Dissenting Opinion
Dissenting opinion by
which GREENE, J. joins.
We are asked to decide, in this case, whether, when the propriety of the order, entered in a child in need of assistance (CIÑA) case, and pursuant to which the termination of parental rights (TPR) proceedings are authorized, is the subject of a timely and properly filed appeal, it is permissible for a circuit court to pursue such proceedings when the appeal, which was filed by the parties whose parental rights are at stake, is pending in an appellate court. The majority declines to reach the merits of this issue, concluding that the matter is moot. While I, and, indeed, the petitioners, agree with the majority that the case is moot, it is nonetheless my opinion that this Court is authorized, and, more to the point, should exercise its discretion to decide this matter. It presents an issue which is likely to recur frequently and, because of the procedural timelines involved, one that likely will evade future review. Accordingly, I dissent.
I.
The petitioners, Virginia H. and Aaron R., are the parents of Cross H., who was born on August 28, 2007 at Johns Hopkins Hospital. Cross H. was born prematurely, and with several health complications, including prenatal exposure to the HIV virus. Virginia H., who was homeless at the time of Cross H.’s birth, has been diagnosed with, and hospitalized for, multiple psychiatric conditions. She also has a history
Cross H. was transferred to Mt. Washington Hospital on September 10, 2007, and remained there until October 3, 2007. On the day of his release, he was determined, by the Circuit Court for Howard County, to be a child in need of assistance (“CIÑA”), and, as a result, committed to the legal custody of the Howard County Department of Social Services (“the Department”). He was subsequently placed in foster care, with a permanency plan of non-relative adoption.
In January, 2009, Aaron R.’s paternity of Cross H. was confirmed, at which time Cross H.’s permanency plan was changed to reflect that the objective of the plan was reunification with his father. When, however, Mr. R. acknowledged that he was not a viable placement option for his son, at the petitioners’ request and in order to explore all possible relative placement options for Cross H., the Circuit Court, sitting as a juvenile court, ordered the Department to conduct both a home study and a bonding study involving Cross’s birth parents, his foster parents, and his paternal grandmother, Barbara J. Based on the findings of the bonding study, the juvenile master recommended that Cross H.’s permanency plan be changed back to non-relative adoption.
Only Virginia H. filed exceptions to the permanency plan, pursuant to which the Circuit Court conducted an exceptions hearing, spanning 4 days, on December 7 and 16, 2009, and on February 17 and 18, 2010. Following the hearing, on March 26, 2010, the juvenile court entered an order overruling the mother’s exceptions, and affirming the juvenile master’s recommendation for a permanency plan of non-relative adoption. Virginia H. timely noted an appeal of this order to the Court of Special Appeals.
Although the Circuit Court terminated the petitioners’ parental rights, it did not, upon doing so, file an order closing the CINA case, opting to defer filing such an order until Mrs. H.’s CINA appeal had been resolved. Therefore, with regard to that appeal, the Department filed, in the Court of Special Appeals, a motion to dismiss the CINA appeal as moot. Relying on the Circuit Court’s judgment in the TPR case as support, it argued that the court’s order terminating the petitioners’ parental rights effectively terminated the Circuit Court’s jurisdiction in the CINA case as well. The intermediate appellate court, in an unreported opinion, denied the Department’s motion. It reasoned that there still existed a live controversy in the CINA case since the juvenile court did not file, although it could have, an order closing the CINA case after the petitioners’ parental rights had been terminated. It then addressed the merits of the appeal and affirmed the judgment of the juvenile court. The court held, specifically, that the juvenile court did not err when it changed the permanency plan for Cross H. from reunification with father back to non-relative adoption. Virginia H. filed a petition in this Court for issuance of a writ of certiorari to review the intermediate appellate court’s CINA decision.
The petitioners, as we have seen, in the TPR case, noted timely appeals to the Court of Special Appeals. In a reported opinion, the intermediate appellate court concluded, inter alia, that the pendency of
“the circuit court [may] proceed with a termination of parental rights hearing when the parents’ appeal of the CINA order changing the permanency plan from reunification to non-relative adoption is still pending in the Court of Special Appeals.”3
The majority declines to address this issue, dismissing it as moot, since, after the Court of Special Appeals affirmed the CINA order changing the permanency plan to non-relative adoption, and this Court denied the petitioners’ petition for writ of certiorari to review that ruling, a live controversy ceased to exist. I agree that the case is moot. I do not agree that, given the unique procedural posture presented by this case, we should refuse to decide it. It is my opinion that this is an issue that is likely to recur, but will often do so within a time frame that will render it moot and, therefore, this Court, in order to provide much needed guidance on the effect of a TPR proceeding on a CINA appeal, must decide the issue. In that regard, in addressing the merits of the issue, I would conclude that proceeding with the adjudication of the parental rights of parties who have timely and properly appealed an order, which is still pending, that, while ostensibly separate, is, in fact, the effective predicate for such adjudication, would frustrate the right of such parties meaningfully and effectively to prosecute their appeal. Accordingly, I would hold that it is improper for a circuit court to adjudicate the parental rights of parents while a CINA case challenging the change in the permanency plan is pending on appeal.
II.
Statutory Framework
A child in need of assistance (CINA) is one 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.” Md.Code (1974, 2006 RepLVol., 2011 Supp.) § 3 — 801(f) & (g) of the Courts and Judicial Proceedings Article (“CJ”). See In re Andrew A.,
After a child committed to the local department’s custody enters an out-of-home placement, the juvenile court must hold a hearing within 11 months “to determine the permanency plan for [that] child.” CJ § 3-823(b)(l)(i). “[T]he 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,” regarding the best interests of the child in questions.
“[t]he permanency plan is an integral part of the statutory scheme designed to expedite the movement of Maryland’s children from foster care to 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.”
“A. Addresses the individualized needs of the child, including the child’s educational plan, emotional stability, physical placement, and socialization needs; and
“B. Includes goals that promote the continuity of relations with individuals who will fill a lasting and significant role in the child’s life.... ”
CJ § 3-823(e)(l)(i). If the juvenile court determines that adoption is the appropriate permanent plan for a child in need of assistance, it is required, by CJ § 3 — 823(g)(1), to “[ojrder the local department to file a petition for guardianship [
An appeal to the intermediate appellate court, for review of the juvenile court’s order regarding the CINA permanency plan, must be filed “within 30 days after entry of the judgment or order from which the appeal is taken.” Md. Rule 8-202(a). Rule 8-207(a)(l) provides that such appeals be expedited. Accordingly, the appellant must file a brief within 40 days after the filing of the record, and the appellee
Discussion
A.
It is a longstanding principle that “[ajppellate courts do not sit to give opinions on abstract propositions or moot questions.” State v. Ficker,
There is, however, a limited exception to the mootness doctrine, which we have recognized. See In re Joseph N.,
“if the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision, then the Court may find justification for deciding the issues raised by a question which has become moot, particularly if all these factors concur with sufficient weight.”
Lloyd v. Bd. of Supervisors of Elections of Baltimore County,
The question posed by the petitioners is whether a circuit court may proceed with a TPR hearing while an appeal from a CINA order, involving the parental rights of the very same parties, is pending. In this case, this question is, indeed, moot: there is no longer a CINA appeal or case pending; therefore, a judgment by this Court, whether permitting a circuit court to adjudicate a TPR case during the pendency of a CINA appeal, or not, in the absence of a future case presenting that factual scenario, would simply address a hypothetical set of circumstances and would, thus, be without effect. See Hayman, supra. This, ordinarily, would, and should, prompt us to dismiss the matter before us. See, e.g., State v. Peterson,
As we have seen, a TPR proceeding that proceeds in the normal manner, where a motion to stay is either not filed, or, as here, filed but denied, will last for under 180 days. FL § 5 — 319(a)(1). The process for an appeal arising out of a permanency planning hearing, however, can go on for up to 7 months, even before a petition for writ of certiorari is filed in this Court. Md. Rule 8-207. This means that a TPR determination often will be made while a CINA appeal is still pending. This also means that the fact scenario currently before us, where parental rights are terminated while a CINA appeal is still pending in the same matter, is likely to recur. It is, thus, permissible for us to “exercise our discretion to decide the issue raised in the instant case because it is likely to recur frequently but will escape judicial review” due to the nature of the procedural timelines involved.
B.
The petitioners’ argument is straight-forward and succinct: a juvenile court may not proceed with a termination of parental rights hearing during the pendency of an appeal from a CINA order changing a permanency plan from reunification to non-relative adoption, because an order of guardianship defeats the right of the parents to prosecute their appeal with effect. They rely on this Court’s opinion in In re Emileigh F., 355 Md. 198, 204,
The respondent argues, conversely, that the juvenile court properly denied the motion for a stay of the TPR proceedings. It explains that the trial court’s actions were permissible because that court is bound, by FL § 5 — 319(a)(1), to make a guardianship determination within 180 days of a TPR petition being filed. Since no statute or rule requires the juvenile court to grant a stay in a TPR case pending resolution of a CINA appeal, the respondent submits that the Circuit Court would have violated the 180-day limit prescribed by the statute had the stay been granted. In addition, the respondents distinguish this case from In re Emileigh F., asserting that, while that case involved an action by the Circuit Court that directly impacted the appeal, the juvenile court’s decision to proceed with the TPR hearing in this case did not directly interfere with the CINA appeal. The respondent emphasizes, in that regard, and reiterates that the TPR proceeding and the appeal from the permanency planning order are two separate matters and should be treated as such.
The Court of Special Appeals agreed with the respondent. In re Adoption/Guardianship of Cross H.,
We have long recognized that “in a proper case a court may stay proceedings pending the determination of another proceeding that may affect the issues raised.” Coppage v. Orlove,
In In re Emileigh F., we were asked to decide “whether the District Court of Maryland in Montgomery County, sitting as the juvenile court, erred in closing [a CINA] case thereby terminating its jurisdiction over Emeleigh F. while an appeal was pending in the Court of Appeals.”
“In the instant case, the action taken by the juvenile court addressed matters that were clearly involved in the pending appeal. The court’s action in closing the CINA case and thereby terminating that court’s jurisdiction, if permitted, wouldin essence defeat the right of [the appellant] to prosecute her appeal with effect. We hold that the juvenile court’s actions were inconsistent with the pending appeal and were prohibited.”
Id.,
While the procedural posture in In re Emileigh F. was different, the effect on the pending appeal of the juvenile court’s termination of its jurisdiction in that case, is essentially the same as that of the juvenile court’s termination of parental rights in this case. Here, as was the case in In re Emileigh F., the juvenile court’s action was improper because it was inconsistent with the pending appeal, and because it interfered, impermissibly, with the petitioners’ ability meaningfully to pursue their appeal.
It has been our consistent position that “[ajfter an appeal is filed, a trial court may not act to frustrate the actions of an appellate court.” In re Emileigh F.,
While the TPR and CINA proceedings are and were separate, the TPR proceedings addressed matters that were so inextricably linked to those involved in the appeal arising out of the change in permanency plan, that it would be inaccurate to characterize them as two entirely distinct actions. Not only did both cases involve custody arrangements for the same child, but also, the parental and guardianship rights of the very same parents. Indeed, the very initiation of TPR proceedings depended on the outcome of the permanency planning hearing in the trial court. The result of the CINA case in the juvenile court was also what prompted, and was the basis of, the CINA appeal. The CINA appeal arose directly from a determination, by the juvenile court, following the permanency planning hearing, that the most appropriate permanency plan for Cross H. would not involve reunification with his parents but, rather, should consist of non-relative adoption. The guardianship petition, which resulted in the juvenile court’s termination of petitioners’ parental rights, was filed pursuant to, and consistent with, the juvenile court’s determination, in the CINA case, that the proper permanency path for the child was adoption. It is thus accurate to assert that the outcome of the CINA proceedings, beyond serving as a prerequisite to the TPR proceedings, actually began the process of terminating the petitioners’ parental rights, while the outcome of the guardianship proceedings simply served, in essence, as the final word on the matter.
As we have seen, where a case on appeal involves the same matters presented in the Circuit Court, the Circuit Court is prohibited from acting in a manner that frustrates the appellate procedure, or renders its outcome moot. That is precisely what occurred in this case. The juvenile court’s termination of the petitioners’ parental rights impermissibly interfered with the CINA appeal, because, thereafter, any decision by the appellate court regarding the permanency plan would have been rendered meaningless, and would have been purely hypothetical. Indeed, once the juvenile
While I am cognizant of the statutorily imposed time limits on termination of parental rights proceedings, it is this very fact that causes me to disagree with the intermediate appellate court. The 180-day deadline of FL § 5 — 319(a)(1) is what makes it likely that parental rights often will be extinguished while a CINA appeal is still pending. This 180-day limit, in combination with the timeline for an appeal from a CINA order also, as we have seen, makes it likely that there will be frequent re-occurrences of the very fact scenario presented in this case. Consequently, a holding that would permit TPR/guardianship proceedings to proceed in tandem or concurrently with CINA appeals, bearing on the appropriateness of the former, would simply encourage unnecessary and, thus, wasteful expenditures of judicial resources, as appellate courts often would be required to consider and decide cases whose outcomes will be of no practical or meaningful effect.
Not only is the question before this Court one that is likely to recur, yet evade review, it is one that significantly affects the public interest, and thus, requires this Court to provide guidance, to lower courts, on the proper way to proceed in the future. Lloyd,
Accordingly, not only do I believe that we should have decided the issue presented, but should have, upon reviewing it, held that a circuit court may not adjudicate
I dissent.
Judge GREENE has authorized me to state he joins in this opinion.
Notes
. As a general principle, appellate courts are limited, by statute, to hearing only those appeals that proceed from final judgments. CJ § 12-301; Smith v. Taylor,
There is no question regarding the appealability of the CINA order as to Mr. Aaron R. Upon confirmation of his paternity, Cross H.’s permanency plan was changed to reflect a goal of reunification with Mr. R. ”[W]hen 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.” In re Damon M.,
. Virginia H., in her petition for writ of certiorari in the CINA case, presented the following question for our review:
“Where there is a preference for placing a child in the care of relatives, did the Court of Special Appeals err in affirming the lower court’s denial of a request for custody and guardianship with a fit relative in favor of non-relative adoption?’’
. The petitioners sought review of two additional questions:
"II. Did the circuit court err in refusing to consider placement of the minor child with his paternal grandmother?
"III. Did the circuit court err in terminating appellant’s parental rights?”
We denied certiorari as to those questions.
. “Out-of-home placement” is defined, by Md.Code (1984, 2006 Repl. Vol., 2011 Supp.) § 5-50 l(m) of the Family Law article ("FL”), as the "placement of a child into foster care, kinship care, group care, or residential treatment care.”
. FL § 5 — 525(f), which provides guidelines for a local department's creation of a permanency plan, provides:
"(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-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.
"(2) To the extent consistent with the best interests of the child in an out-of-home placement, the local department shall consider the following permanency plans, in descending order of priority:
"(i) returning the child to the child's parent or guardian, unless the local department is the guardian;
"(ii) placing the child with relatives to whom adoption, custody and guardianship, or care and custody, in descending order of priority, are planned to be granted;
"(iii) adoption in the following descending order of priority:
"1. by a current foster parent with whom the child has resided continually for at least the 12 months prior to developing the permanency plan or for a sufficient length of time to have established positive relationships and family ties; or
"2. by another approved adoptive family; or
"(iv) another planned permanent living arrangement that:
"1. addresses the individualized needs of the child, including the child's educational plan, emotional stability, physical placement, and socialization needs; and "2. includes goals that promote the continuity of relations with individuals who will fill a lasting and significant role in the child's life.
"(3) Subject to paragraphs (1) and (2) of this subsection and to the extent consistent with the best interests of the child in an out-of-home placement, in determining a permanency plan, the local department shall consider the following in descending order of priority:
"(i) placement of the child in the local jurisdiction where the child’s parent or guardian resides; or
“(ii) if the local department finds, based on a compelling reason, that placement of the child as described in item (I) of this paragraph is not in the best interest of the child, placement of the child in another jurisdiction in the State after considering:
"1. the availability of resources to provide necessary services to the child;
"2. the accessibility to family treatment, if appropriate; and
"3. the effect on the local school system.”
. " 'Guardianship' means an award by a court, including a court other than the juvenile court, of the authority to make ordinary and emergency decisions as to the child's care, welfare, education, physical and mental health, and the right to pursue support.” Md.Code (1974, 2006 Repl.Vol., 2011 Supp.) § 3-801(o) of the Courts and Judicial Proceedings Article (“CJ”).
Lead Opinion
ORDER.
The Court having granted the petition for writ of certiorari and upon consideration of the briefs, record, oral arguments, the motion for issuance of order of affirmance and mandate filed by the State and the answer to the motion filed thereto, in the above entitled matter, it is this 29th day of April, 2013
ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the writ of certiorari and the motion be, and they are hereby, dismissed as moot.
BELL, C.J., and GREENE, J., dissent.