appealable because the amendments were to the parents’ advantage. Id. at 426. The

order that eliminated mother’s unsupervised visitation with the boys, however, “infringe[d]

upon [mother’s] opportunities to interact with, and care for, the boys and to potentially

build stronger relationships with them.” Id. The order that required father to hire an off-

duty officer to supervise visitation with one of his sons, the Court concluded, was “a

detrimental change in [father’s] visitation rights because the order operates as an effective

denial of visitation should he not be able to afford to pay for the officer's services.” Id.

Therefore, the Court held that the orders relating to the sons were appealable. Id.

In a subsequent case, the Court of Appeals permitted mother’s appeal from an order

reaffirming the permanency plan of reunification, but removing her child from foster care

and placing him in father’s custody. In re Joseph N., 407 Md. 278 (2009). At the outset

of its analysis, the Court framed the issue as “whether the court’s . . . order effectuated a

detrimental change to [mother’s] custody rights falling within Section 12-303(3)(x).” Id.

at 291. The Court answered this question in the affirmative, concluding that “[t]he court’s

order reaffirming a permanency plan of reunification, while shifting [the child’s] physical

13 Before this Court entertained the appeal, the Court of Appeals issued a writ of

certiorari on its own initiative. Id. at 424.

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custody to his father, did not merely maintain the status quo for [Mother, but] . . . was a

consequential and potentially outcome-determinative change because it potentially

increased the opportunity for [father] to obtain permanent custody.” Id. By placing the

child in father’s custody, the Court found that the focus on reunification with mother

changed. Id. at 292. Although such placement did not conclusively foreclose mother’s

reunification with her son, it had the potential to accelerate the grant of full custody to

father and to facilitate a bond and attachment between father and the child. Id. at 292,

294-95. Therefore, the Court concluded that the order was immediately appealable. Id.

at 295.

The instant case is distinguishable from both In re Billy W. and In re Joseph N.

Here, Mother’s history with Aaliyah includes periods of time when Aaliyah was living

under the custody and care of Grandmother while Mother was either incarcerated or living

elsewhere. Prior to the December 4, 2013, order and concurrent permanency plan at issue

on appeal, the juvenile court ordered on July 22, 2013, that Mother’s visitation would be

suspended until Mother was released from incarceration for assaulting Father and until

Mother presented herself to the Department for evaluation and identification of needed

services. The court also rescinded the provision contained in its prior June 10, 2013, order

that directed visitation occur in Grandmother’s home.14 Thus, we find the December 4,

14 In July, Mother was unable to visit Aaliyah at Grandmother’s home because

Grandmother evicted her for intoxication and malicious destruction of property. See supra

pp. 7-8

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2013, order did not substantially change visitation rights with Aaliyah to Mother’s

detriment. Furthermore, unlike In re Joseph N, the concurrent permanency planning order

here does not change the relative who is granted custody of Aaliyah. To the contrary,

Aaliyah had been in Grandmother’s custody since December 13, 2012. Therefore, by

continuing placement in kinship care with Grandmother, the juvenile court’s permanency

planning order did not change the terms of the antecedent court orders; rather, it maintained

the status quo and was not a detrimental change to Mother’s custody rights.15

In conclusion, the concurrent permanency plan of reunification and custody and

guardianship to Grandmother did not otherwise constitute a “consequential and potentially

outcome-determinative change” in Mother’s rights to her detriment, In re Joseph N., 407

Md. at 291. Thus, the plan is not “sufficiently far enough along in the continuum of

depriving a parent of a fundamental right” as to justify an immediate interlocutory appeal

under In re Karl H. and CJP § 12-303(3)(x). Although we recognize a parent’s

fundamental right to the care of his or her child, In re Yve S., 373 Md. at 566-68, we also

heed the prevailing principle in permanency plan cases that “a child should have

permanency in his or her life.” In re Adoption/Guardianship No. 10941, 335 Md. 99, 106

15 We note that In re Joseph N. does lend support to the notion that if the juvenile

court in the instant case ultimately grants custody and guardianship to Grandmother in the

future, this grant could potentially strengthen Grandmother’s ability to obtain permanent

custody in the future. However, whether the court would grant guardianship to

Grandmother is too speculative at this time to justify an interlocutory appeal.

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(1994). Permitting an immediate appeal of the interlocutory order establishing a concurrent

plan of reunification and custody and guardianship with Grandmother would

unwarrantably delay this paramount goal. Accordingly, we grant the Department’s

Motion to Dismiss this appeal.16

APPEAL DISMISSED;

COSTS TO BE PAID BY APPELLANT.

16 Even if we were to consider the merits, we would conclude that the circuit court

did not abuse its discretion in changing the permanency plan. The court properly weighed

each required factor under FL § 5-525(f)(1) and therefore did not “act[] without reference

to any guiding rules or principles.” In re Yve S., 373 Md. at 593 (citation and quotation

marks omitted). Nor were the court’s rulings “clearly against the logic and effect of facts

and inferences before the court.” Id. (citation and quotation marks omitted). In fact, the

court rejected the Department’s recommendation of a sole plan of custody and

guardianship to a relative by ordering a concurrent plan of reunification and custody and

guardianship to a relative. By implementing a concurrent plan, the court permitted the

Department to take “concrete steps to implement both primary and secondary permanency

plans, for example, by providing time-limited family reunification services while also

exploring relatives as resources.” In re Karl H., 394 Md. at 418 & n.13. In this way,

Mother still receives the benefit of the Department’s reunification services and has the

opportunity to address the obstacles impeding her reunification with Aaliyah.