*1 Code, See Maryland single in a action. employer one against 427(b)(3); Article, 29 U.S.C. § Employment Labor & 3— 216(b). §
Court of March *2 (Venable, LLP, Baltimore, MD; Mitchell Y. Mirviss Con- stance J. Ridgeway, Darlene Wakefield of Ridge- Wakefield & Woodstock, MD), brief, way, on for Petitioner. Petkovsek,
Seri A. Wilpone, Esq., Amy Esq., and Kelly James, Bureau, Esq., Inc., Aid Legal Hughesville, MD, Amicus of Maryland Legal Curiae brief Aid. (Timchula Smith, P.A., Westminster,
Samantha Z. Smith & MD), brief, on for Respondent. BARBERA, C.J.,
Argued HARRELL, before BATTAGLIA, GREENE, ADKINS, McDONALD and (Retired, LAWRENCE F. RODOWSKY Specially Assigned), JJ.
BATTAGLIA, J. present case we are upon called to address the applicability of our in holding 404, Koshko v. Haining, 398 Md. 441, (2007), 921 A.2d 192-93 in which we recognized parents of a minor child have the fundamental right to make care, decisions regarding custody, and control over their child such that parties seeking third contrary visitation to the parents’ wishes must make a prima showing that the facie absence of such visitation would have a “significant deleterious child, i.e., effect” on the “exceptional circumstances.”1 Our Koshko decision followed the Supreme United States Court’s Granville, ruling Troxel v. 530 U.S. 120 S.Ct. (2000),in L.Ed.2d 49 which the ruled Court as unconstitutional statute, a Washington which third permitted any party seek long with a minor child as as a trial court deter- interest, mined it was the child’s best because the statute no presumption afforded favor of decision- parental making.
Today
C.,
we address the ability of Victoria
born on August
25, 1993,
Evan,
to visit
her half-siblings,
Lance and
over
objections
father,
C.,
of their biological
from
whom
estranged,
Victoria C. is
so much so that Victoria C. had been
Assistance,
declared a
Child Need of
biological
and their
*3
mother, Rieran C. After the
sitting
Circuit Court
as a Juvenile
Court determined that supervised
visitation
Victoria C.
with Lance and Evan was appropriate upon such recommen-
by master,
dation
a
reversed,
the Court of Special Appeals
holding that Victoria C. had not proven exceptional circum-
stances within our Koshko dictates. Victoria
petitioned
C.
for
certiorari,
granted,
which we
to resolve three questions, which
we have consolidated into
rephrased
one and
for clarity:2
404, 441,
171,
Haining,
(2007),
1.
In Koshko v.
398 Md.
921 A.2d
192-93
we
parental
also referred to
justify
unfitness as a basis that would
overriding
parental
respect
a
decision with
to visitation. Parental
case,
present
unfitness is not in issue in the
so we do not address it.
Certiorari,
presented
In her
following
Petition
Victoria
three
2.
issues for review:
public
1. It is desirable and in the
interest to treat children in need
of
diverge
assistance under the best interest standard and to
from this
standard, regardless
age,
contrary
statutory
of
authority
to the
granted
juvenile
to the
court[.]
public
2.
It is desirable and in the
interest to
sibling
differentiate a
grandparent
from a
404,
Haining,
as in the decision in Koshko v.
398 Md.
(2007)
R.,
ter, filed a Petition to declare Victoria C. a Child Need of (CINA), granted by Assistance which was the Circuit Court sitting as a Juvenile Court for County. Carroll The court adjudicated Victoria determining C. CINA after that contin- ued in George residence C.’s home contrary was to Victoria C.’s welfare: Respondent’s
[T]he mother is deceased and her father is unwilling to have her at this time due to the past history he has with respect (prior to her child protective services investigation resulted in an finding “indicated” resulting sending Respondent father’s to Texas to live with a aunt.). maternal The child was with the from approxi- aunt mately February 5, 2010, 2009 until March at which time the child was returned to Maryland. The father attempted hotel, to house the child at a local but away she ran and was ultimately placed at San Mar’s Children’s home after inter- vention the Department of Juvenile Services. Further information was detailed on the record. finds,
The court further That presented evidence finding sustained a of emergent situation, because nature of the such rea- sonable efforts to prevent or eliminate the need for removal made; the child could not be the emergent nature that existed is that: See above. The child had been housed at a local from hotel which she ran away and then reported was runaway. as a She was referred to Department Services; Juvenile and the intervention the Department of Social Services became necessary prior due to incidents alleged father; abuse the Respondent’s the Respon- dent’s mother is deceased.
572 County custody in the of the Carroll remained Victoria C. therapeutic in a placement of Social Services Department House, went into home, eventually and the Nicodemus group were rights over Victoria C. George parental care. C.’s foster terminated; goal reflected a permanency plan5 C. reunification a Court conducted sitting as Juvenile
The Circuit Court the first of which Victoria hearings,6 during periodic review Evan, minor children of Lance and to visit with asked in 2005. C., had married Kieran who been George C. and assigned the master request, to her visitation respect With following findings: the case made contact with her half- would like to have Respondent Respondent’s occurred with the has not siblings. Visitation information regarding compliance thus far. Other father According on the record. Orders was detailed with Court conflicted with sessions had therapy to the Respondent, Article, (1999, 525(f)(1) Family of the Law Md.Code 5. Section 5— Vol.) part: Repl. in relevant states developing perma- (f) plan. (1) In a Development permanency — depart- placement, the local nency plan for a child in an out-of-home give primary consideration to the best interests shall ment child, place- including in-State and out-of-state consideration of both ments. Article, 3-823(h) Proceedings Judicial of the Courts and 6. Section Vol.), (1974, must Repl. provides that the Juvenile Court Md.Code hearings: periodic review conduct (ii) (l)(i) (h) Except provided subparagraphs Periodic reviews.— (iii) hearing conduct a to review paragraph, the court shall of this every commitment is permanency plan at least 6 months until voluntary placement is terminated. rescinded or (ii) hearing every 12 months after conduct a review The court shall child shall be continued in out-of-home court determines that the agrees specific caregiver who to care for the child placement awith permanent on a basis. cause, (iii) good be terminat- finds a case shall 1. Unless the court guardianship to a grants custody of the child court ed after the relative or other individual. case, court good not to terminate a court finds cause If the hearing every months until the case is shall conduct review terminated.... schedule, being her work but that issue is resolved. She would like to see her siblings. *6 Respondent’s
The father stated that not a signifi- there is cant relationship with the at time Respondent this and does not it appropriate believe would be to have contact with the younger Otherwise, at half-siblings this time. he will coop- erate with the other Court’s directives.
Based on these findings, the master’s recommendation was that “visitation Respondent between the and her half-siblings only shall occur if and therapeutically when indicated.” C., thereafter, George filed exceptions the master’s recom- Ultimately, mendation.7 the visitation issue was deferred pending hearing another review in which renewal of the relationship between Victoria C. and her father would be revisited:
ORDERED that father, C., Victoria C. and her George will family attend counseling Mclnerney with Joan in the hope renewing their relationship. The first session will counselor, be for Victoria C. and the the second session will be for George counselor, C. and the and then the third session parties will be both together; and it is further
ORDERED that a review hearing will be scheduled for mid-January of 2011 to if parties see the have prog- made ress in renewing their relationship. At hearing, this the parties agree that the issue of sibling visitation can be 11-111(c) provides any 7. Rule party may exceptions file to a conclusions, recommendations, findings, master's proposed and orders: c. Any party may excep- exceptions Review court if file filed. conclusions, proposed findings, tions to the master’s recommenda- proposed tions Exceptions or orders. writing, shall be in filed with days the clerk report within five after upon the master’s is served the party, specify and shall party excepts, those items to which the and hearing whether the is to be de novo or on the record. exceptions, prompt Upon filing hearing a shall be scheduled exceptions. excepting party on the may An other than the State elect hearing hearing de novo or a on record. If the State is the record, excepting party, hearing supplemented by shall be on the such judge additional evidence as the considers relevant and to which parties objection. raise no hearing In either case the shall be exceptions limited to those matters to which have been taken. agree if the on the parties
addressed
court
do
parties
present
testimony
Both
be able to
and
issue.
will
at such
on the issue of
visitation....
evidence
time
Efforts at reunification between
C. and Victoria C.
failed,
hearing,
scheduled review
which was
prior
C.,
until
Eneran
Lance and
May of
Evan’s
postponed
mother,
party, asserting
“[a]s
moved to intervene as
with whom
is considering
mother
children
the court
visitation,
party
proceed
she has a
to act as
these
right
to the
in the case
extent that her children
ings
participate
involved,”
the Circuit
as a
sitting
are now
which
Court
Juve
master,
thereafter,
assigned
heard
granted.
nile Court
testimony
having
the effect on Victoria C. of not
regarding
estrangement
as well
half-siblings,
visitation with
*7
George
C.
and
C. After Victoria
between Victoria
and
Rieran
case, George
presented
counsel
her
and Kieran C. moved
C.’s
to
decision in
judgment, arguing
pursuant
this Court’s
Koshko,
prima
C.
not met her
“to show
had
burden
evidence of
unfitness or
cir
parental
either
facie
current
demonstrating
cumstances
the
or future detriment to
from that
party.”
the child absent visitation
third
master
motion,
Appeals’s
on the
relying
Special
denied the
Court of
R.,
236,
in In re
136
In review review Koshko and R., strictly portion lar refers to the reference Tamara R., at A.2d where the court in Tamara 252 page [764 844] R., 236, (2000), Md.App. 764 8. In In re Tamara 136 A.2d 844 decided (2007), Haining, Koshko v. Md. 921 171 the Court before A.2d R., fourteen-year Special Appeals whether considered Tamara old CINA, half-siblings objection. parents’ could visit her over their with concluded The court that: protection State’s the of a child who has "The interest minor been parent’s sufficiently compelling justify her care removed from over-riding parent’s opposition sibling, with her if harm there is evidence that denial visitation would the family; necessary separated child who is from her it is not minor separated siblings denial of visitation would also harm whom child seeks to visit.” R., Md.App. at 764 A.2d In re Tamara at indicates that way the best to determine the best interest of a child regard parent’s with to a decision to decline visita- tion parent custody, over whom the has and to place the burden on non-parent seeking visitation to rebut that presumption.
However, Tamara lengthy continued with rather review Troxel but also only page other states at 254 through regarding [764 A.2d the significant specific 844] siblings is, between and a sibling again, who out visitation, of the home and seeking and for a determination by the court to harm to the child who is out of the home at point respect this with to not having visitation with the natural half-siblings. time,
And at this based upon looking Court at this favorable, light time, matter most at this to Victoria’s motion, at looking Respondent’s Exhibit No. Court at deny this time will judgment the motion for based on that specific reference in Tamara R.
George C., thereafter, and Kieran testified about the poten- tial adverse effects on Lance and Evan that could result from visitation with Victoria C. C. related that he believed it would be “emotionally damaging to boys” to introduce lives, Victoria C. into their as a “strong result negative feelings” him; rather, Victoria C. harbored toward he believed that he at should least have “a neutral relationship my daughter before she can have a relationship with the two *8 young C., boys.” likewise, Kieran testified that she did not “feel comfortable introducing my two young children to some- I one don’t already have at least a neutral relationship with”
and that she was concerned with “the hostility my stepdaugh- displays ter my to husband. I am concerned about how she might, unintentionally, but might influence the relationship my between my sons and my husband and sons myself.” After concluding the hearing, the master ultimately made the following findings with respect to the visitation issue:
Your has, Master finds that Respondent since the death of her in mother many life, had in changes her father’s in 2005. remarriage with her specifically beginning father, her stepmother, For time she resided with some brothers, brother, Lance and younger older William and Evan, her admittedly relationship had a close with when she However, in March 2009 she was sent younger brothers. father) aunt, ..., with maternal (by her to live Carrie County in investigation an was here Carroll ongoing while finding that in an “Indicated” to her father. resulted Texas, no During time that the resided in Respondent stepmother her or to maintain effort was made father siblings. that Respondent contact her testified with ask to her speak she did not to brothers. When specifically Maryland her aunt her March returned step- not to return home her father or permitted was mother was then foster care. She placed and therefore adjudicated a in April, was Child Need Assistance summarily that time has been denied Since she including her that there are no siblings, of her on in the and that Mr. display current home pictures would from the in order to away indicated he move area [C.] siblings; avoid between the and her Respondent living that she told it is her fault that she has been is home; that has asked her on family Lance about occasion, has that she is “living someplace but he been told (whether time”; Texas or at this that within Maryland) else being her “bedroom” is now for another past year used stepmother her that she will “unin- purpose; believes father tentionally” boys relationship influence with their hostility she toward her father. displays because visitation, concluding supervised The master recommended C. circumstances existed that Victoria “ ” effect,’ without dis- ‘significant would suffer a deleterious of a lack on cussing any siblings:9 effect of visitation permanency plan be 9. The master also recommended that Victoria C.'s changed planned living permanent ar- from reunification "another rangement,” respondent approaching birthday because "the her 18th date, parent thereby and the with the been strained interaction has making unlikely.” reunification *9 question There is no that Victoria has and will continue to deleterious effect” Aumiller v. Aumil a “significant suffer ler, (2008) 183 Md.App. 84-85 A.2d if not [959 849] permitted type some of visitation with her It siblings. is difficult to compare sibling relationship equally with wherein, grandparents young boys, these two other placed greater courts have priority on visita citing the special siblings bond between tion/contact could if irreparable cause harm some minimal contact is not R., look to In Re Tamara
maintained.
We
136 Md.App.
236, 254-257 and 259
A.2d
[764
a further discussion
844]
2[10]
of this principle.
Respondent’s
See also
Exhibit
McCarter,
Fairbanks v.
(1993).
George C. and his joint wife filed exceptions to the master’s recommendation, taking exception to two factual findings,11 and challenging the master’s decision to deny their motion for 10. Exhibit 2 was a letter written therapist, opining from Victoria C.'s that visitation with half-siblings Victoria C.'s would be beneficial to Victoria. Specifically, George argued and Rieran C. finding that the master's that Victoria C. had no siblings contact with her incomplete was an finding finding of fact because the failed to note that Victoria C. had made siblings no effort to contact living while she was in Texas. They challenged also finding by a factual the master that Victoria C. had done placement. well in her foster care Neither is in issue before us. *10 conclusion recom- master’s ultimate well as the as
judgment,
Koshko:
light
of
mending visitation
Judg-
in not
the Motion
granting
erred
4. The Master
The
case.
Respondent’s
conclusion of the
at the
ment
parties
third
requests
visitation
concerning
case law
of
in favor
presumption
is a
clear that
there
makes
by a
only
that can
be overcome
decision-making
parental
circum-
exceptional
unfitness or
showing
parental
A.2d 171]
6. The Koshko Court interests, nonetheless children’s best to act in their sumed decisions absent into court to defend their hailed may be any require- unfit and without they that are any showing deci- challenging parental grandparents ment that the tend to may circumstances any exceptional plead sion A presumption. proceeding parental override children mandating parent’s that a in a court may result parent’s outside of the party, with a third time spend wishes, no matter parent’s against supervision modifiable, stronger pro- necessitates or temporary how Haining, v. Koshko parental right.” tections (2007). 171] A.2d [921 Md. need,
To address this the Koshko Court added a re- quirement of a threshold showing parental either unfit- ness or exceptional indicating circumstances that the lack of visitation party, with the third that case a grandpar- ent, “significant upon has deleterious effect” the chil- dren involved the case. Id. at 441 A.2d [921 171]. Finally, the Court stated that the application of these principles would apply custody to both and visitation proceedings and to initial orders as well as modifications. Id. at 443-44 A.2d [921 171]. -Koshko,
7. Post
for third
or
party custody
visitation ac-
tions,
analysis
is the
parents
presumed
are
same—
*11
act
the best interest of their children and the court
cannot apply the best interest of the child standard until a
threshold showing
parental
of
or exceptional
unfitness
has
circumstances
been made. Koshko v. Haining, 398
(2007).
404, 423,
Md.
441 [
ter relies on a finding
of
circumstances. This
Aumiller,
concept has been
addressed Aumiller v.
(2008)
Md.App.
A.2d
Brandenburg
[959
849]
and
v.
LaBarre,
(2010).
9. The Brandenburg Court noted that solid evidence and
not speculation must be to presented support the harm by a lack of visitation and that of type evidence necessary meet this might burden be expert testimony. Branden LaBarre, v. burg 193 Md.App. 190-91 A.2d [996 939] (2010). Expert was testimony presented in this matter and that testimony supported the decision of the parents visitation was not appropriate. best interests speaks only The Master’s decision no consideration The Master made Respondent.
of the Evan The Court of Lance and [C.]. the best interests of these children consider the best interests must also of the children in the middle young these putting whether their best and father serves their sister hostility between that, children, were for these who It is clear interests. no pres- left and have young Respondent when the very her, ... the midst relationship placed with ent will have no benefit warring parties battle between testified, a detriment. likely Mclnerney Joan how and decide parents law mandates 11. The Because visita- visitation should occur. any sibling when interest as liberty their fundamental infringes tion on protec- satisfy less will the constitutional nothing parents, role. given tions to their that, in favor presumption responded “[t]he not apply the Parents did decision-making claimed
parental establishing case, right constitutional in this and Victoria’s siblings rightly was maintaining Special the Court argued pursuant affirmed.” She also R., was well-being in In Tamara that her decision re Appeals’s moreover, asserted, that Kosh- consideration. She a relevant cases should be sibling visitation ko was because inapplicable than visita- grandparent standard *12 under a different analyzed Koshko, seeking supervised in was cases, unlike she tion showing that a Finally, alleged prima she visitation. facie made, exceptional circumstances had been because exceptional basis, is by a case case which are “defined on circumstances in at her decision.” arriving the has done exactly what Master turned exceptions, Prior to the resolution that Services Department informed the Social eighteen and a friend. to live with leaving placement her foster she would be thereafter, Court, sitting Juvenile The Circuit Court be terminat- Department supervision ordered that hearing an on the issue exceptions court then held ed. The After further evidence was adduced. in which no visitation hearing argument, judge opinion, denying issued an exceptions and ordering supervised visitation. conclusion,
In reaching his the Circuit Judge Court also reviewed of Special Appeals’s the Court decision in Tamara R., in Md.App. A.2d which the intermediate appellate court that juvenile juris- determined court had diction to order that a in a placement child foster care have half-siblings, with her to the contrary parent’s wishes, as long showing as there is a of harm to the in child care, foster because interest in protecting State’s Because, child. system “Victoria C. has since left the DSS and, for except history juvenile with the system, court she adult,” fully functioning otherwise a judge did not apply the statutory framework for in Assistance, a Child Need of opined visitation; that there was no statutory basis instead he derived a “constitutionally sound common law preference matters,” accorded to in siblings family and a “broader rule” that sibling “a seeking visitation of another care, in is still custody and control of a fit parent, prima states a case for visitation when that facie sibling is visitation,” harmed the denial of which Victoria had proven: R.,
Under the rule of In re Tamara the Respondent presented a prima argument that she was entitled to facie visitation with her siblings because she offered evidence that there was a harm to herself from resulting the denial of Thus, visitation to her minor siblings. she met her burden as required by Maryland’s common law presumption favor of siblings seeking visitation of siblings their in con- Thus, settings. tested the Master appropriately denied the motion for judgment. reasoned, judge however, that the presumption favor
of visitation was rebutted by the evidence presented by George and Rieran C. that visitation would harm Victoria’s Evan, siblings, then, Lance and concluding, that “Victoria C. is her, left without a presumption favor of and thus must meet rigorous the more test ... Koshko.” According to the judge, however, existed, circumstances based upon *13 C., testimony that Lance remembered Victoria
Rieran C.’s visitation, its judge the inferred Lance desired from which was judge inferred that Lance from which absence shortly after re- harmed; sought visitation that Victoria C. Texas; that the benefits of visita- Maryland to from turning to the great disruption would be and the tion to Victoria C. minimal; that C. and Evan would be Victoria lives of Lance siblings; to visit with her and desire genuine had C.’s in the situation as a result C. was actions: Aumiller, lack of memo- Brandenburg and Evan’s
Under a lack of visitation of only can be counted as ry of Victoria “lead to her, amount to a harm that would and thus cannot effects.” The testi- of substantial deleterious an inference however, remem- is that Lance does mony parents, of both to that Lance would like The Court infers ber Victoria. Victoria, an inference that and this raises have contact with effect on Lance virtue of significant deleterious there is probably him with his older sister. This denying standard exceptional meet the circumstances enough Brandenburg in order to overcome the burden with under however, Lance, the Court will also look respect circumstances, determining exceptional factors in traditional Ross v. Hoffman. developed cases, factors used to determine custody from Derived 1) the circumstances are: the existence of biological from the away time the child has been length of 2) the child when care was assumed age parent; 3) emotional effect on the child party; possible the third 4) elapsed of time which custody; period change 5) child; the nature to reclaim the parent sought before the the child and the third of the ties between strength and 6) of the custodian; intensity genuineness and party 7) child; stability to have the desire parent’s custody future in the as to the child’s certainty A.2d 582] Hoffman, Ross v. 280 Md. [372 parent. LaBarre, v. (1977) (cited Brandenberg Md.App. 15). (2010), n. A.2d [996 939] *14 noted, As court and courts before it Brandenburg cases. entirely applicable these factors are not to visitation However, here, hearing, at time of Victoria the visitation away approximately years. had been from the children two old, Evan, years 18 months approximately Lance was family when left the home. There is a concern over Victoria children, possible emotional effect on the as testified George appearance both and Kieran C. The first of Victo- request siblings appeared September ria’s to visit her adjudged about four-and-a-half months after she was (which 2010). April CINA occurred There is no evi- Lance, Evan, relationship George dence that the between anything healthy. and Kieran is but The uncontroverted that, testimony prior leaving family is to Victoria’s home, relationship strong; with Lance was it was less Evan, so with but genuineness nevertheless close. The true, Victoria’s desire to visit her siblings appears and is intensity strong. uncontroverted. The appears e.g., See Hrg. (Q: home, Tr. at 16 you “Since have been out of the can you impact seeing tell us what the of not them has been hole, you?” just on A: “It I has been like a kind of. —I life.”) miss They my them. were an entire section of Although Mclnerney, Joan a private therapist, testified that feelings Victoria’s toward visitation were “[n]ot strong,” the Court discounts testimony this because the purposes therapy those sessions was aimed at reconciling C., the relationship between Victoria and which that witness testified she believed was to paramount continuing her therapy. there is
While concern over the emotional effect possible children, on the in applicable traditional factors deter- mining exceptional circumstances balance appear show Texas, exceptional circumstances. While Victoria was visitation would have been if impractical impossible. She sought visitation within five months of being adjudged CINA, showing a desire to reestablish a relationship her siblings. disruption The to the children’s lives seem to be minimal and the benefits to are great. While healthy parent-child relationship appears between likely parents, minors and the two
two also, healthy despite remain visitation.
Furthermore, that the reason Victo- ignored it cannot be not have ria the Court and the reason she does C. is before with is because she left siblings begin contact with her investigation that found an family following home DSS against plan developed of abuse her father. indication home to her family removal from the resulted Victoria’s aunt’s home Texas. When circumstances maternal Maryland to her home state of to be changed, she returned *15 into the accepted in a hotel because she was back placed home, in her taken into the family being which resulted through the the Carroll Coun- guardianship limited of State appear Services. This would also ty Department Social “case-by- on a circumstance determined exceptional to be an allowed Aumiller. basis, case” infer harmful effects on at least Because the Court can of losing in deleterious effects significant Lance that result sister, the balance of the with his because circum- exceptional traditional factors show applicable stances, situation C. bringing and because the in to an appears this Court itself be before circumstance, met her the Court finds Victoria has in overcoming presumption parents in the afforded burden of their children under the U.S. Constitution. upbringing it in Lance’s and Evan’s judge analyzed then whether was C. and experience best interests to visitation with Victoria concluded it was: widely recognized has as an “sibling relationship been
[T]he one, consideration given significant which will be important In involving family.” courts in cases protection by R., supra. re Tamara clearly Lance has asked about had a Victoria, last saw when he was 3. Victoria whom he and Evan before she left the loving relationship with Lance it in Lance’s home. This tends to show that would be family again. This side emotional best interest see Victoria strengthened by significance placed upon equation Evan, sibling relationship. respect being With there loving relationship having a with Victoria versus not one favors visitation. this ordinarily While would be balanced parents, they the concerns the fact that are siblings tips the scales in favor of a finding that it is Evan’s best interests to have visitation "withVictoria.
George timely and Rieran C. filed a notice of and in appeal, reported reversed, opinion, Special Appeals the Court C., (2012), re Victoria Md.App. initially A.3d 338 determining the standard established Koshko was applicable judice, the matter sub opining: see no why We reason the Koshko test does not apply the instant case. clearly possess Kieran care, liberty fundamental interest custody, and con- result, trol of Lance and As Evan. Victoria’s petition visitation must be considered within a framework that safe- guards George and Kieran’s constitutional right.
Id. at
We first note that re: Tamara R. was decided seven years before the Court of Appeals decision Koshko. In R., therefore, re: Tamara has limited utility analysis to an of third-party Still, visitation post-Koshko. assuming ar- guendo that the of In holding re: Tamara R. still good is law, distinguishable it is from the instant case. case, R.,
In this unlike In re: Tamara the sibling seeking Therefore, R., visitation an is adult. In re: Tamara which the parent’s Court balanced the constitutional interest against the State’s interest in the protection of a minor child, Here, limited relevance. there is no State implicated. interest Although In re: Tamara R. empha- sized the importance sibling relationships, we do not read that, unlike for the proposition Tamara R. to stand
In re:
seeking
third parties
for all other
applied
the standard
for adult sib-
visitation,
apply
standard should
a different
“Maryland
that
acknowledge
visitation. We
lings seeking
that ordinari-
expressed the view
frequently
courts ... have
the same
welfare of the children of
best interests and
ly, the
grow
by keeping
together
them
are best served
parents
256,
Id. at
the same roof.”
and sisters under
up as brothers
sibling
that “the
rela-
recognize
further
Id. at
56 A.3d
seeking
third
siblings,
parties
“that adult
like all
reasoning
Koshko,”
at
visitation,
id.
subject
requirements
are
to the
concluded
Special Appeals
the Court of
56 A.3d at
over-
did not exist to warrant
that
circumstances
exceptional
decision
and Kieran C.’s
coming
presumption
to visit with Lance
from Victoria C.
withholding permission
pivotal inquiry
in their best interests.
and Evan was
circumstances,
rea-
Special Appeals
Court
exceptional
addressed,
Lance and Evan
soned,
being
whether
was not
C., not
to visit with
by
inability
their
Victoria
would be harmed
harmed:
whether Victoria C. was
minor children were
than
on whether the
focusing
Rather
Victoria,
both
having
visitation with
harmed
suf
court considered the detriment
Master and the circuit
with her
from the absence of visitation
fered
Victoria
true that
has suffered
may
it
be
siblings. While
harm,
by an
harm suffered
regrettable
unfortunate and
minor
of visitation with
the result of
denial
adult as
a court’s
children is not a consideration
*17
Brandenburg, supra, 193 Md.
analysis. See
circumstances
(not
harm to
considering
grandpar-
Id. at
There are two presented herein, issues the first of which is whether the Circuit jurisdiction Court had to order sibling visitation. The Circuit Judge Court expressly stated that there was statutory no visitation, basis to authorize such opining that “there is no in Maryland statute similar to the Maryland grandparent visitation providing statute for sibling visitation,” referenced in jurisdictional Koshko for authority; judge, nevertheless proceeded to supervised order visita- tion between Victoria C. and her siblings upon based common law and jurisdictional constitutional authority derived from Tamara R. In order to reach the merits of the matter before us, we assume without deciding, however, jurisdiction exists, remand, although on whether jurisdictional there is a basis to order sibling visitation must explored.12 be The question C. did authority sitting of the Circuit Court as a Juvenile Court to order visitation between Victoria C. and her half- siblings. Although it jurisdiction is true that the lack of can be raised Court, sponte by 8-131(a), sua this County Rule Offen, Council v. 499, 508, (1994), Md. 639 A.2d we do not want to do so giving parties brief, without an opportunity explore, present arguments regarding statutory whether a jurisdiction basis for exists on remand. quandary The exists because necessity having statutory visitation,
basis to order explored such as we in Koshko for the Grand- Statute, parent Article, Visitation Family Section 9-102 of the Law (1999, Vol.). Md.Code Repl. Judge opined Circuit Court statutory visitation; there was however, C., no basis to order us, others, has directed as well as to consider the rubric of Article, Section Family 5-525.2 of provides: Law which *18 588 Koshko that exceptional so applies,
merits involve whether proven Lance and Evan must be relative to circumstances can sibling a CINA be ordered.13 this before visitation case Sibling placement visi- placement foster and and Out-of-home care — rights. tation (a) department place siblings.- (1) A shall local Placement of — siblings placement § 5-525 together who in an out-of-home under are subtitle if: this (1) placed together; siblings the to be in the best interests of it is (ii) siblings together does not with placement of the conflict regulation. specific safety or health (2) siblings together specific conflicts with a placement of the If regulation, department may place the safety the local health or department finding together if makes a written siblings the local placement siblings together best describing how of the serves the siblings. interests of the (b) rights. (1) Any separated to a siblings who are due Visitation — court, including adoptive placement may petition a care or foster jurisdiction siblings, for juvenile over or more of the court one sibling rights. visitation reasonable (2) petitions a petitioner this court to issue If a under subsection order, or to an court: visitation decree amend the (i) may hearing the best hold a to determine whether visitation is in children; interest of the (ii) weigh of each child and base its shall the relative interests promoting greatest on the best interests of children decision children; and welfare and least harm to the (iii) may order appropriate issue an or decree. judice. apply does in the sub Section 5-525 Section 5-525.2 not matter Services; part larger statutory scheme entitled "Child Welfare is of a 5-525.2(b), authorizing juvenile to court Foster Care.” Section visitation, siblings sibling to who are identified in Section order 5-525.2(a) refers placement.” an Read as those who are in "out-of-home context, therefore, 5-525.2(b) applicable only to proper Section is its placement, among siblings are in an which visitation who out-of-home does include Lance and Evan. not remand, argue opportunity, parties The will have on brief and sibling any statutory visitation. whether there are other bases asserts, argument initially, George C. has C. that waived his ordering ruling parental visitation violated his the Circuit Court’s because, initially dispute regarding sibling rights when visitation hearing, parties agreed to defer arose at a review resolution view, family therapy; "[hjaving accepted pending in Victoria C.’s issue visitation,” authority of the Court to decide the Juvenile complain now that exercise of C. "should be heard its parental rights.” authority unconstitutionally interfered with his argument. We find no merit this Parents have a fundamental to direct right H., re upbringing control their children. Samone (2005). 282, 300, 370, 385 Md. A.2d ability children, deny parties third to the minor absent circumstances, v. Koshko 398 Md. Haining, (2007), 921 A.2d an part undeniable of that asserts, however, right. Victoria C. that her status as a Child Assistance, Need as well as her as a sibling, status without, within, renders her rather than a “third-party” desig *19 nation, therefore, and to inapposite Koshko is the instant Our jurisprudence matter. clear parties makes that third are those who are not parents.
Our most significant recent
opinion
which this Court
defined who is a “third party” is McDermott v. Dougherty, 385
320, 418,
(2005).
751,
McDermott,
Md.
869 A.2d
In
808
we
presented
were
with a custody dispute between the child’s
father,
McDermott,
Mr.
and
grandparents,
the maternal
whom he had entrusted the care of his
until
son
he could
return from sea
a
duty
from tour of
as a merchant seaman.
ultimately
We
grandparents
concluded that the
were required
parental
to show
unfitness or exceptional circumstances in
order
retain custody,
before a
engage
trial court could
in a
that,
best interests analysis.14 We reasoned
“the non-constitu-
tional
standard,
best
interests
child
absent extraordi-
(i,.e.,
nary
circumstances,
exceptional)
does not
a
override
parent’s
right
fundamental constitutional
to raise his or her
child when the
is
a fit parent,
case
between
to whom the
fundamental parental right
inherent,
and a
party
third
who
does
possess
not
such constitutionally-protected parental
rights.”
418,
added).
Id. at
869 A.2d
808 (emphasis
at
A
then,
person
parent,
not a
party.
is a third
McDermott,
Since
we
have
grandpar-
held Koshko that
parties,
ents are third
but most significantly,
declared
we
that
320, 422,
Dougherty,
The trial court in McDermott v.
385 Md.
869
(2005),
exceptional
A.2d
811
had determined that
circumstances
existed because of Mr. McDermott’s extended time at sea. We disa-
greed
opined
involuntary
away
and
from
a
time
a child as
result of
employment
could
constitute
circumstances.
Margaret
M. v.
party
a third
Janice
parent
a de
was
facto
(2008).
M.,
K.,
Margaret
A.2d
Janice
Md.
M.,
K.,
of Janice
partner
sought
who had been the same sex
adopted daughter,
custody
visitation with Janice M.’s
and
for
lived
five
Margaret
and
had
with
Maya, with whom Janice
functions, having “divided
performing parenting
years while
food,
Maya’s
changing her
responsibilities
preparing
for
her,
addressing
schooling,
her
diapers, bathing
handling
needs,
caretaking
most other
performing
healthcare
After
parties’
at
certiorari,
the party
the
of
when
to consider
issue
de
requirements
the
facto
asserting
rights
meets
status,
court,
exceptional circum-
finding
without first
parent
unfitness,
the
of
may apply
best interests
parental
stances or
Id. at
A fair reading of McDermott and Koshko leads no other conclusion. reiterate we We what said McDermott:
“In the balancing statutorily-created of court-created or ‘standards,’ test, such as ‘the best interest of the child’ with fundamental constitutional rights, private custody [and actions involving private third-parties visitation] fit, (i.e., parents where the are extraordinary absent circumstances, exceptional) is right constitutional factor; ultimate determinative if only parents are extraordinary unfit or exist is circumstances the ‘best ” interest the child’ test to be considered.... (alterations 685-86, at Id. 948 A.2d at in original), quoting McDermott, 418-19, atMd. 869 A.2d A person, at 808-09. thus, seeking visitation, who is not a or biological adoptive parent full, is third party. CINA, A half sibling, whether or remains a third party. Accordingly, we portions overrule the R. Tamara that are holding. inconsistent with this note, issue, finally, respect
We with to this that Victoria C.’s with Kieran relationship provides C. further support for our conclusion that Victoria C. is a third Kieran party. is not a biological parent Victoria C. There is nothing the record suggest Thus, that Kieran adopted Victoria C. Kieran’s views as to with biological whom her two may children associ- is ate entitled to the same respect parents Koshko. Victoria C. lived with her father and Kieran for only approxi- mately years. four Although DNA George contributes to who Victoria C. today, Victoria C. shares no legal other the marital unit of George and Kieran. *21 C., therefore, half-brothers, as to her very stands in (whether much the same as the grandparents maternal paternal) or did to the minors at the heart of Koshko.
592 turn party, C. is a third we concluded that Victoria
Having
Koshko,
of
we considered
now the
Koshko.
application
to
Statute, Section 9-
validity
Grandparent
of the
Visitation
(1984,
Article, Maryland Code
2004
Family
102 of the
Law
Vol.),15
ordered visitation over the
Repl.
after a trial court
The Hain-
parents,
Hainings.
objection of the children’s
alia,
them,
to
applied
inter
that as
ings
argued,
appealed
interfered
impermissibly
Statute
Grandparent
Visitation
in a
engaged
because the trial court
parental rights
with their
a
analysis without
threshold
of the child”
“best
interests
or
circum-
parental
exceptional
unfitness
showing
either
a
may
that before
court
agreed
concluded
stances.16 We
visitation,
prima
must make a
parties
third
third-party
order
circum-
exceptional
unfitness or
parental
showing
facie
significant
deleterious
lack of visitation “has
stances
subject
petition.”
who are the
upon
effect
the children
omitted)
(footnote
441,
Koshko,
In the instant both circumstances, found that there were ultimately provided: Grandparent Statute Visitation The 15. may: equity An court (1) grandchild by a petition visitation of a for reasonable consider grandparent; and child, grant (2) the best interests of if the court finds it be in grandparent. rights to the (1984, Vol.), Family § Repl. of the Law Article. 2004 9-102 Md.Code reside, unamended, Grandparent at Statute continues The Visitation Article, (1999, Family Repl. Law Md.Code 2012 9-102 of the Section
Vol.). validity challenged Hainings the facial constitutional also light Supreme Court’s decision Grandparent Visitation Statute in Troxel, presumption favor of afforded no because the statute decision-making. We declare the statute unconsti parental tutional, declined to parental reading presumption into the statute instead " valid, applying the 'canon of regarding are their children decisions avoidance’, be provides that ‘a statute will con which constitutional whenever that avoid a conflict with the Constitution strued so " Haining, 425- reasonably possible.’ Koshko v. 398 Md. course 26, D., omitted), (2007) (footnote quoting In re James A.2d 314, 327, (1983). 295 Md. A.2d *22 C., perceived but both on harm to relying erred Victoria that, not to and The Lance Evan. master concluded “Victoria has and will continue to suffer a deleterious ef- ‘significant ” added). likewise, (emphasis fect.’ The Circuit Judge, Court C., focused on harm to primarily relying the Victoria while only on building blocks of inferential effects on Lance adverse Evan; only finding and the of harm or to Lance Evan that the Judge Circuit Court was that made Lance remembered Victo- C., ria leading judge the infer that Lance wanted to visit her, thereafter, with inferring substantial effect deleterious on Lance as a result of a lack of visitation. no There was evidence on this which record demonstrated that or Lance Evan were harmed from a lack of visitation with C. Victoria only contrary. Evidence adduced was to the judgment Special Appeals the Court of the reversed granting order visitation in favor of C. Victoria and remanded the case to the Circuit sitting Court Juvenile Court enter request visitation, an order denying for In re C., 349; at Md.App. A.3d at we agree reversed, the order should be but because the master R., Judge Circuit on Court relied Tamara rather than on standard, applicable Koshko we will remand a consider- ation jurisdiction of whether actually exists to sibling order and, so, if whether deleterious effect on Lance Evan proven. can be
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART; PART AND IN VACATED CASE REMANDED THE TO COURT OF SPECIAL APPEALS WITH INSTRUCTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT FOR CARROLL COUNTY AND TO REMAND THAT TO FOR COURT FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPIN- ION. BE COSTS TO PAID BY PETITIONER. ADKINS, JJ.,
GREENE and dissent.
ADKINS, J., GREENE, joins. dissents which J. I
Respectfully, dissent. The Majority overstates cer- tainty jurisprudence our on doing, visitation. so parental rights beyond law on
it unwisely pilots cases, Supreme as well as the Court holdings prior of our time, it At the were founded. same they decisions on which fault family from the without children who are removed denies their maintain a right their own Further, a fact- the mantle of siblings. Majority, adopting *23 for finder, its factual conclusions those own substitutes trial court. Legal Analysis Majority’s
The
jurispru
our
certainty regarding
The
derives its
Majority
visitation was not even
sibling
three cases in which
dence from
v.
holdings
on
in Koshko
Majority
relies
our
considered.
(2007),
404,
v.
A.2d 171
McDermott
398 Md.
921
Haining,
(2005), and
M. v.
320,
A.2d 751
385 Md.
869
Janice
Dougherty,
(2008).
we
K.,
661,
Md.
948 A.2d
In Koshko
404
73
Margaret
Koshko,
third
See
398
parties.
are
grandparents
held that
that
444-45,
195. In McDermott we held
Md. at
921 A.2d at
are
the
care of a child
temporary
entrusted with
grandparents
McDermott,
417-18,
at
Under are categories non-parent adults merely three specify “third They not establish that terms parties. third do interchangeable. co-extensive and “non-parent” and are party” full or CIÑA— siblings half, It is me inconceivable — and other. parents their each parties can be third vis-á-vis to children Although grandparents benefits offered underestimated, grandparent-grandchild should not be from is lesser and different character person shares with unique life-long relationship and bond nuclear parties are not third siblings. Siblings
595
Rather,
family.
they are core members of
family,
as close
be,
birth as two humans
excepting
can
identical twins.
Sibling relationships
significant
are
they provide
because
support system
built-in mutual
developmental oppor
offer
Ferraris, Comment,
Angela
tunities. See
Sibling Visitation as
Swan,
a Fundamental
Right Herbst v.
Eng.
New
L.Rev.
“
(2004-05).
Importantly,
‘relationships people
share with siblings are often the longest-lasting they will ever
have....
around after parents,
spouses
children,
and even
gone.’”
are
Id. at 717 (quoting
Crispell,
Diane
The Sibling
1996)).
Syndrome, 18 Am. Demographics
(Aug.
Indeed,
siblings age, they may
“[a]s
look to each other for understand
ing,
acceptance, for support, or even for financial assis
tance. Studies show that
sibling
adult
relationships positively
affect
well-being.” Paige Ingram Castañeda, Com
ment,
(Or Sister),
0 Brother
Where Art Thou: Sibling Stand
Texas,
(2003) (footnote
ing
55 Baylor L.Rev.
omitted);
also,
Marrus,
Been,
see
Ellen
“Where Have You
*24
Fran?” The Right
To
Siblings
Seek Court Access To
of
Visitation,
Override Parental Denial
977,
66 Tenn. L.Rev.
(1999)
bond).
980-87
(discussing the importance
sibling
of the
jurisdictions
Some
have held the right
to associate with
one’s
sibling
See,
be a constitutional right.
e.g., Rivera v.
Marcus,
(2d
1016,
Cir.1982)
696 F.2d
1026
(holding that “chil
dren surely possess a liberty interest in maintaining, free from
interference,
arbitrary state
family
environment that they
birth.”);
have known
Johnson,
since
Aristotle P. v.
721
1002,
(N.D.Ill.1989)
F.Supp.
1005
(holding that “children[’s]
relationships with their siblings are the sort of ‘intimate
human relationships’ that are afforded ‘a substantial measure
”
of sanctuary
unjustified
from
by
interference
the State.’
(quoting Roberts v.
Jaycees,
609, 618,
U.S.
468 U.S.
104 S.Ct.
3244, 3250,
(1984)));
G.,
596 in In re
Nonetheless, made I reinforce the observation R. Tamara that: widely recognized has been sibling
[T]he one, significant consider- given which will be important an involving in ation courts cases protection and relationships in family. Recognizing sibling the value that of the evidence importance puts perspective would be harmed denial individual] [an visitation. (2000). 236, 259, 764 A.2d 856 Md.App.
136 right to raise their sure, To have fundamental parents be absolute, it should view right children. that we Yet This Court family presented. situation the context statute, Md. that the visitation grandparent held Koshko (1984, Vol.), § Law Family 9-102 Repl. Code 2004 (“GVS”)1 faulty it allowed constitutionally Article was because ... parties judgment parent ... of a “third to disturb the are either unfit or parents evidence that [without] the relief warranting there are circumstances added). 440, 921 at 192 (emphasis Md. at A.2d sought[.]” 398 forced to brings A for visitation is petition CINA child who nuclear something gone awry has within the do so because re- family nuclear has been family a member that, itself, distinguishes grand- this case from the moved— Granville, in Troxel brought v. parent petitions (2000) I and Koshko. U.S. L.Ed.2d S.Ct. should Troxel nor Koshko be extended submit neither sibling visitation. Proceedings Reading Majority’s Of The Lower Court nonetheless, case, the
Assuming, that Koshko controls this follow holds that Court failed to Majority incorrectly Circuit *25 Vol.), (1984, Repl. Family § the Law Article Md.Code 9-102 of provided that: equity may: An court (1) grandchild by a petition for visitation a reasonable of consider grandparent; child, (2) grant it to be best interests the if the court finds in the rights grandparent. to the visitation particularly baffling Majority’s I find the claim that Koshko. R., Judge “the relied on Tamara rather than on Circuit Court 593, (Maj. Koshko at 88 A.3d applicable Op. standard!.]” 765). below, explained straightforward reading at As applied Circuit Court demonstrates that the court Koshko reaching its decision. Koshko, objec- maternal grandparents, facing strenuous
tion from the children’s
the circuit court
parents, petitioned
grandchildren
for visitation with their three
under the GVS.
410,
Finding
grandpar-
This Court held that the
needed to be “supplemented
GVS
by judicial interpretation with an
presumption
inferred
parental
regarding
decisions
their
are
children
valid.” Kosh
ko,
(footnote omitted).
[I]f wish disturb the parent, of a those third parties must come before our possessed courts of at least prima parents evidence that are facie either unfit or that there are exceptional circumstances warranting the sought relief before the best interests standard is engaged.
Koshko,
Thus,
In this case the Circuit Court Tamara R. standard, the context of discussing after trial court concluded that judgment. denied motion Tamara R. com- successfully rebutted the George and Kieran visitation, rendering in favor of preference mon law by Koshko: governed of this case to be disposition R., In Tamara re Respondent the the rule of Under prima that she was entitled argument presented facie she offered evi- siblings to visitation with her because from the resulting that there was harm to herself dence Thus, she met siblings. of visitation to her minor denial by Maryland’s pre- common law required her burden as seeking of visitation of their sumption siblings favor Thus, Master settings. appro- in contested siblings motion for judgment. denied the priately motion for judgment, the Master’s denial of the Following evidence, by the presented and Kieran C. noted George Master, siblings, although harm to the minor not draw the conclusion that there was harm. Master did Master noted that had con- findings, children, in terms of the level of younger cerns “for his him”; that Respondent towards displayed vitriol to have a allowing Kieran had concerns over Victoria hostility displayed because of the “level father”; that the [sic] towards her Respondent in the placing young Kieran had “concerns for children relationship.” of a volatile middle afforded the minor Accordingly, appropriately Master presump- to rebut the parents opportunity children’s Thus, In re Tamara R. would tion in the common law. that, fit parents presented seem to instruct because the harm, they presumption rebutted the evidence Upon the conclusion of the siblings. arises in'favor case, in favor of presumption C. is left without her, rigorous and thus must meet the more test out- added.) lined above in Koshko. (Emphasis of Kosh- requirements that “the court also observed The trial here, too[,]” is the and “Koshko applied ... must be ko minimum fundamental parents’ limitations on bar which state meet, it is bar over which Victoria C. must and thus rights *27 pass.” must analysis, of its explained scope then the
The Circuit Court in Koshko who were the the children stating “[b]ecause grandpar- whom the were the children subject petition visit, is: this to answer sought question the Court ents and Evan?” effect on Lance significant Is there a deleterious Koshko, investigated then, in with The court accordance circumstances, before consid- exceptional whether there were the standard. The court the best interests of children ering circumstances exceptional concluded that there were indeed finding exceptional in its present detailing this case. circumstances, explained: the court on can infer harmful effects at least
Because the Court losing in effects of significant Lance that result deleterious sister, balance of relationship the with his because the circum- applicable exceptional traditional factors show stances, C. bringing and because the situation Victoria in to be an appears before this Court itself circumstance, the finds that has met her Court Victoria presumption parents burden in the afforded overcoming of their children under the Constitution. upbringing U.S. Evan’s The court then concluded that it would be Lance and best interests to have visitation with Victoria: Victoria, he last saw clearly
Lance has asked about whom had a loving when he was 3. Victoria family Lance she home. This and Evan before left tends to show that it would be Lance’s emotional best again. interests to see This side of the [sic] significance placed upon equation strengthened Evan, being there sibling relationship. respect With having versus not one loving relationship with Victoria ordinarily favors visitation. While this would be balanced parents, they the concerns of the the fact that are siblings tips finding the scales favor of that it is in Evan’s best interests to have visitation with Victoria. passages These from the Circuit Court’s opinion demonstrate that, contrary Majority’s to the it holding, understood and applied (Maj. 591-92, Koshko standard. applicable Op. at 764-65). 88 A.3d at Majority also criticizes the Circuit Court as: Victoria, on harm
[F]ocus[ing] primarily
while relying
on
only
building blocks of inferential adverse effects on
Evan;
only finding
Lance and
of harm to Lance or Evan
that the Circuit
made
Judge
Court
was that Lance remem-
Victoria, leading
judge
bered
to infer that Lance wanted
thereafter,
her,
to visit with
inferring a substantial deleteri-
ous effect on Lance as a result of a lack of visitation. There
was no evidence on this record which demonstrated that
Lance or Evan were harmed from a lack of visitation with
Victoria C. Evidence
only
contrary.
adduced was
to the
*28
765).
(Maj.
atOp.
88 A.3d at
I disagree. The Circuit Court articulated and followed the
very legal
Majority
standard the
sanctions. To hold that the
court
apply
did not
Koshko or did not consider whether there
exceptional
were
that applied
circumstances
to Lance and
Evan
ignore
is to
the Circuit Court’s words and actions.2
children,
Regarding
younger
the court found that:
however,
testimony
parents,
The
of both
is that Lance does remember
Victoria. The Court infers that Lance would like to have contact with
Victoria, and this
an
significant
raises
inference that
there is a
denying
deleterious effect on Lance
virtue of
him visitation with
probably
enough
exceptional
his older sister. This
is
to meet
LaBarre,
Brandenburg
standard
Md.App.
[v.
circumstances
under
(2010)]
Ross v.
280 Md.
ignore its It and the brothers. is impact on both Victoria sidered the court, function, parse to the relative appellate as an not our findings. factual of the trial court’s various strength And, concerning visitation explained, have “[decisions as we court, discretion of the trial are within the sound generally there has been a clear unless and are not be disturbed 447, W., 405, 387 Md. 875 Billy In re abuse of discretion.” (citations omitted). (2005) Majority does A.2d 758 determination that visita how the Circuit Court’s explain and Evan was interests of Lance tion would be the best “ imagined by mark the review any removed from center ‘well court deems fringe of what that beyond court and ing ” 606, 628, Md. Edgecombe, Dehn v. minimally acceptable.’ (2005) North, Md.App. v. (quoting North 865 A.2d (1994)). 13-14, 1025, 1031-32 A.2d made, Lance and Evan were 3 was ruling At the time the old, children young age, At such a years respectively. and 5 like those complicated events conceptualize are unable to consequences and the surrounding departure Victoria’s their ill-equipped explain and are family dynamic, changing Thus, a court any specificity. matter with feelings on the infer, testimony submit- only on the evidence and could based deleterious effect on it, would be harm or a ted to that there Indeed, manner of is left to wonder what such children. one young children satisfy Majority that such evidence would harmed, of a beloved and remembered if the loss would be older sister is viewed as insufficient. a standard Majority announces my
It fear that that a youn- to demonstrate effectively impossible it rendering harm if deleterious de- significant suffer ger sibling would Indeed, sibling. elder under of visitation with an prived Lance as rule, Kieran to abandon were Majority’s that he Victoria, not be able show have Evan would they of visitation being deprived harm from significant would suffer “evidence on By announcing with his older brother. non-petition- harm on the demonstrate[s]” record which th[e] *30 children above that a ing must rise evidence beloved life, disappeared Majority has from the visited child’s demonstrating renders the task of such harm unknowable. 764-65). 591-92, (Maj. Op. at 88 A.3d at Majority’s Holding The Invites Abuse I Finally, Majority’s dissent because I believe the rule will abuse, present impossible invite abused children with an CIÑA, choice. Victoria was declared a and a of Department into investigation allegations yielded Social Services abuse situation, Majority result “indicated.” Yet the looks at this unit, involving damage family to the entire and holds that the Circuit in finding exceptional Court erred circumstances. clear, quite Majority
For reasons that are not construes home, departure being Victoria’s from the and her separated Evan, from Lance pertaining only as to Victoria. This implies finding that a of exceptional circumstances as to Lance markedly finding and Evan is different than a of exceptional circumstances as to Nothing supports Victoria. Koshko Rather, such a requires distinction. Koshko there be exceptional circumstances surrounding the denial of visitation. hold, does, To Majority sibling being that a removed from the house under allegations abuse and later denied reunification with family is not an circum- stance, is to very invite the abuse I describe.
After this ruling, children like Victoria who they believe are being or physically emotionally parent abused face the (a) following abuse, Hobson’s report Choice: either get CIÑA, declared and leave the custody parents their while off; (b) risking having all access to their cut siblings or endure physical Indeed, continued or emotional abuse. under the rule, Majority’s children who leave an abusive household have no recourse to attempt gain visitation with their siblings unless their I former abusers consent to it. find this result deeply troubling. Majority parents transforms the wishes of from pre-
sumptively valid to essentially absolute. Even in a case like or unwill- inability an
this, demonstrate parents in which children, Majority elects their to care for one of ingness *31 expense at the parents given the protections enhance homes. It would forced out of their who have been children protections strong significant to the and no harm great be we to parents, fit were presumptively to the wishes given this, situation like unique in a announce a rule with, if determination harmonious may court make a juvenile 5-525.2(b) Vol.), § (1994, on, Repl. Md.Code not based interests of all Considering the best Law Article.3 Family to the involved, allocating significant weight children from protection does not undermine parents, of the wishes in Koshko. judicial inquiry embedded arbitrary reasons, Special I reverse the Court would For the above of the Circuit Court. judgment affirm the Appeals that he shares the me to state authorizes Judge GREENE dissenting opinion. set forth this views (1994, 2012 disagree Majority’s dictum that Md.Code also with the I 5-525.2(b) only Vol.), Family applicable Law Article is Repl. § (Maj. Op. at placement^]” "among siblings an out-of-home who are in 12). statutory language Nothing in the A.3d at n. n. siblings placed foster care in order for one requires be that all the siblings clearly covers of the statute. The statute to avail herself placed was in foster separated foster care. Victoria have been Majority’s bare assertion and Evan. The separated from Lance care and among siblings are only who meant to cover visitation that the statute is unsupported by text or context of this a home is all removed from statute.